Case: State of Maharashtra Vs. Purushottam Dashrath Borate &amp; Another

where he had kept the articles of deceased on 3/11/2007 itself, there was no reason why he would wait for a period of one day i.e. till 4/11/2007 to show where the said dupatta was kept. Secondly, it has been contended that the said dupatta was recovered from the open space which was accessible to the public. Both these submissions cannot be accepted. It has to be noted that so far as the recovery of articles at the instance of accused No.1 is concerned, they were made before he was formally arrested and taken in custody on 3/11/2007 at 11.30 A.M. Possibly, during interrogation, after he was taken in custody, he must have disclosed the place where he had thrown the dupatta. Secondly, the dupatta was thrown behind the bushes and, as such, it cannot be said that this place was accessible to the public at large. Thirdly, it has to be noted that the said dupatta was thrown by the accused after coming from the place where they had committed the offence and while going towards house of P.W. 11 - Sagar Bidkar. The said dupatta, therefore, was thrown while returning and it was on their way while they were going towards the house of P.W. 11. Therefore, the said submission is not acceptable.110. The learned Counsel appearing on behalf of the appellants/accused also challenged the veracity of evidence of P.W. 12 - Gaursunder Prasad and P.W.13 - Sudhakumari Gaursunder. He has pointed out how the evidence given by P.W.12 and 13 was not probable and also commented on the conduct of P.W.12. We are unable to accept the said submission. P.W. 12 has given reliable, cogent and trustworthy evidence and his conduct is most natural of taking the child to the ground floor to see her (Jyotikumari) off which is perfectly a normal phenomena.111. It has been then contended that there was discrepancy in the IMEI Number and Model Number of the mobile of the deceased Jyotikumari. This submission is also without any merit. The Nodal Officer of Airtel Company viz P.W. 29 - Ganesh Pawar has given an explanation that the first 14 digits are unique and the last digit is always zero and, therefore, though last IMEI number was 2 it was shown as 0 in the records. Similarly, this witness (P.W.29) has stated that Model Number was 1100, though, in fact, the number is 1108. This also is a minor discrepancy and the said discrepancy could have been crept in because it is possible that last digit might have been read as "0" instead of "8". The model number is found inside the mobile and it is written in very small numbers and he might have to stretched his eyes to see the said model number which is written next to IMEI number. It is possible that witness might not have properly noticed the last digit 8 and might have mentioned it as 0. The said discrepancy, therefore, cannot be said to be material discrepancy to discard the evidence in respect of recovery of mobile phone at the instance of accused No.2.112. It has been then contended that there was no material on record to indicate that the deceased was raped. It has been submitted that there was no injury to her private parts and more particularly there was no injury found on the Labia Majora and Labia Minora. It has been submitted that P.W. 16 - Dr Madhav Waghmare who performed post-mortem, initially did not give opinion that the deceased was raped before she was murdered and the said opinion was given only after CA report was received. It has been submitted that the doctor had given an interview to the newspaper in which he had stated that he had not noticed any signs of rape on the victim. There is no merit in the said submission. Doctor (P.W.16) who performed the postmortem has clearly stated that he had suspected that the deceased was raped and then murdered. However, he thought it fit to obtain CA report and deferred his opinion till the receipt of CA report and only after CA report was received, he has given his opinion about rape. Secondly, mere absence of injury on private parts cannot be a ground for coming to the conclusion that there is no rape. If a victim is threatened and does not offer resistance, even in such cases no injuries are found on private parts.The victim was taken to a remote and uninhabited place. Two grievous injuries were found on her wrist. A blade was recovered from the spot. It is highly probable that she might have been threatened with a blade or some other instrument and, therefore, she might not have offered resistance which would explain absence of injuries on her private parts. It has also been contended that so far as the vehicle is concerned, P.W. 4 - Hanumant Chavan has admitted that there were no blood stains in the car. It has also been contended that there was no corroborative evidence to prove that the sheets which were recovered from the car which are at Exhibits 67 to 69 are true and correct since the truthfulness of the said sheets was not verified by the Company. In our view, this can hardly be called as material since it has been established that the victim was in the car along with driver accused No.1 Purushottam and one other person viz Pradeep - accused No.2 and this was witnessed by P.W.12. Her presence in the car also has been corroborated by P.W. 14 - Jeevan Baral who has heard the victim taking names of accused Nos.1 and 2. As we have pointed out earlier that the prosecution has to establish its case beyond the reasonable doubt and the said expression does not mean that there should be absence of doubt and, at the same time, doubt which is raised should not be fanciful and should not be in the form of conjectures and surmises.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The learned Counselhas urged that an opportunity was not given to the accused of being heard and, as a result, they were deprived of their right of free and fair trial.In our view, the said submission cannot be accepted. It is a matter of record that advocate Mr Kawchale who was engaged by the accused has effectively represented the accused and had conducted the trial andnumber of witnesses. However, during pendency of the trial on account of the order passed by the Bar Council of MaharashtraGoa, his Sanad was suspended. He has preferred appropriate proceedings challenging the said order passed by the Bar Council and the said proceedings are pending. He, however, obtained discharge from the Trial Court in June 2011. The accused, therefore, were aware that they had to engage another advocate in June, 2011 itself. Pursuant to the application filed by the accused, this Court had expedited hearing of the trial and had further directed the Trial Court to dispose of the trial within a time bound schedule. Thereafter, accused engaged a new advocate who filed histhereafter, immediately filed an application under section 311 of the Cr.P.C for recalling of allthe witnesses who were alreadyby his erstwhile advocate appointed by the accused. This application was allowed by the Sessions Court and an order was passed after recalling of the witnesses who wereby Mr. Kawchale. The matter was thereafter kept for hearing on 6/8/2011. On that date the matter was adjourned to 22/8/2011. On the adjourned date, application was made seeking time tothe witnesses. The Sessions Court allowed the application and granted time till 15/9/2011, though High Court had expedited hearing of the trial. Again on that date, an application was made for further adjournment. This application was rejected by a detailed order. However, the Court adjourned the matter to 16/9/2011. In our view, therefore, sufficient time was given to the new advocate who was appointed by the accused and it cannot be said that there was any breach of principles of natural justice or breach of right of fair hearing and trial of the accused. Interestingly, the accused, during the course of their arguments on sentence before the Trial Court, had sought permission to appoint Mr. Kawchale to argue their case. The submissions made by the learned Counsel for the accused, therefore, cannot be accepted and the said submission has been rightly rejected by the Trial Court. In our view, therefore, no prejudice has been caused to the accused on account of refusal by the Trial Court to grant further adjournment. It is an admitted position that the said order refusing to grant adjournment was not challenged by the accused before the appropriateour view, since the order refusing adjournment was not challenged further by the accused, it is not now open for the accused to challenge the finding or sentence recorded by the Trial Court after the trial was over in appeal. As noted by us earlier, no prejudice is caused to the accused by virtue of the order refusing to grant adjournment to the accused. It has to be noted here that application filed by a new advocate engaged by the accused for recalling all witnesses was allowed and all these witnesses were again permitted to beby their new advocate. Therefore, it cannot be said that there was failure of justice on account of refusal to grant adjournment to the accused. Ratio of the judgment in Mohammad Hussein vs State (2012) 2 SCC 584  , in our view, therefore, would not apply to the facts of the presenthas stated in his evidence that in his opinion probable cause of death was shock and haemorrhage due to grievous injury to vital organs with skull fracture involving frontal, left temporal, parietal bone with laceration to brain with fracture ribs 2, 3, 4 right lung ruptured with strangulation. He has also observed that strangulation made have been committed by overpowering the victim suddenly from behind by using rope with hands. This witness (P.W.16) was initiallyby Mr. Kawchale and several suggestions were made regarding injuries which were caused and it was suggested that these injuries could have been caused on account of natural causes or accident. The new advocate Mr. A.R. Patil, who was appointed, however, did not seriously dispute that the death was homicidal. In our view, therefore, the prosecution has established that death of deceased Jyotikumari was homicidal and unnatural. The said question is, therefore, answered in the affirmative.In the present case, prosecution has examined 29 witnesses and the entire evidence is essentially circumstantial evidence. Before taking into consideration the rival submissions, It has to be kept in mind that in a case where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn are, in the first instance, to be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Secondly, the circumstances should be of a conclusive nature, and they should be such as to exclude every hypothesis but the one proposed to be proved. To put it in other words, there must be a chain of evidence so complete that it will not leave any reasonable ground for drawing a conclusion consistent with innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.In our view, after having perused the evidence, prosecution has established the chain of circumstances beyond the reasonable doubt for the following reasons.Testimony of P.W. 12 is corroborated in material particulars by his wife P.W. 13Sudhakumari Gaursunder. His wife has reiterated the sequence of events which had taken place on 1/11/2007 from the point of time where the deceased had received "missed call" from accused No.1 to the point where the dead body of deceased was identified by this witness P.W.13 and her husband and also in respect of identification of the accused. P.W. 13 also has beeninitially by advocate Mr. Kawchale and then by Advocate Mr. A.R. Patil. Both the advocates for the accusedthe witness at length. All the suggestions made by advocates for the accused have been denied by this witness. Prosecution, therefore, has established the circumstance of the deceased being last seen in the company of accused Nos.1 and 2 which was proximate in point of time prior to her death. P.W. 12 has established that accused Nos.1 and 2 took the deceased in their cab and they were expected to drop her at her BPO office at Hinjewadi.69. P.W. 11Sagar Bidkar has stated in his evidence that accused Nos.1 and 2 were supposed to pick him up at about 10.45 P.M. He has stated that his Company had informed that accused No.1 was the driver of the cab and the details of the cab also were given to him and he has given those details in his evidence. P.W. 11 has further stated that accused No.1 did not come on time to pick him up and, therefore, he made telephone call to him. He has stated that accused No.1 informed him that he would be coming within a short time to pick him up. However, he did not come within 10/15 minutes and, therefore, he had called him again and, at that time, he has stated that at that time accused No.1 had told him that he had a flat tyre and, therefore, there was delay. P.W. 11 has stated that finally accused No.1 came to pick him up in white indica car bearingat 12.45 A.M. He has further stated that alongwith accused No.1, his friend accused No.2 Pradeep was also in the car and who was sitting on the backseat. When he inquired about Jyotikumari, accused No.1 told him that she had not come with them on that date. P.W. 11Sagar Bidkar has further stated in his evidence that, thereafter, accused No.1 took the cab to the BPO office at Hinjewadi and just before entering the gate, accused No.2 got down from the vehicle. He has further stated that after they entered the premises, accused No.1 persuaded him to make an entry in the roster register that the cab was late on account of flat tyre and, accordingly, he made that entry. He has identified his handwriting atwitness also wasinitially by Advocate Mr. Kawchale and later on by advocate Mr. A.R. Patil. Again, suggestions made to him by the Counsel for the accused were denied and the accused were not successful in creating any doubt regarding his testimony. P.W. 11, therefore, has corroborated the fact that on the fateful night, the accused No.1 was to first pick up Jyotikumari and, thereafter, pick him up. He has established that the accused No.1 did not come on time but came at 12.45 A.M. and gave false excuse that there was a flat tyre and, therefore, there was delay. He has further established that accused No.2 was also in the cab alongwith accused No.1 when they picked him up.70. The next witness who has been examined by the prosecution to establish the presence of the deceased in the cab from 10.15 P.M to 11.00 P.M is P.W. 14Jeevan Baral. He has stated in his evidence that he knew Jyotikumari since she was his childhood friend and they had studied in the same school and that on 1/11/2007, he had called her at 10.30 P.M. and had a long talk with her while she was going to the office in the office car. He has stated that he overheard the conversation between Jyotikumari and the driveraccused No.1 and when she had questioned the driver as to where he was taking the vehicle, he also overheard accused No.1 telling her that one person from Nigdi was to be picked up and, again, thereafter, conversation between the witness and the deceased continued and, thereafter, he again overheard the conversation between Jyotikumari and accused No.1 when she asked him why he had taken the car in the jungle. He also overheard the driver telling her that the condition of the road was not good and, therefore, he had taken another route. He has stated that he became suspicious because of the answers given by the driver and, therefore, he asked her whether she was alone in the car and Jyotikumari informed him that the friend of driver viz Pradeep was also in the car and, therefore, he should not worry. Again, thereafter, he overheard the conversation between the deceased and the driver and the deceased asked the driver why the car had stopped in the jungle and then he heard shout of Jyoti and she said "please what you are doing" and, thereafter, there was some loud noise and the phone was disconnected. This witness has, therefore, established that he had contacted Jyotikumari on 1/11/2007 and from 10.30 P.M to 11.00 P.M, she was in the office car which was driven by accused No.1 and in which accused No.2 was alsothis witness (P.W.14) has beenby Advocate Mr. Kawchale and Advocate Mr. A.R. Patil. In hishe admitted that there was love affair between him and Jyotikumari and he has further stated that he did not know the number of Wipro Company and the number of Sudhakumari or her husband. This witness (P.W.14) has beenat length on various aspects. However, in our view, no significant material has been brought on record. From the evidence of P.W. 12, P.W. 13 and P.W. 14, presence of the deceased Jyotikumari in the office car which was driven by accused No.1 and in which his friend accused No.2 Pradeep was present, has been established by the prosecution beyond the reasonable doubt.man Bodke has stated that Punkaj Bodake informed him about the dead body of one unknown lady lying on Northern side of theexpress highway in the area of Gahunje village. After receiving the call, he went to the spot and saw the dead body. He has also stated that the deceased was wearing yellow colour salwar and light saffron colour kurta and he has also mentioned about the pair of high heels of white colour lying nearby and also the injuries on her hand and onestone lying near by. He has stated that panchanama of the spot and of the dead body was made by the police. In theby Advocate Mr. Kawchale, the witness admitted that before the police he had stated that the deceased was wearing yellow colour kurta and light saffron colour salwar. He has also stated in thethat the house of the accused No.1Purshottam Borate is on Northern side of Express Highway and the houses of both the accused are situated at Village Gahunje. In thehowever, he has explained the reason why he had incorrectly mentioned the colour of the salwar and kurta to the police. He has stated inthat at that time he was frightened and was disturbed and while giving evidence in court he had given different colours of the clothes since he did not understand difference between salvar and kurta. P.W. 1Hiraman Bodke and P.W 8Punkaj Bodake have established that the dead body of Jyotikumari was found on the Northern side of theExpress Highway near village Gahunje and that the deceased was wearing yellow and saffron colour kurta and salwar. These witnesses, therefore, have corroborated testimony of P.W. 12 and P.W. 13 regarding the dress worn by Jyotikumari in the night of 1/11/2007 when she left the house and sat in the office car driven by accused No.1.74. After the dead body was discovered by P.W. 8Punkaj Bodake and a complaint was registered by P.W. 1Hiraman Bodke, the body was taken to the hospital and postmortem was performed. We have already noted that the doctor who performed the postmortem had given an opinion about cause of death and the said doctor also in his evidence has mentioned that he had suspected that the victim was raped before she was murdered. However, in order to confirm the said finding he had waited for the report of CA which is at Exhibits 166 and 167 and after reading the CA report, he had confirmed that the deceased was raped before she was murdered. From the evidence of P.W. 16Dr. Madhav Waghmare, prosecution has established that the death of Jyotikumari was homicidal and that she was raped before she was murdered.This witness (P.W.7) thereafter stated that PI Suryawanshi called one jeep and both the accused and panchas boarded the said jeep and the jeep proceeded as per the directions given by both the accused. He has stated that accused Borate pointed out one house and as per his direction the jeep was stopped in front of the said house and, thereafter, accused Borate entered his house in their presence and he went to his bed room and produced one finger ring, watch and SIM card. He has stated that these articles were kept by the police in one paper and wrapped and these articles were sealed and the panchanama was prepared which is atHe has stated that signatures of panchas were obtained on one label and the said label was affixed to the sealed articles and the panchanama was completed at the house of accused No.1Borate. He has stated that the finger ring was of gold and the watch was of Titan Company and it had a yellow dial and it was a ladies wrist watch and the SIM card was of Airtel Company. This witness (P.W.7) identified the seized articles in the Court. He has stated that, thereafter, accused No.2Kokade asked PI Suryawanshi to take the vehicle near one house and, thereafter accused and panchas entered the house. Accused No.2 thereafter went near a cupboard and opened the door and produced one mobile and a pair of ear rings. He has further stated that police collected those articles in one paper and they were wrapped and a seal was affixed on the said paper and his signature alongwith signature ofwas taken on the label which was affixed on the said articles. Panchanama of the said articles which were recovered at the instance of accused No.2 was prepared which is athas stated that the mobile handset was of Nokia Company and the model number of the said handset was 1100. He has further stated that ear rings were of gold. P.W. 7 identified the gold ear rings and Nokia handset which were produced in court. Again this witness wasat length by Advocate Mr. Kawchale and Advocate Mr. A.R. Patil. The suggestions put to him in thewere denied. P.W. 7Vijay Shirke, therefore, has established the recovery of articles belonging to the deceased which were worn by her when she left the house at the instance of accused from their respective houses and these articles were later on identified by P.W. 12 and P.W.13,and sister of the deceased in the Police Station and thereafter in Court. P.W. 12 and 13 also had given description of the articles before identifying them. Prosecution, therefore, has clearly established that the articles belonging to the deceased were found to be in possession of accused Nos.1 and 2 on the next day i.e. on 3/11/2007, one day after the death of Jyotikumari. Prosecution has established that these articles which were recovered at the instance of the accused were worn by the deceased Jyotikumari which fact has been established by identification of the articles by P.W. 12Gaursunder and P.W. 13Sudhakumari. This circumstance, therefore, further establishes that after committing rape and murder of the deceased, the accused had removed the articles from her body and had concealed them in their houses.77. One other circumstance is the recovery of Odhani at the instance of accused No.1. P.W. 15Ankush Tumkar in his evidence has stated that on 4/11/2007, he had accompanied thePappu Yeole and accused Purushottam Borate who had stated that he would show the place where he had thrown the Odhani and purse of Jyotikumari. Accordingly, he alongwithaccused Purushottam and PI Patil went in a jeep and the accused asked them to take the jeep to Somatne Phata. He has stated that at a particular place accused went to the bushes and produced one Odhani from bushes which was saffron in colour and the said Odhani was accordingly seized under seizure memo and it was wrapped in paper and sealed. His signature was taken on label alongwith signature ofand PI Patil and thereafter it was affixed to the article which was seized. The accused then directed the jeep to be taken near the bridge and, thereafter, when the jeep stopped near the bridge, he stated that the purse was thrown from the bridge. This witness (P.W.15) has stated that 2 to 3 fishermen were asked to take search in the water of the river. However, purse was not found. The witness identified the seized Odhani before the Court. The panchanama in respect of seizure of Odhani was proved atThis is one other circumstance which establishes recovery of Odhani at the instance of accused No.1 which belonged to Jyotikumari. This Odhani also has been identified by P.W.12 and 13 as the same Odhani which was worn by the deceased Jyotikumari and they have also stated in their evidence that the deceased was wearing this Odhani when she left the house.78. Prosecution has then established that P.W. 12 and P.W. 13,and sister of the deceased identified Odhani which was seized at the instance of accused No.1. P.W. 26Sanjay Bodake has stated that he alongwith his friend Sattyawan Bodake were introduced with two persons viz Gaursunder Prasad and Sudhakumari and PSI showed them one sealed packet and they verified that the seal was intact and it was opened in their presence and in the said packet there was saffron Odhani on which there were blood stains and white stains. He has stated that Gaursunder and Sudhakumari identified the said Odhani as belonging to Jyotikumari Chaudhary. After it was identified by P.W.12 and 13, it was again kept in another packet and the packet was sealed and labeled and panchanama at4. Results of the CA reports establish that deceased Jyotikumari, before she was murdered, was raped and semen of accused Nos.1 and 2 was found on her Odhani and clothes and also in the vaginal swab which was taken by the doctor who performed the postmortem. CA reports, therefore, establish that the deceased was raped and semen of accused Nos.1 and 2 was found in the vaginal swab and also on the clothes which were worn by her.85. The other circumstance which has been established by the prosecution is the scratch material which was found in ligature mark on the neck of the deceased which tallies with the Odhani belonging to the deceased which was recovered at the instance of accused No.1.is the CA report in respect of Odhani which was sent to CA.and 222 clearly establish that ligature mark and the material which was found on the ligature mark indicated that the Odhani which was atand the fiber which was detected on the ligature mark tallies with the fiber cloth frombecause name of P.W. 10 has been mentioned in the sheets, it cannot be established that he was driving the vehicle or had driven the vehicle duringon three days in view of the other evidence which has come on record. P.W. 10 has also established that the vehicle was given to accused No.1 on 1/11/2007 at 8.30 P.M.88. Prosecution has then examined P.W. 9Bashir Dastagir Shaikh for the purpose of establishing the presence of accused No.2 alongwith accused No.1 in the vehicle on that day. P.W.9 in his evidence has stated that he is having chicken shop and it is known as Bashir Chicken Centre. He has stated that he knew accused No.2 Pradeep since he resides near his house. He identified accused Nos 1 and 2. He has stated that on the date of the incident, accused No.1 was a driver on the Indica Car, number of which was mentioned by him in the evidence. He has stated that at about 8.00 to 8.30 P.M., he had purchased certain medicines and he alongwith Rahul and accused Pradeep Kokade were talking with each other with accused No.1 Purushottam Borate came in Indica Car and at that time he was alone in the vehicle and he picked up Pradeep alongwith him and went away. In thethis witness (P.W.9) has admitted that he is not conversant with the English language and he could neither read nor write English. He also admitted that he did not know Marathi and could not read or write in Marathi. This witness could not read the number which was written by the Counsel for the accused. The Trial Court, however, in our view, has rightly relied on his evidence of having seen accused No.1 driving Indica car and accused No.2 accompanying accused No.1 in the said car at 8.30 P.M. on 1/11/2007. Merely because this witness was unable to read the number which was written by the Counsel for the accused that cannot be a ground for discarding his entire testimony. It is possible that this witness may have made improvement regarding number of Indica Car, however, this witness who was a friend of accused Nos.1 and 2 had no reason to give false evidence that accused Nos.1 and 2 were seen by him at 8.30 P.M. in the night when accused No.1 was driving a white Indica Car. He has also stated that the number plate was yellow. Therefore, even if the witness may not have remembered number of the said car, he has given rest of the details which further establish another chain in the chain of circumstances.89. The other circumstance which establishes that accused No.1 was driving the vehicle is the evidence of P.W. 17Amol Ramchandra Mugade has stated that he joined the service at Denta Force Company as security and was sent to Wipro Company at Hinjewadi as Security Supervisor. He has further stated that on 1/11/2007, he had a night shift and Anil Pawar, Bharat Shinde, Bhagwat Vanare, Ganesh Nikam were security guards. On 2/11/2007, at about 1.00 a.m., accused No.1Purushottam Borate, driver of Cab No.535 came to him with a roster of the vehicle. He told him that scheduled time to enter the vehicle was 11.00 P.M. and he was asked to show that the vehicle had entered at 11.00 P.M. He, however, refused to make a false entry and mentioned in the roster that the vehicle had arrived at 1.00 A.M. and he signed the roster atHe also identified accused No.1 in the Court. In thehe admitted that the work to check identity cards of Cab drivers was given to Bhagwat Vanare and he did not remember whether Purushottam Borate was having identity card of Wipro Company. No significant material has been brought on record in theof this witness and his testimony of having seen accused No.1 driving white Indica Car on the said day has been established. He has also brought on record the endorsement which was made by him about entry of the vehicle at 1.00 A.M. and also the request made by accused No.1 of making a false entry that vehicle had arrived at 11.00 P.M. and not at 1.00 A.M. He has also stated in his evidence that accused No.1 went away with the vehicle. The chain of circumstances in respect of accused No.1 being in possession of the vehicle from 8.30 P.M. on 1/11/2007 to 1.00 A.M. on 2/11/2007 when he dropped Sagar Bidkar (P.W.11) has been established by this witness and it is also established that accused No.1 took away the vehicle after the entry was made in the roster atProsecution has examined P.W. 29Ganesh Ramrao Pawar in order to bring on record call details in respect of mobile phone number 9960621120 used by deceased Jyotikumari Chaudhary and the call details are atP.W. 29 has stated that he was working as Assistant Nodal Officer of Airtel Company from June, 2007 and, at the relevant time, Vijay Shinde was working as Nodal Officer. He has stated that Vijay Shinde left the employment of Airtel Company and the authorized Nodal Officer is the only person who has access to the server. He has further stated that the information regarding incoming and outgoing calls of the Company is stored in the server of the Company and this information is automatically stored as soon as the calls are made and there is no human intervention in this process and for getting the information about incoming and outgoing calls, the authorized Nodal Officer has to enter the password in the server and then such information is retrieved. The password of the server of the Company is only with the authorized Nodal Officer of the Company and on the date of the incident, he was helping the Nodal Officer Shri Vijay Shinde. He has further stated that the Airtel Company was using the Oracle Data Base System for preserving the data of the phone calls and in the year 2008, there was no Indexing System with Airtel Company and, therefore, data of the phone call which used to be retrieved was not received in ascending and descending form and only from 2009 onwards, Indexing System was installed by the Airtel Company. He then stated that each mobile instrument has unique International Mobile Equipment Identity number (IMEI).He has then stated that IMEI number of cell phone is of 15 digits and out of that first 14 digits are unique to that mobile phone and the first 14 digits are automatically stored in the server of the Company and the 15th digit of IMEI number is stored as zero and that this system is uniform to all the service providers. He has then stated that on 29/1/2008, Airtel Company received a request letter from Talegaon Dabhade Police Station to provide name and address of the subscriber as well as call details of mobile phone No.9960621120. He has then stated that as per record of the Airtel Company, mobile phone number was in the name of Sudhakumari and the call details were then supplied to the police alongwith the covering letter. The aid covering letter is atand the certificate is atHe has stated that these call details were retrieved from the server in his presence by Shri Vijay Shinde who was the then Nodal Officer. He has then stated that entry at Serial No.16 atshowed that there was outgoing call from mobile phone of Jyotikumari to the mobile Phone No.9975558535 and duration of the call was eight seconds and this call was made atP.M on 1/11/2007 which tallies with the evidence given by P.W. 12 that Jyotikumari after she made call to the mobile which was in possession of accused No.1 informing him that she was coming down to get into the cab.The next entry at Serial No.6 from call details at Exhibit 90 is in respect of incoming call received by Jyotikumari from mobile phone No.9986233097 which is the phone number of Jeevan Baral (P.W.14). This witness (P.W.29) has stated that the phone call was made atP.M on 1/11/2007 and duration of that call was 406 seconds. He has then stated that entry at Sr No.17 from call details atis regarding incoming call to mobile phone of Jyotikumari from mobile phone of Jeevan Baral (P.W.14) and, according to the said entry, the call was made atP.M. on 1/11/2007 and duration of that call was 1422 second that is for about 23.7 minutes. This evidence therefore clearly corroborates with the evidence of P.W.14 that he had made two phone calls one at 10.30 P.M. and the other at 10.38 P.M. which lasted for about 24 minutes till about 11.00 P.M. when the phone call was switched off. In thehe has admitted that if a call is made on mobile phone then the signal first goes to the tower of the locality where the mobile phone holder is present and then it comes to the server. He has sated that, he is unable to tell location of main server of the Company in the year 2007 and inward and outward register is maintained in the Company which was not brought by him in the Court. He has admitted that letter fromPolice Officer dated 29/1/2008 was received by the Company and that entry at serial No.1 atshowed that there was incoming call on the mobile number of Jyotikumari from mobile number of Jeevan Baral (P.W.14). Despite the saidby the Counsel for the accused, testimony of this witness, in our view, has not been shaken at all.91. Prosecution has then examined P.W. 18Kishor Vasantrao Ghadge Naib Tahsilar for establishing test identification parade held by him on 14/1/2008 in which P.W.12 identified both the accused. Prosecution through evidence of P.W. 18 has brought on record identification parade panchanama atP.W. 18 during his deposition gave graphic account of what was happened on the date of test identification parade and the manner in which he has held the test identification parade. He has also deposed regarding the date on which he has received the request letter for holding the test identification parade in the instant case. Thus, evidence of P.W. 18 also explains the delay which had occurred in conducting the test identification parade and so also the error occurred in mentioning the date in the test identification parade panchanama. Though this witness was extensivelyon behalf of the defence, after careful perusal of the entire deposition of this witness, we are unable to persuade ourselves to accept that his evidence was shaken in any manner due to elicitation of any particular answer duringSince during the evidence of P.W. 12, it has already come on record that P.W. 12 by then was knowing the name of the driver of the said car and his friend namely Pradeep, we do not propose to dilate in detail about the evidence of P.W. 18 and propose to deal with the defence criticism while dealing with the relevant submissionscircumstance which also clearly establishes that there was tacit agreement between the two accused, can be seen from the evidence of P.W. 10 who has stated in his evidence that when he inquired about friend of accused No.1, he falsely informed him that his name was Shankar and thus tried to hide the identity of accused No.2. Accused Nos.1 and 2, therefore, in accordance with their prearranged plan committed an offence of abduction, rape and murder though they were seen by P.W. 12Gaursunder Prasad and though they were aware that victim Jyotikumari was speaking continuously on mobile phone with Jeevan Baral (P.W.14). All these circumstances, therefore clearly reveal that there was prearranged plan to commit the said offence and the accused were not deterred by the fact that they were seen by P.W. 12 or their names were disclosed by victim Jyotikumari to P.W. 14 when she was being abducted by them. Further inference about conspiracy can be drawn from the fact that after committing the said ghastly act of commission of abduction, rape and murder, they removed valuable articles of the deceased and divided the booty among themselves and kept the articles in their houses and disposed of other articles such as Odhani and purse after removing the valuables from the said purse.93. In our view, taking into consideration the ratio of the judgment of the Apex Court referred to in para 58 hereinabove and the settled law on this point, we have no manner of doubt that the prosecution has established the case of conspiracy beyond the reasonable doubt and, therefore, Trial Court has rightly convicted the appellants/accused for the offence of conspiracy independently and also alongwith other individual offences committed bythe present case Call Log record which has been brought on record at Exhibit 90 by P.W. 29 clearly reveals that P.W. 14 had made telephone call on mobile of victim and she was continuously talking to her while she was being driven by the accused No.1 in the Indica Car. P.W. 16Dr. Madhav Waghmare has stated in his evidence that age of the injury was about 13 hours prior to the postmortem. The postmortem was performed on 2/7/2007 at 3.30 P.M. and if the said time is calculated, it would reveal that the said injuries were caused to her on the previous night between 11.00 P.M. to 12.00 midnight. Call record and the evidence of P.W. 14 reveals that he was having talk with her between 10.30 P.M. To 11.00 P.M. on 1/11/2007. The conversation between the deceased and the witness P.W. 14 therefore was more proximate in point of time prior to her death which took place at about 12.00 midnight and, as such, conversation between the deceased and P.W. 14 on the mobile phone is relevant and admissible under the provisions of section 32