Bombay High Court
Krunal @ Golu S/O Anil Jaiswal And ... vs State Of Maharashtra, Through ... on 18 August, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.205/2015
1. Krunal @ Golu s/o Anil Jaiswal,
aged about 28 years, Occ. Teacher,
r/o Gram Sawargaon, Near Bus Stop,
Tq. Narkhed, Dist. Nagpur.
2. Pradeep Mahadeorao Sahare,
aged about 27 years, Occ. Labourer,
R/o Gram Rajani, Post Dorli,
Tq. Narkhed, Dist. Nagpur.
3. Umesh @ Bhurya s/o Mohan Marathe,
aged about 28 years, Occ. Labourer,
r/o Rohidas Nagar, Balaji Square,
Near House of Ganesh Zade,
Yavatmal, Dist. Yavatmal.
4. Shrikant s/o Bhaucharan Sonekar,
aged 31 years, Occ. Labourer,
r/o Hudkeshwra, Rajapeth,
Plot No.93, Nagpur.
(All accused are in jail) .....APPELLANTS
...V E R S U S...
The State of Maharashtra, through
Police Station Officer, Police Station,
Nandanvan, Nagpur. ...RESPONDENT
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Mr. S. S. Jaiswal, Advocate for appellants.
Mr. S. S. Doifode, A.P.P. for respondent-State.
-------------------------------------------------------------------------------------------
CORAM:- B. P. DHARMADHIKARI & V. M. DESHPANDE, JJ.
Date of Reserving the Judgment
:02.05.2017
Date of Pronouncing the Judgment
:18.08.2017
::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
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J U D G M E N T (Per : V. M. Deshpande, J.)
1. The present appeal is directed against the judgment
and order of conviction passed by the learned Additional Sessions
Judge-2 Nagpur in Sessions Trial No. 294/2011. By the impugned
judgment and order of conviction the appellants are convicted for
the offence punishable under Section 302 read with Section 120-B
of the Indian Penal Code and they are directed to suffer rigorous
imprisonment for life. Insofar as the fine amount is concerned, the
appellant no.1-Krunal is directed to pay a fine of Rs.1,00,000/-
and in default to suffer simple imprisonment for 2 years. The
appellant no.2-Pradeep, appellant no.3-Umesh and appellant no.4-
Shrikant were directed to pay a fine of Rs.5,000/- each and in
default to suffer simple imprisonment for 2 years.
PROSECUTION CASE:
2. Murlidhar Pandurang Burade (PW30) was attached to
Police Station, Nandanvan, Nagpur as Police Inspector from
09.03.2009 to 21.03.2011. On 11.03.2011 at about 11.00 a.m. he
received message from Control Room that one girl is assaulted
near KDK College. He therefore rushed to the spot along with his
staff. When he reached to Darshan Colony in front of Sachin Beer
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Bar, he noticed that blood was scattered there. There, he got
information that the injured girl who was assaulted is moved to
the Medical College and Hospital. He therefore deputed his staff
on the spot of the incident and proceeded to GMCH, Nagpur.
There he met Dr. Singh in the Casualty Department. He informed
him that the girl was brought dead and her dead body is sent to
Mortuary. He therefore went to the mortuary and conducted
inquest over the dead body. The inquest panchanama is at Exh.-
138. While preparing the inquest panchanama, he came to know
the name of the deceased as Monika Dashrath Kirnapure. He
thereafter contacted Police Station from where he got knowledge
that one person has lodged the complaint about the incident.
3. Harishchandra Kaithe (PW28) was Assistant Sub
Inspector and was attached to Police Station, Nandanvan. On
11.03.2011 his duty hours were from 10.00 a.m. to 10.00 p.m. On
the said day, at about 11.15 a.m. Umesh Avtahnkar (PW1) came
to the Police Station and gave his oral report (Exh.73). Upon his
report, Harishchandra Kaithe registered a crime vide Crime No.
51/2011 against the unknown persons for an offence punishable
under Section 302 read with Section 34 of the IPC and Sections 4
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and 25 of the Arms Act. Harishchandra also informed about the
same to PI Burade (PW30).
4. As per the report Exh.-73, informant Umesh Avthankar,
a teacher resides at plot no. 74, Darshan Colony near KDK College,
Nandanvan, Nagpur. He is engaged in the profession of taking
tuitions for the students of 5th to 10th standard. His tuition class
hours are 7.00 O'clock to 9.30 in the morning and from 05.00
O'clock to 8.00 in the evening.
As per the oral report, on 11.03.2011, after finishing
his tuition classes when he had been to his house, he noticed
gathering of the persons in front of Sachin Bar. Therefore, he
went there. On reaching to the said spot, he noticed a girl aged 20
to 21 years was lying there in an injured condition. He also
noticed that a knife was pierced from her shoulder and it was fixed
in the body. He was informed by 3-4 unknown persons from the
said gathering that 3-4 persons assaulted on the girl by means of
knife and they ran away. He therefore immediately informed the
said fact to Mr. Mama Dhote, a Corporator from Ward No. 97 on
cellphone. Mama Dhote (PW2) asked Umesh, the informant that
he should immediately move the girl to the hospital. He and his
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one friend Sumedh took the injured girl to GMCH, Nagpur in an
auto rickshaw. As per the FIR though she was alive, she was not
in a position to speak. When they reached to the Hospital, doctors
declared her "brought dead". Thereafter, police came to the
hospital. There they revealed the identity of the deceased to this
informant and it was also made known to him that she was taking
education in 3rd year of engineering at Radhikabai Mulak College.
5. After registration of the crime, Harishchandra Kaithe
(PW28) went to the spot. In presence of the panchas, spot
panchanama was drawn at Exh.-83. He also seized simple as well
as blood mixed earth from the spot and also took the blood on the
cotton swab and blood stained small concrete stone. The articles
were seized and sealed.
6. While drawing the inquest panchanama, PI Muridhar
(PW30) noticed that knife was present in the back of the deceased.
He took out the said knife with the help of the doctor and seized it
in presence of two panchas by drawing the seizure panchanama
Exh.-139. PI Murlidhar Burade (PW30) took the investigation of
Crime No.51/2011 to him. He seized the clothes of the deceased
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under seizure panchanama Exh.-153. He prepared teams of police
personnel to search the assailants. The broad daylight brutal
murder in a thickly populated locality resulted into agitations from
the people resulting into the question of law and order. He
therefore was busy in tackling the said law and order situation. On
16.03.2011, he handed over the investigation of the crime to
Police Inspector Giri of Crime Branch (PW29).
7. Investigation of Crime No.51/2011 was entrusted to PI
Madhav Giri (PW29) by order of Commissioner of Police, Nagpur.
He received the investigation papers which consist of FIR, spot
panchanama, inquest panchanama, seizure memo, clothes of the
deceased, seizure of weapon and bag from the person of the
deceased. On 16.03.2011 itself PI Giri visited the spot of incident.
He noticed that the place of occurrence was a public place. The
incident occurred in broad daylight. PI Giri felt that the incident
must have been seen by the persons. He therefore instructed the
informants to find out the people who were present on the spot at
the time of incident. During investigation, he was informed the
names of 18-20 persons who were present at the time of incident.
7 apeal205.15.odt
During investigation, he recorded statement of
Mohammad Mudassir @ Rajakhan (PW5) on 16.11.2011 itself.
On the next day, he recorded statements of Pravin
Tambore (PW6) and Raju Sarode (PW7) and other witnesses.
From the statements of witnesses, PI Giri was able to get the
description of the culprits. He therefore deputed teams and also
instructed the secret informants for searching the culprits as
described by the witnesses.
On 19.03.2011, he recorded statements of some
witnesses. On 21.03.2011 he recorded statements of Vandana
Kirnapure (PW3) and Dashrath Kirnapure (PW4), parents of the
deceased.
8. On 31.03.2011, PI Giri received a secret information
from the informant about involvement of the appellant no.4-
Shrikant Sonekar in the crime. He was therefore called and
during the detailed inquiry with him, it was revealed about the
involvement of the appellant no.4 in the crime. Therefore on
01.04.2011, appellant no.4-Shrikant Sonekar was arrested under
arrest panchanama Exh.-210. At the time of his arrest, the
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investigating officer also seized mobile from his possession under
seizure panchanama Exh.-158.
9. During further investigation, he revealed involvement
of appellant no.1-Krunal, appellant no.2-Pradeep, appellant no.3-
Umesh and accused Raju Yadav, who remained absconding till
culmination of the trial. The investigating officer searched for
them in their houses, their friends and relatives but they were not
traced. The investigating officer found that appellant no.1-Krunal
and appellant no.2-Pradeep are residents of tahsil Katol, district
Nagpur. On the secret information which he received it was
revealed to him that they are at Chandrapur and therefore police
team was sent to Chandrapur. They were brought at Nagpur.
Upon interrogation with them, PI Giri found their involvement in
the crime and therefore they were arrested vide arrest
panchanama Exhs.211 and 212 respectively.
At the time of arrest of the appellant no.1-Krunal, 2
mobile handsets of Nokia company and 8 SIM cards were found
with him. Those were seized in presence of panchas by drawing
seizure panchanama Exh.-195.
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On 02.04.2011, the investigating officer sent a request
letter to Assistant Commissioner of Police for obtaining call detail
reports and customer ID of the mobile phones and SIM cards those
were found in possession of accused persons vide Exh.-217.
10. On 03.04.2011, appellant no.4-Shrikant Sonekar when
he was in Police Custody Remand shown his willingness to make
voluntary statement. His statement was recorded in presence of
panchas. By the said statement, he agreed to show the place where
he kept the weapon, the place where the cell phone of the
deceased was burnt and the place where he handed over his shirt
and also the shirt which was then obtained by him from his uncle.
Admissible portion of his memorandum statement is at Exh.-95.
Pursuant to the disclosure statement, appellant no.4-
Shrikant led the police party with pancha and took out a knife
which was hidden under the shrubs near Nag river. The knife was
stained with blood and mud. It was seized and sealed. The
seizure panchanama is at Exh.-96. Thereafter, appellant no.4 led
them to the shop of his uncle at Gandhibagh. The shirt was seized
from the house of his uncle Rameshwar which was stained with
blood. It was seized vide recovery panchanama Exh.-97.
10 apeal205.15.odt
Thereafter the appellant no.4 took the police party to Mhalgi
Nagar from where he procured the shirt of Rameshwar which was
seized under panchanama Exh.-98.
11. On 03.04.2011, the investigating officer arrested the
appellant no.3-Umesh Marathe under arrest panchanama Exh.-
213. One silver ring and one T-shirt was seized from him under
seizure panchanama Exh.-218.
12. On 04.04.2011, the appellant no.3-Umesh made his
disclosure statement in presence of panchas and he agreed to
show the place where he had hidden the shirt which was on his
person at the time of incident. The admissible portion from the
statement of appellant no.3-Umesh is at Exh.-205. From the place
shown by the appellant no.3, the shirt was seized under seizure
panchanam Exh.-206.
13. During investigation, statements of other witnesses
were also recorded. The blood sample of the accused persons
were seized under seizure panchanamas Exh.-196 to 202.
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On 08.04.2011, the investigating officer arrested
accused no.5-Rameshwar and accused no.6-Geeta.
14. On 26.04.2011, the investigating officer requested the
Additional Commissioner for providing Executive Magistrate for
holding test identification parade vide letter Exh.-225.
On 06.05.2011, Executive Magistrate conducted test
identification parade. Since, after recording of the statements, the
eye witnesses Mohammad Mudassir (PW5), Pravin Tambore
(PW6) and Raju Sarode (PW7) were out of town and as the
accused persons were lodged in different District Prisons outside
Nagpur, the test identification parade could not be conducted
prior to 06.05.2011.
Call detail records were also obtained. After completion
of the investigation, charge-sheet was filed.
15. After committal of the trial to the Court of Sessions, the
learned Additional Sessions Judge, Nagpur framed the charge
against the appellants and accused no.5-Rameshwar and accused
no.6-Geeta. All the accused persons denied the charge and
claimed for their trial.
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In order to prove the charge against the accused
persons, the prosecution has examined in all 30 witnesses and also
relied on various documents which were proved during the course
of trial.
All the appellants were also examined under Section
313 of the Cr. P. C. and incriminating evidence that was appearing
against them was brought to their notice. In chorus, they stated
that they are falsely implicated in the crime and they belong to
good family. No defence witness was examined by them.
After a full dress trial, the learned Judge of the Court
below acquitted the accused no.5-Rameshwar and accused no.6
Geeta from the charge of the offence punishable under Section
201 and 202 of the Indian Penal Code. The learned Judge also
acquitted appellant no.1-Krunal and appellant no.2-Pradeep of the
offence punishable under Section 111 of the IPC. The appellants
were also acquitted of the offence punishable under Sections 4 and
25 of the Arms Act and Section 135 of the Bombay Police Act.
However, convicted the appellants for the offences punishable
under Section 302 read with Section 120-B of the IPC and directed
that they should suffer rigorous imprisonment for life and also
directed payments of fine by them.
13 apeal205.15.odt
SUBMISSIONS:
16. Heard Mr. S. S. Jaiswal, learned counsel for the
appellants and Mr. S. S. Doifode, the learned A.P.P. for the State.
Mr.Jaiswal, learned counsel for the appellants
vehemently submitted that the appellants are falsely implicated in
the crime. He submitted that the evidence of eye witnesses Mohd.
Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7)
is required to be discarded since their statements are recorded at
belated stage. According to him, their evidence is marred by
improvements. He also pointed out that the conduct of these
witnesses of not reporting the matter raises a reasonable doubt as
to really whether they were present on the spot of the incident at
the time of attack on the deceased. He has relied on various
judgments of the Hon'ble Apex Court to buttress his point that the
delay in recording of the statements of the eye witnesses which
remained unexplained renders the evidence of the said witnesses
as untrustworthy. The judgments relied upon by the learned
counsel for the appellants on this point are as under:
1. Alil Mollah and anr. vs. State of W.B.; (1996) 5 SCC 369.
2. Ashraf Hussain Shah vs. State of Maharashtra;
1996 CRI. L. J. 3147.
14 apeal205.15.odt
3. State of Maharashtra vs. Raju Bhaskar Ptophode;
2007 (4) Crimes 193 (SC)
4. The State of Tamil Nadu rep. By Secretary to Government Vs.
Subair alias Mohamed Subair & Ors.; AIR 2009 SC 1189
5. Gopal Singh and others Vs. State of Madhya Pradesh;
(2010) 6 SCC 407.
6. Laxman Bapurao Ghaiwane vs. State of Maharashtra;
2012 (4) Bom. C. R. (Cri) 580.
7. Kishor Pandurang Garad vs. State of Maharashtra;
2012 (4) Bom. C. r. (Cri). 589
8. Ganesh Bhavan Patel and anr. vs. State of Maharashtra;
AIR 1979 SC 135.
He also attacked the conduct on the part of the
prosecution inasmuch as it is the submission that all the eye
witnesses surfaced only after the investigation was handed over to
PI Giri (PW29). He also attacked the evidence of Vrushali
Sambhare (PW13) with whom there was a love affair of the
appellant no.1, which was failed. He submitted that it is the case
of the prosecution that there was intention on the part of the
appellant no.1 to eliminate Vrushali Sambhare however,
mistakenly the deceased Monika was done to death. He submitted
that there was no proper investigation about the special motive
and therefore the prosecution must fail.
15 apeal205.15.odt
17. The learned counsel for the appellants relied on various
decisions in respect of the test identification parade and submitted
that the identification by the prosecution witnesses needs to be
discarded. He therefore submitted that the appeal be allowed.
18. Per contra, Mr. Doifode, the learned A.P.P. vehemently
submitted that not only through the eye witnesses but also
through the unbroken chain of circumstances, the prosecution has
proved the guilt of the appellant. He submitted that Mohd.
Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7)
who identified appellant nos.3 and 4 as assailants not only during
the course of test identification parade but also from the witness
box as the assailants of Monika. He also submitted that from the
circumstances which were duly proved by the prosecution,
appellant no.1-Krunal and appellant no.2-Pradeep who were in
contract with each other hatched a criminal conspiracy to
eliminate Vrushali (PW13). He also submitted that the appellant
nos. 1 and 2 were in touch with Shailaja (PW11) till the time of
incident. He also relied on various decisions of the Hon'ble Apex
Court and prayed for dismissal of the appeal.
16 apeal205.15.odt
EVALUATION OF PROSECUTION CASE:
(A) Nature of death of deceased Monika:
19. Exh.-138 is the inquest panchanama. It was drawn by
Murlidhar (PW30) in presence of pancha when he visited the
Mortuary of GMCH, Nagpur where the dead body of Monika was
kept. This document is admitted by the defence during the course
of trial. The investigating officer and pancha noticed in all 10
injuries on the person of the deceased.
20. The prosecution has examined Dr. Vipul Ambade
(PW17) who conducted post mortem over the dead body of
Monika. Dr. Vipul, prior to the autopsy over the dead body of
Monika has conducted more than 3500 post mortems. Thus,
Dr.Vipul, who is an Associate Professor, is an experienced doctor.
21. While conducting autopsy, Dr. Vipul noticed that there
were 9 cuts over the full shirt with sleeves on the body of the
deceased. He also noticed 5 cuts over the white inner baniyan.
One school bag was hanging on the shoulder of the dead body
having one cut. On external examination of the dead body,
Dr.Vipul Ambade noticed following injuries:
17 apeal205.15.odt
"1. Incised wound over medial aspect of left arm
lower 3rd size 1 ½ " X ¾" muscle deep, traverse,
margin clean.
2. Stab wound over left flank just above iliac
crest in anterior axillary line 1 " X ½ " cavity deep,
transverse angles acute, margins clean, directed medially
and upward.
3. Stab wound left interscapular space at T2
level, 1" left midline, ¾" X 2" muscle deep, horizontal
angles acute, margin clean, directed laterally and
downward.
4. Stab wound 2' below injury no.3, 1 ¼ ' X ½"
X cavity deep, horizontal angles acute, margins clean
directed laterally and downward.
5. Stab wound right scapular region, 2 ½" right
to midline, oblique, 1 ½ X ½" X cavity deep, angles
acute, margin clean directed medially and upward.
6. Stab wound- left axillary region in posterior
axillary line, 1 ½ X ½" X cavity deep, at level of nipple
angles acute margin clean, directed anteriorly and
medially.
7. Two stab wounds over back at level of T-8, ½
apart, 4" acute, margin clean, directed medially and
downward.
8. Stab wound back at level of T-7, 1' right to
midline verticle. ½ X ¼ X muscle deep, angles acute,
margin clean directed anteriorly.
9. Stab wound left flank posteriorly 4" left to
18 apeal205.15.odt
midline 1 ¾ X ½" X cavity deep, angles acute margin
clan, directed anteriorly medially and upward.
10. Stab wound, back at level of T-7, 5 ½ right
to midline 1' X ½" X cavity deep, angles acute, margin
clean, directed medially."
As per the evidence of Dr. Vipul all the injuries were
ante mortem. He also noticed following internal injuries on the
dead body of the deceased.
"1. Cuts present to the walls of thorax and
pleura corresponding to external injury no.3,4, 5, 6, 7,
8 and 10 with 1 ½ liter blood and clots present in the
plura cavity.
2. Through and through stab wound to lower
lope of right lung corresponding to injury no.10.
3. Stab wound present to upper lope of right
lung near lower margin corresponding to injury no.5.
4. Through and through stab wound to lower
lob of left lung corresponding to injury no.6.
5. Cuts present to wall of internal peritoneum
corresponding to injury no.2 and 9 with approximately
750 ml of blood and clots in the abdomen cavity.
6. Cuts present in mesentry of small intestine
corresponding to injury no.2 and 9.
7. Stab wound to spleen corresponding to injury
no.2.
19 apeal205.15.odt
According to the autopsy surgeon, injury nos, 2, 4, 5, 6,
9 and 10 were individually sufficient in the ordinary course of
nature to cause death. Dr. Vipul prepared post mortem notes and
they are at Exh.-135. As per the autopsy surgeon, the cause death
was shock and hemorrhage due to stab wound to the vital organs.
In view of the evidence of Dr. Vipul and the injuries as
mentioned in column no.17 of the post mortem report Exh.-135
there cannot be any hesitation in our minds that the nature of
unnatural death of Monika was homicidal one.
(B) FIR:
22. The printed FIR Exh.-74 is drawn on the basis of the
oral report Exh.-13 lodged by Umesh Avthankar (PW1). As per
the FIR, Umesh (PW1), after returning from conducting his tuition
classes which he runs at Kharbi, Saibaba Nagar by name 'Abhinav
Tuition Classes' was present in the house. He noticed a gathering
of various persons behind Jai Ganga Maa Apartment, in front of
Sachin Bar at plot no.20 on the road. He therefore went there.
After reaching there he noticed a girl aged between 20-21 years
was lying in an injured condition having injuries on her back, face
20 apeal205.15.odt
and waist. There he was informed by some unknown persons that
3-4 unknown persons assaulted her and they ran away. He
therefor informed the said fact to Mama Dhote (PW2) who
directed him to shift the injured to the hospital. Therefore, Umesh
and his friend Sumedh shifted the injured to the hospital in an
auto rickshaw. Though that time she was alive, she was not in a
condition to speak. After reaching to the hospital, before any
treatment the Doctor declared her dead.
23. From the FIR it is clear that the first informant is not a
witness to the actual assault. His evidence which is in conformity
with the FIR shows that when he reached to the spot, the injured
was having injuries on her body and one knife was pierced into
her left shoulder and it was present there.
The fact of laying the girl in an injured condition was
immediately conveyed by Umesh to Moreshwar @ Mama Dhote
(PW2) on phone. This is corroborated by Moreshwar Dhote
(PW2) that he has received a phone call from Umesh (PW1).
24. In the FIR itself it is stated that it was revealed to the
first informant on the spot by some unknown persons who were
21 apeal205.15.odt
present on the spot that 2-3 persons assaulted on the girl. Thus, it
is clear that the incident of assault was witnessed by some persons.
The conduct of Umesh shows that he is a dutiful and
concerned citizen who shifted the injured to the hospital. As a
concerned citizen, he appears to have made inquiries though
cursorily with the persons who were present as to whether
anybody has witnessed the incident.
There was no reason for Umesh (PW1) to state
incorrect fact while lodging the report that it was revealed to him
by some unknown person that she was attacked by unknown
assailants.
The learned counsel for the appellants invited our
attention to the cross-examination of Umesh and submitted that
Umesh has admitted that none had narrated to him who had
stabbed the girl.
In the FIR or even from the witness box it was never
the claim of Umesh that anybody has narrated to him the name of
any of the assailants.
25. Crime No.51/2011 was registered on the basis of the
oral report lodged by Umesh by Harishchandra Kaithe (PW28).
22 apeal205.15.odt
The report was lodged against the unknown persons. The report
was lodged immediately.
From the FIR and from the evidence of Umesh (PW1)
that the prosecution has established that the deceased was
attacked. The said incident is witnessed by 2-3 persons. During
the course of investigation, ultimately it was revealed that
Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju
Sarode (PW7) had witnessed the incident of assault on the
deceased.
(C) About deceased Monika:
26. Vandana Kirnapure (PW3) and Dashrath Kirnapure
(PW4) are parents of deceased Monika. It is stated that Monika
was taking education at KDK Women's Engineering College. She
was studying in 3rd year. She was residing at Pratibha Pawar
Women's Hostel at Nandanvan. She was having a cellphone.
27. The version of parents of Monika that she was studying
in KDK Women's Engineering College and was staying in Pratibha
Pawar Women's Hostel is corroborated by Shailaja Shende (PW11)
and Vrushali Sambhare (PW13).
23 apeal205.15.odt
28. The uniform which Monika used to put on her person
while attending the college is similar to the uniform which
Vrushali Sambhare (PW13) used to put on her person as it could
be seen from the evidence of Shailaja (PW11) and Vrushali
(PW13).
As per the evidence of Shailaja, the deceased was slim
and fair in complexion and was about 5.5" tall.
Vrushali (PW13) is also slim and was having near about
same height as that of the deceased and both Monika the deceased
and Vrushali (PW13) used to go to their college on foot, is the
evidence of Shailaja (PW11).
The description of the deceased and Vrushali (PW13)
is required to be observed since it is the case of the prosecution
that the accused persons were intending to eliminate Vrushali.
However at the time of the assault they mistook the deceased
Monika as Vrushali and killed her.
29. As per the version of Vandana (PW3) mother of
deceased Monika, she used to contact her on cellphone. Her
evidence shows that on 11.03.2011 at about 10.30 a.m. i.e. the
date and time of assault when Vandana was at Ramtek she
24 apeal205.15.odt
received a phone call from Monika. It is her evidence that when
they were talking, she heard a sound of shriek. Therefore,
Vandana made inquiry. However, there was no reply. Hence she
disconnected the said call and then again tried to contact.
However, the said call was not materialized.
In the cross-examination itself, Vandana has described
the shriek from Monika as, "Aai ga" (Oh! Mother). She also stated
from the witness box that before that shriek, Monika informed her
that there is a good news since she was declared winner in a
presentation and on the day of the incident she was going for her
viva and therefore she asked for blessings. That time Vandana
gave her best luck. As per Vandana, thereafter immediately she
heard the shouts of Monika.
30. From the evidence of Shailaja it is brought on record
that generally the girls of hostel used to tie scarf to their faces
while going to the college.
Vrushali (PW13) not only corroborates the said aspect
but also stated that whenever she used to go out of the hostel she
used to tie scarf on her face so also the deceased Monika also used
to tie scarf to her face when she used to step out of the hostel.
25 apeal205.15.odt
(D) Evaluation of evidence of eye witnesses:
31. As per the evidence of the prosecution, the incident of
assault was witnessed by Mohammad Mudassir (PW5), Pravin
Tambore (PW6) and Raju Sarode (PW7)
Mohd. Mudassir (PW5) is also known as Raja Khan. As
per his evidence when he was present in the house at Shrinagar
where the incident took place at about 10.45 a.m. he heard loud
shouts. Therefore, he came out of his house. That time he noticed
two boys were assaulting a college girl by means of knife. As per
his evidence, he witnessed the incident from about 15-20 ft. As
per his evidence, he raised shouts and ran towards the injured.
Some other persons also ran towards the injured. By that time,
the assailants ran away. As per Mohd. Mudassir, when he reached
near the girl, she was breathing and he noticed that a knife was
stabbed in her shoulder from behind and he could see that only
the handle of that knife was outside.
From the witness box, he gave the description of the
assailants as one was tall and another was dwarf and they were
aged between 21 to 22 years. It is also his evidence that both of
them were having knives with them. The taller one took his knife
along with him so also the cellphone of the girl. From the witness
26 apeal205.15.odt
box, he identified the assailants as accused no.3-Umesh and
accused no.4-Shrikant as assailants. He also pointed out that it is
accused no.3-Umesh who gave a knife blow on the shoulder of the
girl. This prosecution witness also identified the knives which
were shown to him. He also states on oath that the victim girl was
wearing gray coloured pant and yellow coloured shirt and blue
coloured shoes. He also identified her scarf.
32. Pravin Tambore (PW6) states that on the date and time
of the incident, he had been to Nandanvan locality for his work as
property dealer. At the time of the incident, he was standing near
a pan shop in front of Sanchin Beer Bar which is on the other side
of the road. On oath the said Pravin (PW6) states that the incident
occurred at about 15-20 ft. away from him. He witnessed two
accused were assaulting one girl with knives. He ran towards the
spot. That time, the assailants fled away. He found that the girl
was lying and the knife was stabbed to the backside of her
shoulder. He states that two persons from the persons gathered
there took her in an auto rickshaw.
Pravin (PW6) also gave description of the assailants
that one was tall and another was short. Also from the witness
27 apeal205.15.odt
box he identified the accused no.3 Umesh and accused no.4-
Shrikant as assailants. He also identifies the knife so also the
clothes of the deceased including the scarf.
33. The other eye witness is Raju Sarode (PW7). At the
relevant time he had been to Darshan Colony for his work and was
going to his maternal aunt. At the time of the incident, he was
present in front of Sachin Beer Bar. As per the evidence of Raju,
he witnessed the incident from about 12 to 15 ft. As per his
evidence two boys were assaulting the girl with knife and when he
ran towards them the boys ran away. He also states that the knife
was pierced in the backside from her shoulder and the knife was
having circular handle. Two persons took the said girl to the
hospital in the auto rickshaw.
From the witness box the said Raju identified the
clothes of the deceased including scarf and also weapon, the knife.
Also he gave the description of the assailants and pointed out the
finger towards accused no.3-Umesh and accused no.4-Shrikant as
the assailants at the time of identification of these accused in the
Court.
28 apeal205.15.odt
34. The learned counsel for the appellants seriously
challenged the version of these three eye witnesses. According to
him, none of these eye witnesses were present on the spot. These
three eye witnesses are purposefully introduced by the prosecution
as eye witnesses. He submitted that their police statements are
recorded belatedly. That shows that these persons are not
witnesses to the assault made by the accused nos.3 and 4 as
claimed by them. In order to buttress the submission in that
behalf he relied on various decisions which are already mentioned
in the earlier part of the judgment.
The statement of Mohd. Mudassir was recorded on
16.03.2011. The learned counsel for the appellants submitted in
the cross examination that this prosecution witness has admitted
that he has not lodged the report about the incident to the police.
The law laid down in respect of appreciation of the
belated recording of police statements of the witnesses is not res
integra. Only on the ground of recording the police statement
belatedly, that by itself the evidence of such witness does not earn
disqualification as witness to the incident. If the said witness gives
explanation regarding his recording of the statement belatedly and
29 apeal205.15.odt
if the said explanation is acceptable to the Court, the evidence of
said witness need not be discarded.
Insofar as the Mohd. Mudassir (PW5) is concerned his
evidence shows that he has given explanation. The cross-
examination shows that he was frightened and disturbed due to
his witnessing the said incident and since he was frightened he did
not narrate the same to the police.
The aforesaid explanation is also seriously challenged
by the learned counsel for the appellant by pointing out that this
prosecution witness is seen sacrifices of about 15 goats on Bakri
Eid and he does not get frightened or disturbed. Therefore
according to the learned counsel, the explanation as given by this
witness that he was frightened cannot be accepted.
Sacrificing of goat on the eve of Bakri Eid and
witnessing horrified incident of assault on an aspiring college
going girl by two full grown assailants by means of deadly
weapons like knives can never be equated. Therefore, in our view
if this witness was frightened especially when he has seen the
incident just from 15 ft. from him it cannot termed as unusual and
therefore merely because his statement is recorded after 6 days,
we are not agreeing to the submissions made by the learned
30 apeal205.15.odt
counsel for the appellant that this prosecution witness was
introduced purposefully as an eye witness.
Further the evidence of this prosecution witness is
found to be unshattered in respect of the assault made on the
deceased. This witness has also identified the appellant nos. 3 and
4 as assailants from the witness box and even at the time of test
identification parade that was conducted by the prosecution.
In view of the unshattered evidence of this prosecution
witness about the incident and the fact that he has given
explanation for his recording of belated police statement which is
found to be plausible, this Court accepts the evidence of this
prosecution witnesses to the effect that he has seen the actual
assault by the appellant nos. 3 and 4 on the deceased Monika.
35. Insofar as the evidence of Pravin Tambore (PW6) is
concerned, his statement is recorded on 17.03.2011. In the
examination-in-chief, he has given his explanation as under:
"At the time of incident, I ran behind the assailants.
One of them had raised knife against me and threatened
me. Therefore, I got frightened and immediately went to
my house and thereafter I fell ill."
31 apeal205.15.odt
His evidence further shows that he is recovered from
his illness in the evening of 16.03.2011 and on 17.03.2011 he on
his own went to Nandanvan Police Station within whose
jurisdiction the incident had occurred. There he disclosed to the
officer that he is the eye witness. That time, he was asked to go to
the Crime Branch. Thereafter he went to the Crime Branch where
his statement was recorded.
The omission sought to be brought on record in respect
of the explanation given by this prosecution witness is not at all
proved. Thus, the evidence of this witness also can safely accepted
about the assault made by the accused nos.3 and 4 on the
deceased.
36. There are no good reasons for not accepting the version
given by Raju (PW7) in respect of the incident which he has seen.
The omissions found in his evidence are minor in nature and those
do not touch the core of his evidence in respect of the actual
assault.
32 apeal205.15.odt
37. The evidence of Madhav Giri (PW29) who has
conducted investigation shows that the investigation was handed
over to him by order of the Commissioner of Police, Nagpur.
Earlier to that investigation was with Murlidhar (PW30) From the
evidence of Murlidhar, it is clear that due to this broad daylight
murder of a helpless girl, there was law and order problem in the
locality and he was busy in tackling the same.
38. As per the evidence of Madhav Giri, on being entrusted
with the investigation on 16.3.2011, on the said day itself, he
visited the spot and since it was a public place and the incident
took place in a broad daylight, he felt that the incident must have
been seen by people and, in our view, correctly. Further, in the
FIR it was disclosed by Umesh (PW1) that he gathered information
from the persons that the incident was seen by 2-3 persons. As per
the evidence of Madhav Giri, he instructed the informants to find
out the persons who were present on the spot at the time of the
incident. He was informed that near about 18 people were
present at the time of incident.
Thus, till 16.03.2011 till the investigation was handed
over to Madahv Giri (PW29) there was no progress in the
33 apeal205.15.odt
investigation. As per the evidence of Madhav Giri on 16.03.2017
and 17.03.2017 itself, he has recorded statements of the eye
witnesses. Thus, the investigating officer had acted swiftly.
Swiftness in the action of the investigating officer cannot be
construed as an interested investigating officer and thereby
introducing the witnesses of his own choice and hence submission
of the learned counsel for the appellants in that behalf is
unacceptable, especially when the eye witnesses themselves have
given a reasonable and acceptable excuse for not approaching to
the police.
39. In view of above, though there is a delay in recording
the statements of the eye witnesses, in our view, it is not fatal to
the prosecution. These three prosecution witnesses have seen the
murderous assault in which the unfortunate girl lost her precious
life. We find the version of these three eye witnesses as credible
and cogent one. Thus in view of the scrutiny of evidence of these
three prosecution witnesses, there is no hesitation in our mind that
these three persons are witnesses to the truth.
34 apeal205.15.odt
(E) MOTIVE:
40. According to the prosecution, appellant no.1 had a love
affair with Vrushali (PW13) which failed. Therefore he planned to
eliminate Vrushali however mistakenly, Monika lost her life.
41. Vrushali Sambhare (PW13) is the resident of village
Pandhurna in Madhya Pradesh. She took admission in the
engineering college at Nagpur in the year 2008. She completed
her graduation in Bachelor of Engineering in the year 2012.
During her stay at Nagpur for her education purpose, she used to
reside at Pratibha Pawar Ladies Hostel, Nandanvan, Nagpur where
the deceased Monika also used to stay. Both these girls were
studying in the same college. Both these girls were staying in the
same ladies hostel. This prosecution witness states that whenever
she used to go out of the hostel she used to tie scarf on her face
like Monika.
42. Her evidence shows that she knows accused no.1-
Krunal. Her evidence shows that their informal introduction with
each other turned into love affair between them. She states that
the cellphone of her which was having SIM No. 9021312272 was
35 apeal205.15.odt
given to her by appellant no.1-Krunal himself. As per the evidence
of this prosecution witness, their love affair was continued till
November, 2010. During their courtship, Vrushali noticed that
appellant no.1-Krunal is irritating one and used to extend threats
to her. Therefore, dislike to him was developed in her mind.
43. As per her evidence, once when she was proceeding to
Nagpur from Pandhurna, she received a message from appellant
no.1-Krunal that she must alight at Katol else he will commit
suicide by leaving a suicide note mentioning her name. It is not in
dispute that at the relevant time, appellant no.1-Krunal was
staying at Katol and was working as a teacher in the school. Due
to the threat, she alighted at Katol and met him.
Her evidence also shows that she informed Krunal that
due to his irritating nature, he was not liked by her and she wishes
to discontinue the friendship with him. On that as per the evidence
of this prosecution witness he requested that they will celebrate a
small party and thereafter he would stop even sending messages to
her. He also asked her to bring her laptop to upload a song to
which Vrushali consented.
36 apeal205.15.odt
44. According to the evidence of Vrushali, on 17.01.2011,
she along with her friend went to Haldiram Hotel at Sitabuldi,
Nagpur by taking her laptop. There the appellant met her. He
took her laptop bag. When Vrushali asked to place an order of
snacks, he got annoyed and left the place along with her laptop
bag, is the version of Vrushali from the witness box.
In the said bag, apart from her laptop, pendrive, mobile
and identity card was also there. Therefore, Vrushali was required
to make a phone call from the mobile of her friend to appellant
no.1 and requested him to return her laptop bag. Upon that
appellant no.1-Krunal stated that if she wishes to get her laptop
bag, she should meet him alone. On getting such answer from
appellant no.1-Krunal, Vrushali suspected about his object and
therefore she refused to meet him alone. He did not turn up and
therefore Vrushali was required to return to her hostel.
45. It is further the evidence of Vrushali that on the next
day, at her request, her father Dilip Sambhare (PW14) came to the
hostel. She narrated the incident to her father. After getting the
information about laptop, Dilip Sambhare (PW14) had a talk with
37 apeal205.15.odt
the appellant no.1-Krunal who asked him to come to Sakkardara
on the next day. As per the evidence of Dilip, he informed the
appellant no.1 that he should return the laptop else he would
report the matter to police and will also inform to the inmates of
his house. According to the evidence of Dilip, that time the
appellant informed him on phone that Vrushali had a love affair
with him. However, now she has a love affair with other boy. As
per the evidence of Dilip on the next day he had been to
Sakkardara where he met Krunal who returned the laptop to him.
Dilip identified appellant no.1-Krunal from the witness box.
46. According to the evidence of Vrushali (PW13) when she
took the laptop, she found that her entire data was deleted and
obscene pictures and videos were uploaded.
47. It is further evidence of Vrushali that on 22.02.2011,
appellant no.1-Krunal along with one of his friend came to her
college and pleaded for excuse. However, that time Vrushali even
refused to recognize him and therefore the security guard ousted
them. That time, appellant no.1-Krunal got annoyed and extended
threat to her that she will be killed. It is further the evidence of
38 apeal205.15.odt
this witness that since she stopped contacting with him, he
extended threats to kill her.
48. The entire evidence as stated above by these two
prosecution witnesses is not challenged at all when they were
cross-examined. The only suggestion given to Vrushali was that
she knows that if some untoward incident happens it has to be
reported to police. According to the learned counsel for the
appellants since all these facts were not narrated to police
therefore they never existed.
49. Merely because the incident was not reported to police,
the Court cannot put question about the truthfulness of the version
given by Vrushali or her father.
50. Vrushali was taking education in the engineering
college. She was away from her house and she was staying at the
hostel. Before breaking up, she was in love with Krunal.
Therefore, there is every possibility of not reporting the matter to
police since it would have unnecessarily precipitated the matter.
In our view, in fact both; Vrushali (PW13) and Dilip (PW13) have
39 apeal205.15.odt
shown maturity in not reporting the matter to police to avoid
unnecessary precipitation of the matter.
51. The prosecution has also examined Kunita Barai
(PW15). She also was one of the inhabitant of Pratiba Pawar
Ladies Hostel and was taking education at Chaturvedi College of
Engineering.
This prosecution witness was room-mate of Vrushali
(PW13). Though she never met appellant no.1-Krunal, she was
knowing him since it was informed to her by Vrushali that he was
her boyfriend.
52. The evidence of Kunita (PW15) shows that in the
month of January, 2011, Vrushali was disturbed. She asked her
the reason that time it was disclosed to her by Vrushali that
appellant no.1-Krunal used to make frequent phone calls to her
even when she is in college. It was also disclosed to her by
Vrushali that Krunal has asked her not to talk or go out with
anybody. He used to get annoyed and therefore she is unable to
match with him and she would like to break up their relationship.
On getting such an information, Kunita deposed that she told
40 apeal205.15.odt
Vrushali if there is no match between them then it will be very
difficult for them in future and thereafter she left the decision to
herself.
Kunita's evidence further shows that one day she had
been to the hostel, at 6.30 p.m., Vrushali returned and started
weeping. On that she asked Vrushali that when she has decided to
break up the relation then why she is weeping. On that it was
disclosed that appellant no.1-Krunal took away her laptop and
informed that if she wants her laptop back, she will have to spent
a night with him. As per the evidence of Kunita, it was informed
by Vrushali that appellant no.1-Krunal always want to establish
physical relationship with her and therefore she is disturbed.
As per the evidence of Kunita (PW15) on the next day,
at the request of Vruhali, she made a call to Krunal and requested
to return the laptop. As per the evidence, appellant no.1-Krunal
told that he does not have any laptop. She informed Krunal that if
the laptop is not returned, the matter would be informed to father
of Vrushali. On that Krunal disconnected the phone call and
thereafter Vrushali called her father and brought her laptop.
Kunita was not at all cross-examined by the defence. In
fact the defence lawyer declined to cross-examine Kunita. Thus,
41 apeal205.15.odt
from the unchallenged version of Kunita, evidence of Vrushali
(PW13) and Dilip (PW14), the incident of taking away the laptop
from Vrusahli and thereafter returning the same is duly
corroborated.
53. The evidence of Shailaja (PW11) also throws light not
only in respect of the motive on the part of the appellant no.1 but
also his interaction with the appellant no.2 from which it can be
reasonably deduced that they were planning to kill Vrushali.
54. At the relevant time, Shailaja (PW11) was taking her
education in first year of Polytechnic in KDK College. She was also
residing in Pratibha Pawar Ladies Hostel where the deceased
Monika and Vrushali (PW13) were residing.
55. Her evidence shows that she knows appellant no.1-
Krunal. Not only that she knows his nickname is Golu. She was
introduced to him prior to about three months of the incident by
her friend Mangesh Kawale. She was also having mobile number
of Krunal. She has identified Krunal who was sitting in the dock in
the Court. She also states on oath that she knows appellant no.2
42 apeal205.15.odt
Pradeep since he was introduced her by Krunal. She also gave the
mobile number of appellant no.2-Pradeep. This prosecution
witness was having two mobile phones. One was in the name of
her father Bhimrao and another in the name of Dipak Kawale, the
elder brother of his friend Mangesh Kawle who is not only her
friend but her relative also.
56. According to this prosecution witness once when she
and Mangesh were taking tea at a tea stall near her hostel that
time the appellant Krunal came there and had a talk with
Mangesh. Mangesh introduced him with her and informed that he
is resident of Sawargaon. Krunal made inquiry about Shailaja
about her education and where she is residing. When she disclosed
that she is resident of Pratibha Pawar Ladies Hostel, he asked her
whether Vrushali Sambhare resides in the said hostel. Shailaja
pleaded ignorance. However she told that she will make inquiries
as to whether the person by name Vrushali stays in the hostel. She
made inquiries in the hostel and found that Vrushali stays in the
hostel and she made a call to Mangesh and informed the said fact.
43 apeal205.15.odt
57. As per the evidence of Shailaja, after eight days, when
she was taking tea at tea stall, appellant no.1-Krunal came there
and inquired with her about Vrushali and asked her to give her
mobile number. Though she was not in a mood to disclose her
mobile number but that time the appellant no.1-Krunal disclosed
her that prior to break up he and Vrushali were in love. He also
informed her that he has to take Rs.14,000/- from Vrushali and
therefore he has asked her mobile number. Thereafter she gave
her mobile number to Krunal. It is her evidence that Krunal
informed him that he will call her whenever he will come to
Nagpur. After 2-3 days, she received a call from Krunal and he
asked as to whether Vrushali has left the hostel. On that it was
informed by her that Vrushali had gone to college.
58. As per the evidence Shailaja, prior to 5-6 days of the
incident, she has received a phone call from Krunal who informed
her that he is sharing her mobile number to his friend, appellant
no.2-Pradeep Sahare and she should talk to him when he will be
calling her. It was also informed that Pradeep also knows Vrushali
and since it is not possible for him to come to Nagpur on and
often, his friend Pradeep will recover the amount from Vrushali.
44 apeal205.15.odt
He also asked Shailaja that whenever she receives phone call from
Pradeep she should inform about Vrushali's leaving hostel is her
version from the witness box.
59. According to the evidence of Shailaja, she received a
phone call from appellant no.2-Pradeep. He asked her whether
Vrushali had gone to the college. She tried to see Vrushali,
however she was not found in the hostel. Therefore, it was
informed that she had left for the college.
60. It is also the evidence that on 10.03.2011, she received
a phone call from appellant no.1-Krunal at about 9 to 10.30 a.m.
to inform that he had come to Nagpur and he is accompanied with
appellant no.2-Pradeep and his two other friends. It is also stated
by Shailaja that Krunal informed her that on that day anyhow,
they were intending to get Vrushali and they are standing outside
the hostel. Therefore, she came to the balcony of the hostel to
notice the presence of the appellant no.1-Krunal, appellant no.2-
Pradeep and two other boys who were standing outside the hostel.
45 apeal205.15.odt
61. From the witness box, she gave description of those two
other boys who were standing along with appellant nos.1 and 2.
Not only that she identified them as accused no.3-Umesh and
accused no.4-Shrikant as the boys who were present along with
the appellant Krunal on 10.03.2011.
62. It is further the evidence of this prosecution witness
that she received a phone call from Pradeep who informed her
that she should keep watch on Vrushali. Thereafter she received a
phone call from Krunal who informed her that he is leaving the
place from where he is standing since if Vrushali noticed his
presence, she will not come out of the hostel. He also informed
her that appellant no.2-Pradeep will be standing there and she
should inform about Vrushali to Pradeep.
63. It is further the evidence of Shailaja that on 11.03.2011
i.e. the day of incident, she received phone call from Pradeep in
the morning. He asked her whether Vrushali had gone to the
college. That time it was informed that she had not gone to the
college. Thereafter also he received a phone call from Krunal
asking about the same thing. Therefore, she searched for Vrushali
46 apeal205.15.odt
in the hostel by going to her room. That time she was not present
her room. As per her version, then she came to the balcony of the
hostel noticing a girl with scarf tied on her face and uniform of the
college was going to the college. That time she thought probably
Vrushali had left the hostel and accordingly she informed Krunal
that she had left. This information was given by Shaileja to Krunal
on phone when the said girl was leaving the hostel. According to
the version of this witness, she received a phone call of Krunal at
10.30 a.m.
64. The evidence of this witness shows that she fell in the
trap of Krunal in respect of giving information about Vrushali
because she relied on the version of Krunal that he was to recover
Rs.14,000/- from Vrushali and since he was her friend.
On 11.03.2011 ultimately at about 10.30 a.m. the girl
was assaulted and she was done to death.
65. The evidence of this prosecution witness clearly
establishes not only the motive of the appellant no.1 to eliminate
the Vrushali but also that the prosecution has proved a conspiracy
was hatched in between the appellant nos.1 and 2 to execute the
47 apeal205.15.odt
plan to eliminate Vrushali and appellant nos.3 and 4 were
introduced and in fact they executed the plan. However on a
wrong person.
(F) Corroborative Evidence:
(i) Test Identification Parade:
66. Before the Court, accused no.3-Umesh and accused
no.4-Shrikant were identified by Mohammad Mudassir (PW5),
Pravin Tambore (PW6) and Raju Sarode (PW7), these accused
persons were also identified by these witnesses when the test
identification parade was conducted.
Madhav Giri (PW29), the investigating officer on
26.04.2011 requested the Collector for providing Executive
Magistrate for holding test identification parade. In that behalf, he
gave a request letter to the said authority (Exh.225).
67. The test identification parade was conducted by Prasad
Shantaram Mate (PW9), the Tahsildar. The District Magistrate,
Nagpur directed him to hold the test identification parade.
Accordingly, on 30.04.2011, Tahsildar Mate sent a letter to Crime
48 apeal205.15.odt
Branch and informed that the test identification parade will be
conducted on 03.05.2011. On 02.05.2011 he inquired with the
Jail Superintendent about the presence of accused nos. 3 and 4 in
jail. On that it was informed that both of them are not in jail at
Nagpur. Accused no.3-Umesh is in Jail at Akola whereas accused
no.4-Shrikant was at Bhandara jail. He requested the authorities
for brining them at Nagpur Jail by 05.05.2011. Therefore, on
03.05.2011, identification parade could not be held.
On 05.05.2011, Tahsildar Mate again informed the
Crime Branch, Nagpur that the identification parade will be held
on 06.05.2011 at Central Jail, Nagpur so as to serve the summons
to the witnesses and keep them present for identification parade.
68. Accordingly on 06.05.2011, test identification parade
was conducted in presence of panchas.
In the said test identification parade, Mohammad
Mudassir (PW5) identified accused no.4-Shrikant whereas Pravin
Tambore (PW6) and Raju Sarode (PW7) identified both accused
i.e. Umesh and Shrikant. Accordingly, he prepared memoranda of
test identification parade which are at Exh.-90 and 91.
49 apeal205.15.odt
69. The learned counsel for the appellants assailed the
procedure of holding test identification parade. According to him,
copy of letter Exh.-93 issued by Tahsildar Mate to the Jail
Superintendent does not mention that he requires 12 dummy
persons of physique and personality similar to that of the accused.
He submitted that since there are procedural lapses, the entire test
identification parade is of no value.
70. Test identification parade is not a substantive piece of
evidence. The object of holding test identification parade is to
enable the investigating agency to satisfy themselves that they are
in right direction of the investigation and to satisfy the witnesses
that the person who they suspect is real one whom they have seen.
A useful reference of the authoritative pronouncements of the
Hon'ble Apex Court in State of Maharashtra vs. Suresh; 2000
SCC (Cri) 263, can be made which was pointed out by the learned
Special Public Prosecutor before the learned trial Court during
trial and which finds place in the judgment of the lower Court.
71. In one of the decisions of the Hon'ble Apex Court in
Mukesh & Anr vs. State For NCT Of Delhi & Ors.; AIR 2017 SC
50 apeal205.15.odt
2161, wherein in paragraph 145, the Hon'ble Apex Court observed
thus:
"In the case at hand, the informant, apart from
identifying the accused who had made themselves
available in the TIP, has also identified all of them in
Court. On a careful scrutiny of the evidence on record,
we are of the convinced opinion that it deserves
acceptance. Therefore, we hold that TIP is not dented."
72. Thus as observed above in the preceding paragraphs,
accused no.3-Umesh and accused no.4-Shrikant were identified by
Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju
Sarode (PW7) as assailants of the deceased Monika. All the
accused persons were identified by the witnesses during the course
of trial is a substantive piece of evidence. Said evidence, in our
view is duly corroborated even by the test identification parade.
(ii) Seizure of Cellphones:
73. On 31.03.2011 when Prakash Urkude (PW21) was
returning from movie at Liberty Cinema along with his friend
Dipak, 3-4 persons gave their introduction to them as police
personnel from Crime Branch and requested him to act as pancha.
They were taken to the Crime Branch. There they were introduced
51 apeal205.15.odt
to PI Giri (PW30). In their presence, a mobile phone was seized
from a person who was introduced to him by PI Giri as accused
no.4-Shrikant Sonekar. This prosecution witness pointed out
finger towards accused no.4-Shrikant during recording of his
evidence at trial. Exh.-158 is seizure panchanama under which
mobile handset from accused no.4-Shrikant was seized.
74. It is further his evidence that on 01.04.2011, when he
had been to City Survey Office for some work, that time also the
person who met him in the earlier night took him and his friends
in the office of the Crime Branch. The investigating officer Giri
was present there. He introduced a person by name Krunal Jaiswal
i.e. the accused no.1. He gave 4 SIM cards and 2 mobile phones to
PI Giri. PI Giril opened the mobile and noted the numbers of the 2
mobile phones in panchanama. Exh.-159 is relevant panchanama.
From the accused no.1-Krunal in his presence 6 separate SIMs
were seized whereas 2 SIMs were in the 2 mobiles
75. Mr. Jaiswal, the learned counsel for the appellants
challenged his testimony on the ground that this pancha witness is
a man of choice of the investigating officer. However, nothing
52 apeal205.15.odt
that sort of is brought on record during the course of his cross-
examination. Further the judicial note can be taken of the fact
that the City Survey Officer and the office of the Crime Branch are
situated in the same building.
76. The prosecution has also examined Makrand Vidhvans
(PW22). He was serving as Nodal Officer with Tata Tele Services.
On 07.04.2011, he received a request letter, Exh.-161, from
Mr.Savant, Assistant Commissioner of Police, Crime Branch,
Nagpur for providing call details of mobile No.7276633814,
8149975303 and 8983939580. These three mobile numbers
belong to Rambhau Pandar, Nilesh Jaiswal and Dipak Kawle,
respectively. Exh.-163 is Call Detail Reports of Mobile No.
7276633814, 8149975303 and 8983939580. Similarly, Call Detail
Records of Mobile No.7276633814, 8149975303 and 8983939580
are available at Exh.-164 to 166 respectively and those are proved
by Makrand Vidhvans (PW22).
77. Similarly, the prosecution has examined Chadrakant
Bhor (PW23) who was serving as Nodal Officer with Reliance
Communication Limited. He received a requisition letter from
53 apeal205.15.odt
Mr.Savant, Assistant Commissioner of Police, Crime Branch,
Nagpur to provide I/d and Call Details of mobile no. 9021312272
and 9595327099 from 01.05.2010 to 31.03.2011 (Exh.-168). As
per his evidence, he provided Call Detail Reports of the aforesaid
mobile numbers and those are available at Exh.-171 and 172
respectively. It is to be noted that Markand Vidhvans (PW22) and
Chandrakant Bhor (PW23) also produced the required certificates
under Section 65 (B) of the Evidence Act and those are duly
exhibited.
78. As per the document Exh.-162, mobile no.8149975303
was standing in the name of Mr. Nilesh Jaiswal. His address is
shown as Plot No. 288, Sawargaon, Tq. Narkhed, Dist. Nagpur.
Exh.-211, arrest panchanama shows that accused no.1-Krunal is
resident of Sawargaon. Further, it is not in dispute that Nilesh
Jaiswal is brother of appellant no.1-Krunal.
79. According to the evidence of Ku. Manjusha Mohriya
(PW24) who works as Assistant Teacher in Saint Paul English
Medium School, Katol, the mobile nos.9595327099 and
8144975303 were given to her by appellant no.1-Krunal who also
54 apeal205.15.odt
used to work as Assistant Teacher in the said school.
Further, the evidence of Shailaja (PW11) shows that
she was knowing Krunal as he was introduced to her by her friend
Mangesh and his mobile number is 8149975303.
The evidence of Shailaja also shows that accused no.2-
Pradeep who was noticed by her with Krunal was having mobile
no.7276633814.
80. The prosecution has brought on record Call Detail
Records to show that appellant no.1-Krunal and appellant no.2-
Pradeep were in contact with each other as per Exh.-164 to 166.
So also these two accused persons were in contact with Shailaja
(PW11) till the actual assault. In fact, Shailaja (PW11) has
specifically stated that she received a phone call from accused
no.1-Krunal and accused no.2-Pradeep on 05.03.2011,
07.03.2011, 09.03.2011 and 10.03.2011. It is also her evidence
that on the day of the incident i.e. on 13.03.2011 at about 10.21
and 10.30 a.m. she received phone calls from accused no.1-Krunal
and accused no.2-Pradeep thereby they made inquiries with her as
to whether Vrushali (PW13) has left the hostel or not. Thus, it is
clear that evidence of Shailaja (PW11) is duly corroborated
55 apeal205.15.odt
through the Call Detail Records which are brought on record by
the prosecution that accused no.1-Krunal and accused no.2-
Pradeep were in touch with Shailaja for tracking the movements of
Vrushali (PW13).
(iii) Absence of accused no.1-Krunal from duty:
81. Smt. Manjusha Joshi (PW20) was Principal at St. Paul
English Medium School till May-2011. She knows accused no.1-
Krunal. As per her evidence, Krunal was serving as Assistant
Teacher at St. Paul School, Katol during her tenure at Katol. Her
evidence shows that on 09.03.2011, 10.03.2011 and 12.03.2011,
he was absent from his duty without prior permission.
Accordingly, Leave Without Pay (LWP) was endorsed at the
attendance register Exh.-156. On 11.03.2011 i.e. on the day of
the incident, appellant no.1-Krunal was present in the school. The
learned counsel for the appellant therefore submitted that the
prosecution has failed to prove the conspiracy.
The aforesaid submission of the learned counsel, in our
view is meritless. On 10.03.2011, appellant no.1-Krunal was
absent from his duty. For that no permission was obtained from
the school authority. As per the evidence of Shailaja (PW11) on
56 apeal205.15.odt
10.03.2011 at about 9.00 to 9.30 a.m. she received phone calls
from Krunal informing her that he had come to Nagpur and he is
accompanied by accused no.2-Pradeep and two more friends. Her
evidence shows that when she came in the balcony of the hostel
that time she noticed the presence of appellant no.1-Krunal with
other accused persons. Thus, presence of Krunal one day prior to
the actual incident at Nagpur is proved. He was absent from his
duty on that day. Even Shailaja does not claim the presence of
Krunal on 11.03.2011. Her evidence shows that she received a
phone call from Krunal in between 10.00 to 10.15 a.m. asking the
movement of Vrushali (PW13) so also her movements were
gathered from her by accused no.2-Pradeep. From the evidence of
Shailaja, it is clear that even on the day of the incident, Krunal was
keeping a close eye and watch on the movements of Vrushali.
Though away from Nagpur he was continuously in touch with
Shailaja and appellant no.2-Pradeep, on cellphone.
(iv) Recovery:
82. When accused no.4-Shrikant was in the Police Custody
Remand, on 03.04.2011, he made his discovery statement. The
said discovery statement was made by him in presence of Suhas
57 apeal205.15.odt
Khare (PW10). The admissible portion of his discovery statement
is at Exh.-95. By the said, he agreed to show where he has
concealed the weapon, knife, the place where he destroyed the
mobile of the deceased Monika, the place where he gave his shirt
to his uncle and the shirt of his uncle which he put on his person.
The evidence of Suhas (PW10) shows that he led the police party
to Nandanvan hutment area. He directed the Police party and the
pancha till the end of the hutment area and there was one nullah
and also one wall. Thereafter, he jumped on the other side of the
wall and went towards nullah about 50 to 60 yards. There were
shrubs of about 1½ to 2 ft. and from there he took out a knife.
The same was seized under seizure panchanama Exh.-96. During
the course of his evidence, this witness was shown 2 knives and he
identified article 15 as a knife which was taken out by Shrikant.
Thus, it is to be noted that article 11 is another knife which was
removed by PI Burade (PW28) from the body of the deceased
Monika with the help of the doctor. Similarly, he has shown the
place which was near the shop of his uncle at a public toilet where
he destroyed the mobile phone of deceased Monika, so also
Exhs.-97 and 98, seizure panchanam which shows that the shirts
were seized.
58 apeal205.15.odt
83. According to the learned counsel for the appellants,
these recoveries are bad for two grounds. Firstly, the pancha
witness is a stock pancha of police and secondly the recovery is
from an open place.
84. Closer scrutiny of the record does not show that the
defence was able to point out that the prior to this, these two
witnesses have acted as pancha in any other police case. Insofar
as the place from where the knife was recovered, in our view
cannot be termed as an open place since as per the evidence of
Suhas, accused no.4-Shrikant took the pancha and the police party
at the end of the hutment area where there was a wall. Thereafter
he jumped to the other side of the wall having nullah and after
going to 50 to 60 yards, there were shrubs of about 1 to 2 ft. and
from there he took out the knife. This place was not easily
accessible to the public.
85. In view of the law laid down by the Hon'ble Apex Court
in the case of Yakub Abdul Razak Memon vs. State of
Maharashtra thr. CBI, Bombay; 2013 (13) SCC 1, in paragraph
no.1708 and in view of the evidence as brought on record about
59 apeal205.15.odt
the place, we are unable to agree with the submission made by the
learned counsel for the appellants that the recovery was made
from the open place and the place is accessible to everybody.
(v) Scientific Evidence:
86. On 13.04.2011, Madhav Giri, the investigating officer
vide letter dated 13.04.2011, Exh.-191, sent all the seized articles
in a sealed condition to the Chemical Analyzer (CA). Exh.-192 is
the invoice challan showing the receipt of the articles by CA. As
per the said CA report, the shirts of accused nos. 3 and 4 were
having stains of human blood. So also the knife which was
recovered at the instance of accused no.4-Shrikant was also having
human blood. This incriminating circumstance was put to accused
nos. 3 and 4. However, they have failed to offer any explanation.
87. Exh.-124 is DNA report. This report is proved by
Vaishali Mahajan (PW26) Assistant Chemical Analyzer. Her
evidence shows that he extracted DNA from blood found on T-
shirt, knives and shirt of accused no.3-Umesh, from the blood
sample of the deceased Monika and accused nos. 3 and 4.
60 apeal205.15.odt
88. DNA report Exh.-194 shows that the DNA of the blood
found on the shirt of accused no.3-Umesh matches with the DNA
of blood of the deceased Monika. It also reveals that the blood
found on Articles 11 and 15 is of the deceased Monika. Thus, the
scientific evidence also points out the finger of guilt towards the
appellant nos. 3 and 4 as the actual assailants of the deceased
Monika.
(G) Conclusion:
89. On reappreciation of the entire prosecution case, we
are of the view that the prosecution has proved its case by
adducing the trustworthy and cogent evidence of eye witnesses
Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju
Sarode (PW7) which is duly corroborated by the other evidence as
discussed in the foregoing paragraphs. Thus, we find no merit in
the present appeal. The same is therefore dismissed. The
Muddemal property be dealt with as directed by the learned trial
Judge, after the appeal period is over.
(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)
kahale
