Bombay High Court
Vijay Palande vs The State Of Maharashtra on 29 June, 2017
Bench: V.K. Tahilramani
apeal.469.03.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 469 OF 2003
Vijay Bhivajirao Palande,
Adult, Indian Inhabitant,
Residing at B/11, Mittal Park,
Ruia Park, J.M. Road, Juhu,
Mumbai - 400 053
(At present lodged in ...Appellant
Kolhapur Jail)
Versus
The State of Maharashtra
(At the instance of
D.N. Nagar Police Station) ...Respondent
Ms. Rohini M. Dandekar, appointed Advocate for the Appellant
Mrs. G. P. Mulekar, A.P.P for the Respondents-State
CORAM : SMT. V. K. TAHILRAMANI &
REVATI MOHITE DERE, JJ.
RESERVED ON : 24th FEBRUARY, 2017
PRONOUNCED ON : 29th JUNE, 2017
JUDGMENT (Per Revati Mohite Dere, J. ) :
1. By this appeal, the appellant has impugned the
judgment and order dated 11 th, 12th, 13th, 16th and 17th
December, 2002 passed by the learned Additional Sessions
Judge, Mumbai, in Sessions Case No. 1321 of 1998, convicting
and sentencing him as under:
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for the offence punishable under Section 449 of the Indian
Penal Code (`IPC'), to suffer RI for 7 years and to pay fine
of Rs. 15,000/-, in default, to suffer SI for 6 months;
for the offence punishable under Section 364 of the IPC, to
suffer RI for 7 years and to pay fine of Rs. 15,000/-, in
default, to suffer SI for 6 months;
for the offence punishable under Section 302 of the IPC, to
suffer imprisonment for life and to pay fine of Rs. 25,000/-,
in default, to suffer SI for 1 year;
for the offence punishable under Section 201 of the IPC, to
suffer RI for 5 years and to pay fine of Rs. 10,000/-, in
default, to suffer SI for 6 months;
for the offence punishable under Section 404 of the IPC, to
suffer RI for 3 years and to pay fine of Rs. 10,000/-, in
default, to suffer SI for 3 months;
All the aforesaid sentences were directed to run
concurrently.
The appellant was, however, acquitted of the offences
punishable under Sections 364A, 420, 465, 469 and 471 of the
IPC.
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The learned Sessions Judge by the same judgment
and order, was pleased to acquit co-accused Emad Ahmed
Hudib/Hudaib @ David John D'Souza @ Jackie (hereinafter for the
sake of brevity referred to as `David'), of all the offences with
which he was charged. The State has not preferred an appeal
against his acquittal.
2. Before adverting to the actual facts of the case, it is
pertinent to note, that the appellant and the co-accused David
were arrested in 2 cases. They were arrested in connection with
C.R. No. 100 of 1998 registered with the D. N. Nagar Police
Station, Mumbai for the offences punishable under Sections
449, 364, 302, 201, 364A, 404, 420, 465, 469, 471 r/w 34 of the
IPC, where the principal allegations against the appellant and
David, were of abducting and murdering Swaraj Ranjan Das
(present case). The very same accused i.e. appellant and David
were also arrested in connection with C.R. No. 400 of 1998
registered with the Juhu Police Station, Mumbai, for the offences
punishable under Sections 449, 464, 302, 201, 364A r/w 34 of
the IPC, where the principal allegations again, were of abducting
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and murdering Anup Ranjan Das, son of Swaraj Ranjan Das.
Two separate CRs were registered, although the accused in both
the CRs were the same, as deceased-Swaraj Ranjan Das,
residing within the jurisdiction of D. N. Nagar Police Station, went
missing from there, whereas, deceased Anup residing within the
jurisdiction of Juhu Police Station, went missing from within the
said jurisdiction. It is also pertinent to note, that although
separate charge-sheets were filed in both the C.Rs., common
evidence was led in both the said cases. The learned Additional
Sessions Judge, Mumbai by a separate judgment and order
passed in S.C.No.1320 of 1998 was pleased to acquit the
appellant and David, of all the charges including the principal
charge of causing the death of Anup Ranjan Das. (The said
case arose out of C.R. No. 400 of 1998, registered with the Juhu
Police Station). It may be noted, that the State has not preferred
any appeal against the acquittal of the appellant and David in
the said case i.e. Sessions Case No. 1320 of 1998 (Juhu Case).
Hence, we are concerned only with Sessions Case No. 1321 of
1998 in which the appellant has been convicted as aforesaid in
para 1. As noted earlier, no appeal has been filed by the State
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against the acquittal of David from the said Session Case i.e.
S.C.No.1321 of 1998.
3. Although, in the present appeal before us, we are
concerned only with the conviction of the appellant for the
murder of Swaraj Ranjan Das, it would be necessary while
dealing with the prosecution case, to set out the entire
prosecution case, including the allegations against the appellant
vis-à-vis Anup Ranjan Das, as the facts are overlapping and as
common evidence was led in both the Sessions cases.
4. The prosecution case in brief is as under:
Swaraj Ranjan Das (deceased) was residing with his
daughter Sushmita (PW 1), his wife Usha (PW 4) and son Abhijit
in Flat No. 204, "Magic Carpet", Juhu Versova Link Road, Andheri
(West), Mumbai (hereinafter, for the sake of brevity, referred to
as `Magic Carpet' flat). Swaraj Ranjan Das had another son,
by the name Anup Ranjan Das (deceased), who was residing in
Flat No. B/11, Ground Floor, Mittal Park, Ruia Park, Juhu, Mumbai
(hereinafter, for the sake of brevity, referred to as `Mittal Park '
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flat). The said flat at Mittal Park was acquired by Swaraj Ranjan
Das in 1992. The appellant-Vijay Palande, a friend of Anup Das,
is stated to have known Anup Das, for about 3-4 years prior to
the incident. It is stated that the appellant was not only a
frequent visitor to the said Mittal Park flat, where Anup Das was
residing, but would also occasionally stay there.
Anup Das was implicated in a murder case i.e. murder
of his brother-in-law Rajeev Bhattacharya (wife's brother) and
was arrested and lodged in Arthur Road Jail in connection with
the said case. In Arthur Road Jail, Anup became friendly with
David (original accused No. 2). After Anup's and David's release
from jail, David also started frequenting Anup's residence at
Mittal Park.
According to the prosecution, Anup's mother Usha
(PW 4) would sleep at the 'Mittal Park' flat at night and would
return to the 'Magic Carpet' flat in the morning. It is alleged that
on 17th January, 1998, Anup, the appellant and David decided to
go to a Hill Station, for a holiday and on 18 th January, 1998, at
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about 7:00 a.m., the three of them set out from the 'Mittal Park'
flat, to go to Khandala. After Anup left with the appellant and
David, Usha (PW 4) returned to her 'Magic Carpet' flat. Anup
was not seen thereafter.
The appellant thereafter started frequenting the Magic
Carpet flat, where Anup's parents and sister were residing.
Sushmita (PW 1) is alleged to have questioned the appellant,
about the whereabouts of her brother Anup, his address and
telephone number, however, the appellant did not give any
information and instead told Sushmita (PW 1), that Anup was
staying in a hotel at Khandala and was doing some important
work.
On 25th January, 1998, the appellant is stated to have
visited the Magic Carpet flat at about 4:00 p.m and disclosed to
Sushmita (PW 1) and Usha (PW 4), that Anup was at Khandala
and that he was busy completing some important work and was
preparing for his case. David is also stated to have joined the
appellant. Both, are alleged to have told Sushmita (PW 1) and
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Usha (PW 4), that Anup was in need of Rs. 25,000/-. The
appellant is also stated to have told Swaraj Ranjan Das, who was
present at home, that Anup had given a message that his father
should bring Rs. 25,000/-. Pursuant to the said disclosure,
Swaraj Ranjan Das carried Rs. 25,000/- and left with the
appellant and David, for Khandala. Thereafter, according to the
prosecution, the appellant and David started visiting the Magic
Carpet flat, almost every alternate day, to meet Sushmita and
Usha. It is alleged that whenever Sushmita and Usha inquired
about the whereabouts of Anup and Swaraj Ranjan Das, the
appellant disclosed that they were engaged in some important
work and that they were safe, but refused to disclose the
address where they were staying or give their contact numbers.
On 29th January, 1998, the appellant visited the 'Magic
Carpet' flat. Again, when Sushmita (PW 1) is stated to have
asked the appellant about the whereabouts of her brother (Anup)
and father (Swaraj), the appellant disclosed that they were still
busy in some important work and would come only after
completing the same. On 2nd/3rd February, 1998, David is stated
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to have visited 'Magic Carpet' at about 4:00 p.m. and disclosed
to Sushmita (PW 1) and Usha (PW 4), that Anup had asked him
to take the Maruti 800 Car, to the garage for repairs.
Accordingly, Usha (PW 4) accompanied David to the 'Mittal Park'
flat and handed over the keys to him, for getting the car
repaired. On 5th February, 1998, the appellant is stated to have
called Sushmita (PW 1) and disclosed to her, that the Pune Police
had arrested Anup and that they could possibly arrest her and
her mother and suggested that both of them should leave home.
The appellant is also stated to have informed Sushmita (PW 1)
that Swaraj Ranjan Das was admitted to the hospital. Sushmita
felt that they had not done any wrong, and hence, decided not
to leave their residence. According to the prosecution, within
some time, David called Sushmita and informed her, about
Anup's arrest. When Sushmita asked David, about the
whereabouts of her father-Swaraj Ranjan Das, he is stated to
have disclosed, that he was in a hotel. As there was some
doubt and discrepancy with regard to the whereabouts given by
both i.e. the appellant and David, Sushmita felt that something
was amiss and accordingly refused to leave her residence.
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On 7th February, 1998, Sushmita (PW1) lodged a
missing complaint with the D. N. Nagar Police Station, as her
father-Swaraj Ranjan Das had gone missing. PSI Budha Sawant
(PW 38) recorded the said complaint in the Missing Major
Persons Register at Serial No. 17/98 (Exhibit 55). The photograph
of Swaraj Ranjan Das was also supplied by Sushmita and the
same is at Exhibit 54. In the said missing complaint, Sushmita
has stated that Swaraj Ranjan Das had left the house with the
appellant and David and had not returned since then.
On 19th February, 1998, the watchman of 'Mittal Park'
telephonically informed Sushmita (PW 1), that the appellant
alongwith one male and few ladies, had entered the 'Mittal Park'
flat by opening the lock. Pursuant thereto, Sushmita (PW 1),
Usha (PW 4) and Abhijit (Sushmita's and Anup's brother) visited
the 'Mittal Park' flat, to verify the said fact. On finding that some
persons had entered the flat, Sushmita visited the Juhu Police
Station and returned with the police. The appellant was seen in
the flat and was taken to the Juhu Police Station. Thereafter, the
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Juhu Police recorded the statements of Sushmita, Usha and the
appellant. It appears, that the appellant produced xerox copies
of documents to show his ownership in respect of the Mittal
Carpet flat i.e. Power of Attorney, purportedly given by Swaraj
Ranjan Das to the appellant, Deed of Confirmation executed by
Swaraj Ranjan Das, Ration Card of the appellant, having address
of Mittal Park and acknowledgment of payments made towards
consideration for the said flat. The Juhu Police registered a
missing complaint in respect of Anup Das in the early hours of
20th February, 1998, being Exhibit 174. It was stated in the said
complaint, that Anup, left the house (Mittal Park flat) on 18 th
January, 1998 at 7:00 a.m., with his friends i.e. the appellant and
David, but had not returned home and about the appellant's
presence in the Mittal Park flat on 19 th February, 1998. The
same was recorded by PW 34-Hindurao Pharande, PSI, Juhu
Police Station. On the very same day i.e. 20 th February, 1998,
the D.N. Nagar Police, also recorded Sushmita's statement.
After about 2 to 3 days, Sushmita started receiving
anonymous calls demanding Rs. 5 lakhs, for giving information
SQ Pathan 11/81
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about the whereabouts of her father-Swaraj Ranjan Das and
brother-Anup Das. Sushmita (PW 1) suspected that the said calls
were being made by the appellant and David, with the intention
of extorting money from them. Accordingly, Sushmita's
statement was again recorded by the D.N. Nagar Police on 25 th
February, 1998. The said statement was treated as an FIR,
pursuant to which, C.R. No. 100 of 1998 was registered as
against the appellant and David, alleging an offence punishable
under Section 365 r/w 34 of IPC.
5. It appears, that the appellant was first arrested on
28th July, 1998 in connection with C.R. No. 292 of 1998
registered with the Borivali Police Station, as against the
appellant, one Simi Sood and others, for the alleged offences
punishable under Sections 465, 467, 471, 419, 420 r/w 411 of
the IPC. Though, initially the appellant was granted anticipatory
bail in the D. N. Nagar case on 20 th March, 1998, subsequently
after Section 302 etc. were added, the appellant was arrested in
the D. N. Nagar case on 2nd April, 1998. On 7th August, 1998,
Sushmita took the D. N. Nagar police, to the place where David
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was working and got David arrested. Accordingly, Sushmita's
statement was recorded by the D.N. Nagar Police, on 7 th August,
1998.
6. On 10th August, 1998, Sushmita's complaint (Exhibit
57) was recorded by the Juhu Police, pursuant to which CR No.
400 of 1998, was registered, as against the appellant and David,
for the alleged offences punishable under Sections 341, 342, 364
r/w 34 of the IPC. Pursuant thereto, the appellant was arrested
in the said Juhu case on 13 th August, 1998 and David was
arrested on 27th August, 1998.
7. Whilst in police custody in the D. N. Nagar case, David
made a disclosure statement on 11 th August, 1998, stating that
he will show the two spots where the dead bodies were thrown
i.e. one spot at Shirval Phata at Anduri Village, Lonand Road,
Taluka Khandala, District Satara and other at Kumbharli Ghat,
Taluka Chiplun, District Ratnagiri. Accordingly, David took the
police to Lonand and showed the spot where the dead body was
thrown. On inquiry with the Lonand Police, it was revealed that a
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dead body with stab wounds was recovered by them on 26 th
January, 1998, and offences under Sections 302, 201 r/w 34 of
the IPC was registered with the Lonand Police Station vide C.R.
No. 9 of 1998. The clothes on the dead body, which were seized
by the Lonand Police, were handed over by the Lonand Police, to
the officers of the D. N. Nagar Police Station, alongwith the
photographs of the dead body. The body found at Lonand was
that of Swaraj Ranjan Das, who was abducted on 25 th January,
1998. Thereafter, David led the police to Kumbharli Ghat and
showed the spot where the dead body of Anup was thrown. As
the dead body was not found at the spot, the D. N. Nagar Police
made inquiries with the Alore Police, within whose jurisdiction
the dead body is stated to have been thrown. The Alore police
informed the D.N. Nagar Police, that they had recovered a dead
body of a male in the age group, 35-40 years on 28 th January,
1998. The said dead body was stated to be in a decomposed
state. The Alore Police had accordingly registered an A.D.R,
being A.D.R No. 2 of 1998. According to the prosecution, the said
dead body was of Anup Das. The Alore Police also handed over
the clothes which were found on the dead body, to the D. N.
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Nagar Police, which were taken charge of, alongwith the
photographs. The disclosure statement made by David to the D.
N. Nagar Police on 11th August, 1998 was before he was shown
arrested in the Juhu case i.e. C.R. No. 400 of 1998.
8. According to the prosecution, PW 36-PSI Ahmed
Pathan, had arrested the appellant and Simi Sood on 28 th July,
1998 from the Mittal Park flat, in connection with C.R. No. 292 of
1998, registered with the Borivali Police Station, for the offences
punishable under Sections 465, 467, 471, 420 r/w 114 IPC.
During his interrogation in the Borivali case, the appellant is
alleged to have made a disclosure statement on 10 th August,
1998, in the presence of panchas, that he will show the places,
where he and David had thrown the dead bodies of Swaraj
Ranjan Das and Anup, at Khandala and Kumbharli Ghats,
respectively. The said panchanama is at Exhibit 141. According
to the prosecution, pursuant thereto, the appellant led the
police party to Kumbharli ghat, took them walking to a small
bridge and pointed out a place, below the bridge, where mile
stone with figure `6' was fixed and pointed out the place where
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the dead body of Anup was thrown. However, nothing was
found. The police, thereafter, proceeded to Alore Police Station,
Chiplun, and enquired whether a dead body was found in the
said area, under their jurisdiction. The Alore police are stated to
have informed about finding of a corpse of a young man, six
months prior, and about an ADR, having being registered.
Thereafter, on 11th August, 1998, the appellant is stated to have
led the police and panchas to Shirval Village, Satara Road;
stopped the vehicle and taken the party to a spot, at a distance
of 15 ft. from the road and showed the spot, where the dead
body of Swaraj Ranjan Das was thrown. However, the dead body
was not found. Since, the area fell within the jurisdiction of
Lonand Police Station, inquiry was made with the said police
station. On inquiry, it was revealed that a dead body of a 60
year old man was recovered from that site, and that the Lonand
Police had registered C.R. No. 2 of 1998, alleging offences
punishable under Sections 302, 201 r/w 34 of the IPC, as against
unknown persons and that the case was being investigated by
the Local Crime Branch. PW 7-Kisan Nanaware (Panch-inquest
panchanama), PW 8-Shyamrao Dhaigude (who had seen the
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dead body first in time and informed the police) and PW 9-
Rajendra Galande (Police Officer, Lonand Police Station), have
proved the finding of a dead body (Swaraj Ranjan Das) on 26 th
January, 1998. They have also identified the clothes found on
the dead body.
9. On 15th August, 1998, pursuant to the disclosure
statement made by David, Tata Siera Car No. MH-04-N-3342 was
recovered from an open space near Ruia Park, Juhu. The said
panchanama is at Exhibit 124. It is alleged by the prosecution
that the said Tata Siera car was used to abduct Anup Das on 18 th
January, 1998 and Swaraj Ranjan Das on 25 th January, 1998.
10. On 18th August, 1998, David again made a disclosure
statement to the D. N. Nagar Police and offered to show the
place where the Maruti 800 Car bearing No. MH-04-X-3432 was
kept. Pursuant to the disclosure statement, David led the police
and panchas to Alaknanda Society, Dattani Park, Kandivli (East),
Mumbai. Accordingly, the Maruti Car belonging to Anup Das was
seized vide panchanama Exhibit 63. It may be noted that it is the
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prosecution case, that on 3rd February, 1998, David had visited
the Mittal Park flat and disclosed to Sushmita and Usha, that
Anup Das had asked him to take the Maruti 800 Car to the
garage for repairs.
11. On 22nd August, 1998, the appellant made a
disclosure statement in the presence of panchas, that he would
show the place where the Tata Siera Car was taken for servicing
and for wash. Accordingly, the appellant led the police and
panchas to Vikas Petrol Pump at Juhu-Versova Link Road. The
panchanama is at Exhibit 213. The police seized the Bill Book
(Article 11) from Ajgar Anwar Baig (PW 20) i.e. the person to
whom the car was given for servicing and washing. The
appellant also led the police to Prakash Petrol Pump near
Chandan Cinema, Juhu, to show the place where he had
purchased loose petrol in January, 1998. The said
panchanama, is at Exhibit 214. The statement of Ramdhani
Ratan Yadav (PW 5), a cashier at the said Petrol Pump was
recorded in support thereof.
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12. The appellant also took the police and panchas to the
premises of Kanoj Arts, Opposite Juhu Church and showed the
place where he had given the seat covers of Tata Siera for wash.
Balkrishna Budhaji Pawar (PW 6) has been examined to prove
the entry which was made in the Register on 20th January, 1998.
The said panchanama is at Exhibit 215.
13. On 22nd August, 1998, David also made a disclosure
statement offering to show the Chemist shop from where
Morphine injection was purchased by him. Accordingly, he led
the police and the panchas to M/s. Pinkle Medical Stores and
pointed out the person i.e. Ashok Bhikaji Shinde (PW 17), who
had sold him the Morphine Injection on 13 th January, 1998.
Accordingly, the panchanama was drawn. (This disclosure is in
respect of D. N. Nagar Case i.e. the death of Swaraj Ranjan Das).
14. On 30th August, 1998, the appellant made a disclosure
statement (Exhibit 113) in the presence of PW 16 - Jayaram L. K.
Gopal (panch) and offered to show the place where he had
concealed the chloroform bottle and knife used in the
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commission of the offence. Accordingly, the appellant led the
police party and panchas to flat No. B/11, Mittal Park and
removed the chloroform bottle (Article 13) and knife (Article 12)
from a garden pot. The said articles were seized under a
panchanama (Exhibit 114).
15. It may be noted, that on 18 th August, 1998, the
learned Metropolitan Magistrate, Andheri, Mumbai, had directed
that both the cases i.e. C.R. No. 400 of 1998 registered with the
Juhu Police Station and C.R. No. 100 of 1998 registered with the
D. N. Nagar Police Station, be jointly investigated. By an
administrative order dated 27 th August, 1998 (Exhibit 211), DCP,
Zone VII directed PI Ramesh Vitthal Keni (PW 43) to carry out
the investigation in both the cases. For the sake of brevity, the
case registered with the Juhu Police Station will hereinafter, be
referred to as `Juhu case' and the case registered with the D.N.
Nagar Police Station will be referred to as `D.N. Nagar case'.
16. During the course of investigation, both, the D. N.
Nagar Police and the Juhu Police recorded the statements of
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Sushmita (PW 1 ), Usha (PW 4) and several others. It was also
revealed in the course of investigation that the 'Mittal Park' flat
was involved in the offence and hence, documents were secured
from the Secretary of the Mittal Park Cooperative Housing
Society. The Secretary of the Mittal Park Society produced xerox
copies of the documents submitted by the appellant's family i.e.
the Ration Card showing occupation of the said flat by the
appellant and his family since April, 1994; receipt for Rs.
4,50,000/- purportedly signed by Swaraj Ranjan Das; receipt for
Rs. 5,48,000/- signed by Mr. Abhijit Das on behalf of his father-
Swaraj Ranjan Das, alleged confirmation letter/receipt of full
payment and giving physical possession of the flat, purportedly
signed by Swaraj Ranjan Das; and the General Power of
Attorney, Clause IV of which authorises the appellant to transfer
the flat to his name. According to the prosecution, the said
documents, allegedly executed between the appellant and
Swaraj Ranjan Das were forged and fabricated documents and
were submitted to the society to show, that the appellant had
purchased the Mittal Park flat from Swaraj Ranjan Das, sometime
in October, 1997. According to Sushmita and Usha, the
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signatures appearing on the said documents were not that of
Swaraj Ranjan Das and that the signatures appearing on the said
documents were forged.
17. Thereafter, the D. N. Nagar Police recorded the
statement of Arun Kumar Mittal (PW 29), the developer of 'Mittal
Park' at Juhu and took charge of the second copy of the
Agreement for Sale of the flat from him; recorded the statement
of Advocate Ramraj Raghunath Yadav (PW 31) in connection with
the execution of the documents, including the Power of Attorney,
purportedly given by Swaraj Ranjan Das to the appellant;
recorded the statement of Ranjita Ramesh Talekar (PW 24), who
was working in the Rationing Office at Vile Parle, in connection
with the Ration Card, issued in the name of the appellant, having
address of Mittal Park; and recorded the statement of the Special
Metropolitan Magistrate, Borivali-Shri Prabhakar Vithal Inamdar
(PW 30), in connection with the execution of the Power of
Attorney, purportedly given by Swaraj Ranjan Das in favour of
the appellant, before him. The police also took search of the flat
in respect of articles lying in the Mittal Court flat and drew a
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panchanama. Two notices dated 31st March, 1998 and 1st April,
1998 (Exhibits 270 and 271) were also issued to the appellant
under Section 91 of the Code of Criminal Procedure for
production of the original documents, in respect of the Mittal
Park flat. However, he did not produce the original documents.
Notices were also issued to David and others to produce original
documents in respect of the said flat. However, they too, did
not produce the original documents. On 31st October, 1998, the
Mittal Park flat was sealed under a panchanama.
18. After completion of investigation, charge-sheet was
filed in the D. N. Nagar case in the Court of the Metropolitan
Magistrate at Andheri, Mumbai vide C.C. No. 484 of 1998. As far
as the Juhu case is concerned, the charge-sheet was filed in the
same Court vide C.C. No. 490 of 1998. Both these cases i.e. the
Juhu case and D. N. Nagar case were committed to the Court of
Sessions on 18th November, 1998.
19. Charges were framed as against the appellant and co-
accused on 8th November, 2000 in the D. N. Nagar case. Both
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the accused pleaded not guilty and claimed to be tried. The
learned Sessions Judge vide order dated 20 th November, 2001,
directed that common evidence be recorded in both the cases
and the defence gave its no objection to the same.
20. The appellant pleaded not guilty and claimed to be
tried. According to the appellant, he was falsely implicated in
the said case.
21. The prosecution in support of its case, examined 43
witnesses. In order to prove the evidence of last seen, the
prosecution examined PW 1 Sushmita Swaraj Das (daughter of
Swaraj Ranjan Das) and PW 4-Usha Swaraj Das (wife of Swaraj
Ranjan Das). PW 3-Manojkumar K. Pandey, the panch to the
disclosure statement made by the appellant, pursuant to which
a bottle containing Chloroform and knife were recovered from
the house of Anup Ranjan Das, was declared hostile; PW 5-
Ramdhari Yadav, petrol pump attendant from whom the
appellant purchased loose petrol was also declared hostile;
Balkrishna B. Pawar, an employee of K. Arts Dry Cleaners, where
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the appellant had given the Tata Siera seat covers for washing
was examined as PW 6. It may be noted that nothing
incriminating was found and hence his evidence is not of much
assistance. PW 7-Kisan Dagdu Nanavare, is the panch to the
inquest panchanama of the dead body (Swaraj Ranjan Das); PW
8-Shyamrao B. Dhaigude, is the person who informed the Lonand
Police Station, of a dead body (Swaraj Ranjan Das) lying in the
field; PW 9-Rajendra Vasant Galande, PSI Lonand Police Station,
is the officer who recorded the panchanama of the dead body
(Swaraj Ranjan Das); PW 10-Ayubmiya A. R. Patait, is the panch
to the seizure of clothes of deceased (Anup); PW 11-Vishwas R.
Pawar, is the person who saw a decomposed dead body
(allegedly of Anup) at Kumbharli Ghat, Chiplun; PW 12-Ravindra
R. Indulkar, is the panch to the exhumation of the dead body i.e.
human skeleton allegedly of Anup Das; PW 13-Ashok K. Ponkshe,
is the Medical Officer, Primary Health Centre, Shirgaon, who
conducted the autopsy on the dead body (Anup); PW 14-Sachin
N. Raut, is the employee of Tarang Photo Studio, who had taken
the photographs of the dead body (Anup); PW 15-Kishore R. Jain,
is the owner of Prabhu Jewellers, where David had allegedly sold
SQ Pathan 25/81
apeal.469.03.doc
Anup's gold wrist watch and golden chain; PW 16-Jayaram L. K.
Gopal, is the panch to the disclosure statement made by the
appellant, pursuant to which a Chloroform bottle and knife were
discovered. The said articles were recovered from Anup's flat.
The panchanama is at Exhibit 114. PW 17-Ashok B. Shinde, is
the employee of M/s. Pinkle Medical Store, Juhu, from where
David had purchased Morphine Injection. The said witness
produced the cash memo/bill dated 10 th January, 1998; PW 18-
Jeevan R. Shirsat, is the panch to the disclosure statement made
by David, with respect to wrist watch and belt; PW 19-Mahesh
G. Jain, is an employee of Vinod Jewellers, where David sold
Anup's gold chain; PW 20-Ajgar Anwar Beig, is the petrol pump
attendant, where the Tata Siera Car was washed. He has
produced the bill (Article 11). The said witness was declared
hostile. PW 21-Sheetal S. Mohite, is the panch to the
exhumation of dead body (Anup's) i.e. skeleton was taken into
custody after exhumation; PW 22-Mainuddin H. Shaikh, is the
panch to the disclosure statement made by David, pursuant to
which, Tata Siera allegedly used in the commission of the offence
was recovered; PW 23-Dr. Prahlad N. Sable, is the Medical
SQ Pathan 26/81
apeal.469.03.doc
Officer, Rural Hospital, Khandala, who performed the post-
mortem of Swaraj Ranjan Das on 26 th January, 1998. The post-
mortem is at Exhibit 127; PW 24-Ranjita R. Talekar, is the
Rationing Officer, who submitted her report dated 4 th September,
1999 which is at Exhibit 133; PW 25-Darshil Tolani, is the panch
to the disclosure statement made by the appellant, that he will
show the spot where the dead bodies of Swaraj Ranjan Das and
Anup Das were thrown by him i.e. at Lonand and Kumbharli
Ghat; PW 26-Krishnavisha R. Dubey, the watchman of Mittal
Park. The said witness informed Sushmita (PW 1) about
appellant's entry into Anup's flat; PW 27-Ramranjan Tiwari, is the
Security Supervisor of Mittal Park. He has disclosed that Anup
was residing in the said flat and that the appellant was a
frequent visitor in the said flat and that Swaraj Ranjan Das was
the owner of the said flat. PW 28 - Anoop Karnik is the owner of
Karnik Chemists, from where the appellant had purchased
Morphine. The said witness was declared hostile. PW 29-Arun
Kumar Mittal, is the partner of M/s. Juhu Constructions, from
whom Swaraj Ranjan Das has purchased the flat at Mittal Park.
PW 30-Prabhakar Inamdar, is the Special Metropolitan
SQ Pathan 27/81
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Magistrate, before whom the Power of Attorney was purportedly
executed by Swaraj Ranjan Das in favour of the appellant, on 4 th
October, 1996; PW 31-Ramraj Yadav, is the Advocate who has
identified the said Power of Attorney. He has stated that the
person who disclosed to him that he was Swaraj Ranjan Das, was
not the same person in the photograph (Exhibit - 54); PW 32-
Ram Narayan Surve, is the panch to the search panchanama
dated 8th September, 1998 drawn at Mittal Park. The said
panchanama is at Exhibit 165. PW 33-Abrar Ahmed Shaikh, is
the person who prepared the duplicate key for the vehicle i.e.
Tata Siera, pursuant to the disclosure made by David. PW 34-
Hindurao Pharande, PSI, Juhu Police Station, is the officer who
recorded the missing complaint i.e. missing of Anup Das; PW 35-
Anil Sahgal, is the Secretary of Mittal Park, who produced the
true copies of documents, submitted to him, by the two ladies
staying in Anup's flat. PW 36- PSI Ahmed Pathan, is the Officer
of Borivali Police Station; PW 37-Jagdish Engineer, is the Notary
Public, who certified the Power of Attorney and other documents
as true copies; PW 38-Buddha Sawant, PSI D. N. Nagar Police
Station, is the officer, who received the missing complaint of
SQ Pathan 28/81
apeal.469.03.doc
Swaraj Ranjan Das, Neelam Nerurkar, an acquaintance of David,
to whom David had disclosed that he had purchased a Maruti
Car, was examined as PW 39; PW 40-Vasant Bagal, is the officer,
Alore Police Station (with regard to the dead body of Anup Das);
PW 41-Ibrahim Khan, is the panch to the arrest panchanama
(David); PW 42-Hotokashi Banaji, is the agent to whom a call was
made for booking a resort at Mahableshwar, in the name of Mr.
Das; and Ramesh Keni, P.I., D. N. Nagar Police Station, who
investigated both the C.Rs, registered with the D. N. Nagar Police
Station and Juhu Police Station from 27 th August, 1998, was
examined as PW 43.
22. The defence did not examine any witness. The
learned Judge, after hearing the parties, was pleased to convict
only the appellant in Sessions Case No. 1321 of 1998
(D.N.Nagar Case), for the offences as stated in para 1, whereas,
by a separate judgment and order, was pleased to acquit the
appellant and David of all the offences in Sessions Case No.
1320 of 1998 (Juhu Case).
SQ Pathan 29/81
apeal.469.03.doc
23. It is not necessary for us to advert to in detail, the
investigation done by the Juhu Police Station vis-à-vis abduction
and murder of Anup Das, since on the basis of the investigation
done in the said case and the evidence collected pursuant
thereto, the appellant and David were acquitted of the said
charge and other related offences. The acquittal was principally
on the premise, that the prosecution had failed to establish that
the dead body was that of Anup. As noted earlier, no appeal has
been preferred by the State, challenging the acquittal of the
appellant and David and as such the same has attained finality.
24. Ms. Rohini Dandekar, appointed Advocate for the
appellant assailed the judgment and order on several grounds.
She submitted that the prosecution case rests entirely on
circumstantial evidence and that the prosecution had failed to
prove each of the circumstance as against the appellant, beyond
reasonable doubt. She submitted that there are several
omissions, improvements and contradictions which have been
elicited in the cross-examination of Sushmita (PW 1) and Usha
(PW 4), which go to the root of the matter, thus making the
SQ Pathan 30/81
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prosecution case suspicious. She further submitted that PW 1-
Sushmita and PW 4-Usha, have made material improvements in
their evidence, with respect to when Swaraj Ranjan Das left the
Magic Carpet flat with the appellant, the vehicle in which they
travelled, the dates when the appellant visited their flat, etc.
She submitted that according to PW 1-Sushmita and PW 4-Usha,
Swaraj Ranjan Das left with the appellant on 26 th January, 1998
when infact, Swaraj Ranjan Das's dead body was seen on 26 th
January, 1998, in the afternoon. She further submitted that the
alleged recovery of chloroform bottle at the instance of the
applicant is of no consequence, inasmuch as, the prosecution
has not proved, that chloroform was used in the commission of
the offence. According to Ms. Dandekar, recovery of the Tata
Siera Car is also of no consequence, as nothing incriminating
was found in the said vehicle. She further submitted that the
documents i.e. Power of Attorney, etc. have not been proved by
the prosecution, inasmuch as, the original documents have not
been placed on record. She further submitted that even
according to the evidence of PW 35-Anil Sahgal, Secretary of
Mittal Park, the concerned documents relied upon by the
SQ Pathan 31/81
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prosecution, were not submitted by the appellant but, by some
ladies. Learned Counsel submitted, that the prosecution had
failed to forge the chain required in a case, resting on
circumstantial evidence and as such the benefit of the same be
given to the appellant.
25. Learned A.P.P supported the judgment and order. She
submitted that there is ample evidence i.e. circumstances
against the appellant. She submitted that the evidence of
Sushmita (PW 1) and Usha (PW 4), with respect to Swaraj Ranjan
Das being last seen together with the appellant inspires
confidence. She submitted that merely because there is a
discrepancy in the date, the same will not in any way affect the
credibility of the said witnesses. She further submitted that the
omissions, that have come on record are not material omissions,
and as such do not affect the substratum of the prosecution
case. She submitted that evidence of both Sushmita (PW 1) and
Usha (PW 4), is consistent with each other, with respect to all
material particulars and instills confidence. She further
submitted that the recovery of a knife at the instance of the
SQ Pathan 32/81
apeal.469.03.doc
appellant from the terrace garden of Mittal Park, is also an
incriminating circumstance as against the appellant. Learned
A.P.P further submitted that the medical evidence that has come
on record shows that the injuries were possible by the said
weapon. Learned A.P.P further submitted that Swaraj Ranjan Das
was last seen in the company of Sushmita (PW 1) and Usha (PW
4) on 25th January, 1998 and his dead body was found on 26 th
January, 1998, by the Lonand Police, Satara. She submitted that
the dead body of Swaraj Ranjan Das and his clothes were
identified by Sushmita (PW 1) and Usha (PW 4) and that the said
evidence is consistent with the missing report which was lodged
by Sushmita (PW 1) on 7 th February, 1998. She further submitted
that the evidence of PW 26-K. R. Dubey, the watchman of Mittal
Park reveals that on 19th February, 1998, the appellant forcibly
entered the Mittal Park flat, owned by Swaraj Ranjan Das and
where Anup was staying. She further submitted that the
appellant had forged the signatures of Swaraj Ranjan Das in the
Power of Attorney, purportedly executed on 4th October, 1997,
before PW 30-Prabhakar Inamdar [Special Metropolitan
Magistrate, Borivali (East)] and identified by PW 31-Advocate
SQ Pathan 33/81
apeal.469.03.doc
Ramraj Yadav. She submitted that the evidence of PW 30 -
Inamdar (Special Executive Magistrate), shows that the person,
who was brought by the appellant, in whose favour the Power of
Attorney was given, was not Swaraj Ranjan Das. She further
submitted that the family of the appellant had submitted forged
documents, allegedly executed by Swaraj Ranjan Das, in favour
of the appellant vis-à-vis the 'Mittal Park' flat, to the Secretary of
Mittal Park i.e. PW 35- Anil Sahgal. According to her, the motive
for abducting and murdering Swaraj Ranjan Das was apparent
i.e. the appellant wanted to take over the Mittal Park flat,
belonging to Swaraj Ranjan Das. She submitted that considering
the overwhelming material as against the appellant, the appeal
be dismissed.
26. We have heard learned Counsel for the appellant and
the learned A.P.P at length and have scrutinized the evidence
and the documents on record, with their assistance. Having
given our anxious consideration to the material on record, we
are of the opinion that the appeal ought to be dismissed for the
reasons stated hereinunder.
SQ Pathan 34/81
apeal.469.03.doc
27. At the outset, we express our anguish, in the manner
in which the investigation has been conducted, by both the
Police Stations i.e. D. N. Nagar Police Station and Juhu Police
Station, and the police apathy in the said case. We also express
our anguish, that the State has not preferred an appeal against
the acquittal of David in the D. N. Nagar case nor has challenged
the judgment and order of acquittal of the appellant and David
in the Juhu case. No doubt, both these cases rest on
circumstantial evidence, but after going through the common
evidence led, it appears that there is sufficient material to show
the complicity of both the accused, in both the cases i.e. Juhu
case and D.N. Nagar case. However, in the absence of any
appeal against acquittal, in the Juhu case and as against David
in the present case (D.N Nagar case), we proceed to deal with
appeal filed by the appellant, against his conviction in the D.N.
Nagar case i.e. for the murder of Swaraj Ranjan Das.
28. As noted earlier, the prosecution case rests entirely
on circumstantial evidence. The law in this regard is well settled
SQ Pathan 35/81
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in a catena of judgments. The Apex Court in the case of
Hanumant Govind Nargundkar & Anr. v. State of Madhya
Pradesh1 has observed in para 10 as under:
"10. ........ It is well to remember that in cases
where the evidence is of a circumstantial nature,
the circumstances from which the conclusion of
guilt is to be drawn should in the first instance be
fully established, and all the facts so established
should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so
far complete as not to leave any reasonable
ground for a conclusion consistent with the
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. ......."
29. Keeping in the mind the aforesaid settled principles,
we now proceed to deal with the evidence and circumstances
qua the appellant.
30. The first circumstance against the appellant is of last
seen. In order to prove the said circumstance of last seen, the
1 1953 Cri.L.J. 129
SQ Pathan 36/81
apeal.469.03.doc
prosecution has examined Sushmita (PW 1) and Usha (PW 4), the
daughter and wife of Swaraj Ranjan Das, respectively.
31. PW 1-Sushmita in her evidence has deposed; that
Anup Das was her brother and Swaraj Ranjan Das was her
father; that the appellant was working as a Steward in `Copper
Chimney' restaurant at Juhu and due to Anup's frequent visits to
the said restaurant since 1995, the appellant and Anup Das
became friends; that in 1997, Anup's brother-in-law Rajeev
Bhattacharya was murdered and Anup was arrested in
connection with the said murder; that whilst in jail, Anup got
acquainted with David; and that after Anup and David were
released on bail, David also started visiting the residence of
Anup Das at Mittal Park. According to PW 1-Sushmita, on 17 th
January, 1998 at about 10:30 p.m., her mother, father and she
had gone to the Mittal Park flat, where Anup Das was residing;
that when they reached the flat, the appellant and David were
in the house and that Anup was packing his bag, as they were
going to Khandala; that on 17 th January, 1998, her mother Usha
(PW 4) stayed in the Mittal Park flat whereas, she and her father
SQ Pathan 37/81
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returned back to the Magic Carpet flat. According to PW 1-
Sushmita, on the next day, i.e. on 18 th January, 1998, Usha (PW
4) returned back to the Magic Carpet flat and informed, that
Anup had left for Khandala with the appellant and David at about
7:30 a.m, in a Tata Siera Car; that on 19 th January, 1998,
appellant came to the Magic Carpet flat, and on being asked by
her and her mother Usha (PW 4) about the whereabouts of Anup,
disclosed that he was at Khandala. She has deposed that
though she sought the address and telephone numbers of the
hotel where Anup was staying, the appellant refused to give the
same. She has stated that the appellant again visited them on
21st, 23rd, 24th and 25th January, 1998 and on being asked by her
and Usha (PW 4), he avoided giving the address and telephone
number of the place where Anup was staying. She has further
stated that on 25th January, 1998, the appellant came to the
Magic Carpet flat, when her parents i.e. Usha (PW 4) and Swaraj
Ranjan Das were also there, and disclosed to them, that Anup
had asked his father (Swaraj Ranjan Das) to deliver a diary
containing names and telephone numbers of Advocates and an
amount of Rs. 25,000/- for preparing his case; that pursuant
SQ Pathan 38/81
apeal.469.03.doc
thereto, Swaraj Ranjan Das accompanied the appellant and
David with Rs. 25,000/- and the diary at about 3:00 p.m; and
that she and Usha (PW 4) saw Swaraj Ranjan Das leaving with
the appellant and David, in a Tata Siera Car. The appellant is
alleged to have told her and Usha (PW 4) that they were going to
Khandala, where Anup was staying. According to PW 1-
Sushmita, thereafter, both, the appellant and David started
visiting the Magic Carpet flat, almost every alternate day, till
about 1st February, 1998. She has stated that when she asked
the appellant about Swaraj Ranjan Das and Anup, he disclosed
that they were working on an important matter and were busy
preparing for the case, however, refused to disclose the address
and telephone numbers. Sushmita has further deposed that on
3rd February, 1998, David came to the Magic Carpet flat at about
3:00 p.m. and asked for Anup's Maruti Car key. David is stated to
have disclosed, that Anup had asked him to get the car repaired,
pursuant to which, Usha (PW 4) handed over the keys to David.
The said Maruti 800 Car was in the name of Ranu Bhattacharya,
i.e. the wife of Anup Das. David is stated to have taken the Car
which was parked in the parking area of the Magic Carpet.
SQ Pathan 39/81
apeal.469.03.doc
According to Sushmita, on 4 th February, 1998, at about 10:00
p.m, the appellant called her and informed, that Anup was
arrested by the Pune Police and that the police were likely to also
arrest her and her mother and suggested that they too should
pack their bags and go with him. When questioned about the
whereabouts of her father, the appellant disclosed that her
father was sick and was admitted to the hospital, however, he
did not disclose the name and address of the hospital. The
appellant also told that he would be waiting for them on the
ground floor. PW 1-Sushmita has stated that after about half an
hour, David also telephoned and disclosed that Anup was
arrested by Pune Police. However, when asked about the
whereabouts of Swaraj Ranjan Das, David disclosed that Swaraj
Ranjan Das was staying in a hotel. According to Sushmita,
considering the inconsistent information given by the appellant
and David, about Swaraj Ranjan Das's whereabouts, she became
suspicious and decided not to leave home. Sushmita has stated
that on 6th February, 1998, at about 11:00 a.m., she went to the
D. N. Nagar Police Station alongwith her mother Usha (PW 4) and
narrated the facts, i.e. the circumstances in which her brother
SQ Pathan 40/81
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Anup and father Swaraj Ranjan Das left with the appellant and
David. She disclosed that the appellant and David were not
disclosing their whereabouts. On 7th February, 1998, Sushmita
and her mother-Usha again went to the D. N. Nagar Police
Station, where Sushmita's statement was recorded by PW 38-PSI
Buddha Sawant, D. N. Nagar Police Station. In the said
statement, PW 1-Sushmita has disclosed how her father had
gone with the appellant and David to Khandala with Rs. 25,000/-
to give Anup and had not returned home since then. She had
also furnished a photograph of her father. Accordingly, the D.N.
Nagar Police registered Sushmita's missing complaint. Sushmita
has identified the photograph, which is stapled on page 18 of
Register No. 1 "Missing Major Persons" for the year 1998 (Exhibit
53). She has identified her father's photograph and the missing
complaint lodged by her (Exhibit 55A).
32. As far as missing of Anup Das was concerned, she was
asked to lodge a complaint with the Juhu Police Station, as Anup
Das had gone missing from his residence at Mittal Park, which
fell within the jurisdiction of the Juhu Police Station. She has
SQ Pathan 41/81
apeal.469.03.doc
stated that pursuant thereto, she and her mother-Usha visited
the Juhu Police Station on the very same day i.e. 7 th February,
1998, however, their complaint was not recorded on the ground,
that their brother Anup had gone with the appellant and David
on his own accord. According to Sushmita, on 19 th February,
1998 at about 7:00 p.m., she received a call from K. R. Dubey
(PW 26), the watchman working at Mittal Park, who informed her
that the appellant and few women had occupied Anup's flat at
Mittal Park, by opening its lock. She has stated that pursuant to
the said information, she visited the D.N. Nagar Police Station
and thereafter proceeded with the police to the Mittal Park flat.
She has stated that her mother-Usha and brother-Abhijit had also
come to the Mittal Park flat. According to PW 1-Sushmita, they
saw that 3-4 ladies were present in the said flat. The said ladies
disclosed that the said flat was purchased by them. PW 1-
Sushmita has stated that the D.N. Nagar Police informed her,
that the flat was within the jurisdiction of Juhu Police Station and
that she should approach them. Pursuant thereto, she visited
the Juhu Police Station and returned with 5-6 constables; that the
said flat was opened by a woman, by the name Simi; that Simi
SQ Pathan 42/81
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showed a receipt to the constable and told them that Swaraj
Ranjan Das had sold the said flat to the appellant. The police
entered the flat and later, took all of them, including the
appellant, who was found hiding in the terrace of Anup's flat, to
the Juhu Police Station. At the Juhu Police Station, the police
recorded the statements of Sushmita, her mother-Usha (PW 4),
brother Abhijit and the appellant. On 20 th February, 1998, the
Juhu Police registered Sushmita's missing complaint in respect of
Anup Das. On 21st February, 1998, at about 11:00 a.m., PW 1-
Sushmita received an anonymous call. The caller informed her,
that if she wanted to know the whereabouts of her brother and
father, she should keep a sum of Rs. 5 lakhs ready. According to
Sushmita, when she insisted on hearing the voice of her father
and brother, the phone was disconnected. The same demand
was again made on the next day i.e. on 22 nd February, 1998 at
about 11:30 p.m. According to PW 1-Sushmita, she suspected
that the calls were made by the appellant and David. On 23 rd
February, 1998, at about 7:30 p.m, PW 1-Sushmita went to the
D.N. Nagar Police Station and disclosed about the phone calls
and demand of Rs. 5 lakhs, however, her complaint was not
SQ Pathan 43/81
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registered. On 25th February, 1998, at about 7:30 p.m., PW 1-
Sushmita's complaint was recorded. The said complaint was
treated as an FIR and the same is marked as Exhibit 56. PW 1-
Sushmita has deposed that despite inquiries with the Police
regarding the progress of her complaint, no progress was
reported in the said case i.e. missing of her father Swaraj Ranjan
Das till 7th August, 1998. According to PW 1-Sushmita, on 7 th
August, 1998, she showed the place where David was working,
pursuant to which, David was arrested by PW 43-PI Keni. She
has stated that on 10 th August, 1998, a separate complaint/FIR
was registered with the Juhu Police Station, with regard to the
abduction of her brother Anup Das, on 18 th January, 1998. The
said complaint lodged on 10 th August, 1998, was treated as an
FIR (Exhibit 57).
33. On 12th August, 1998, 2-3 constables visited PW 1-
Sushmita's flat at Magic Carpet and asked her, her mother-
Usha and brother-Abhijit, to meet Shri Ambadas, in-
charge of Unit-X of Crime Branch, C.I.D. at Kandivli Office.
Accordingly, all of them visited the said Office. Shri Ambadas
SQ Pathan 44/81
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showed 4 photographs. PW 1-Sushmita has stated that she
identified 2 photographs, as that of her brother-Anup Das and 2,
of her father-Swaraj Ranjan Das. PW 1-Sushmita identified the
photographs of her father, on the basis of his appearance, as
well as, the apparels worn by her father. As far as Anup Das's
photographs were concerned, she identified him on the basis of
the hands, as the face was burnt and was black. Sushmita's
mother-Usha (PW 4) and brother-Abhijit also identified Swaraj
Ranjan Das in the photograph. Thereafter, Sushmita alongwith
PW 4-Usha and Abhijit visited the D. N. Nagar Police Station on
the same day i.e. on 12th August, 1998 at about 4:30 p.m. and
met PI Keni (PW 43). PW 43-PI Keni showed them the same
photographs, which were shown by Shri Ambadas. Sushmita
identified the said photographs of her father i.e. Swaraj Ranjan
Das. The said photographs were marked as X' and `X-1' for
identification.
34. On 21st August, 1998, Sushmita was summoned by
PW 43-PI Keni to the D. N. Nagar Police Station. She was shown
the wrist watch of `Omex' Company, having gold strap and gold
SQ Pathan 45/81
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dial, and a gold chain. Sushmita identified the items, as
belonging to her brother Anup Das. On 2 nd September, 1998,
Sushmita was again summoned by PI Keni. PI Keni showed her a
Power of Attorney purportedly executed by her father on a
Rs. 100/- stamp paper, in favour of the appellant. According to
PW 1-Sushmita, the signature on the said document was not that
of her father- Swaraj Ranjan Das, but had been forged. On 6 th
September, 1998, Sushmita and PW 4-Usha were called to the
D. N. Nagar Police Station. P.I. Keni sent Sushmita alongwith
some police officers and constables to the Mittal Park flat
alongwith the appellant. PW 1-Sushmita and her mother Usha
identified the articles in the said flat i.e. refrigerator, T.V.,
washing machine, A.C., computer, furniture, etc. as belonging to
her brother-Anup Das. Accordingly, panchanama of the said
articles was drawn. On 13 th October, 1998, Sushmita was again
called to the D. N. Nagar Police Station, where P.I. Keni showed
her some clothes, i.e. blue colour terricot pants stained with
mud, white half sleeve shirt with blue and purple stripes in torn
condition stained with blood, a sweater in a torn condition, also
stained with blood, one banian, underwear and leather belt.
SQ Pathan 46/81
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Sushmita identified the said articles as that of her father Swaraj
Ranjan Das and disclosed that he had worn the said clothes
while leaving the house on 25 th January, 1998, with the
appellant and David. She also identified the clothes of Anup
Das.
35. Sushmita was cross-examined at great length. A
major part of her cross-examination, was devoted to bring on
record, the omissions, improvements and contradictions in
Sushmita's several statements, which were exhibited. A perusal
of the examination-in-chief of PW 1-Sushmita shows that all the
minute details, right from 17th January, 1998 till lodging of her
complaint and even thereafter, as deposed to, are not reflected
in her FIR/statements. The trial Court has bracketed all the
omissions and has marked the same in the notes of evidence.
According to us, the said omissions, improvements and
contradictions do not, in any way, affect the substratum of the
prosecution case and cannot be said to be material omissions
and improvements.
SQ Pathan 47/81
apeal.469.03.doc
36. Even if the so called material omissions,
improvements and contradictions are ignored, the gist of PW 1-
Sushmita's substantive evidence, is as under;
(i) It has come in Sushmita's evidence that she was
residing with her father, mother and brother-Abhijit at the `Magic
Carpet' flat, whereas, her brother-Anup was staying at the `Mittal
Park' flat, which was in the name of her father-Swaraj Ranjan
Das. She has stated that Anup was friendly with the appellant
for a couple of years, prior to the incident. She has stated that
the appellant was working in the Copper Chimney restaurant,
and as Anup and all of them used to visit the said restaurant,
Anup and the appellant had became friendly. She has stated that
her brother-Anup was accused of murdering his brother-in-law,
as a result of which, Anup was arrested and whilst in jail, he met
David. She has stated that after the release of Anup and David
from jail, sometime in December, 1997, David also started
visiting Anup's residence. She has further stated that during the
day, her mother-Usha (PW 4) would live in the Magic Carpet flat
and in the night, she would reside with Anup, in the Mittal Park
SQ Pathan 48/81
apeal.469.03.doc
flat. She has stated that on 18 th January, 1998, at about 7:00
a.m., the appellant, David and Anup left home, disclosing to PW
4-Usha that they were going to a Hill Station. She has stated
that thereafter, every one or two days, the appellant would visit
the Magic Carpet flat. She has stated that on 25 th/26th January,
1998, at about 4:00 p.m., the appellant came home and
pursuant thereto, her father-Swaraj Ranjan Das left with the
appellant alongwith Rs. 25,000/-. According to Sushmita,
thereafter, the appellant and David were frequently visiting their
house, however, neither Anup nor Swaraj Ranjan Das returned
home. She has further stated that when she asked the appellant
and David, about her father and brother's whereabouts, and
sought details, they refused to disclose the same. She has
further stated that on 29th January, 1998, the appellant had
come home and when she and her mother asked for Anup's
number, the appellant stated that he would give the number
later. She has further stated that on 3 rd February, 1998, David
came home to take Anup's Maruti car. She has stated that her
mother Usha went with David to the Magic Carpet flat and
handed over the car keys to him. She has further stated that on
SQ Pathan 49/81
apeal.469.03.doc
4th February, 1998, the appellant called and disclosed that the
Pune police had arrested Anup, and that they were likely to
arrest them (Sushmita and Usha) and hence, they should
accompany him. She has stated that she and her mother
refused to leave their residence. According to Sushmita, she
lodged a missing complaint on 8th February, 1998 (Exhibit 55A)
with regard to missing of her father-Swaraj Ranjan Das. Sushmita
has stated that she had disclosed in the said complaint, that the
appellant and David, both Anup's friends, had come home on
25th January, 1998 at about 4:00 a.m. and informed them that
Anup was at Khandala and that he required Rs. 25,000/-; that the
appellant and David disclosed that Swaraj Ranjan Das will have
to accompany them to Khandala to give the said money and
accordingly, all of them i.e. the appellant, David and Swaraj
Ranjan Das left for Khandala. She has stated that her father-
Swaraj Ranjan Das did not return home thereafter, however, the
appellant and David would intermittently call and sometimes
visit them. She has further stated that, her father had not
returned home and despite search, they were unable to find him.
She has given the description of her father-Swaraj Ranjan Das
SQ Pathan 50/81
apeal.469.03.doc
and the clothes worn by him, when he left the residence. The
said missing complaint is exhibited as Exhibit 55A. (The main
discrepancy in Sushmita's evidence and the missing complaint
and FIR is the date i.e. when Swaraj Ranjan Das left home with
the appellant and David. In her evidence, Sushmita has
disclosed the date as 25th January, 1998, whereas, in the missing
complaint and FIR, it is mentioned as 26 th January, 1998. We
will deal with the said discrepancy a little later, while analysing
the evidence). She has further stated that on 19 th February,
1998, the watchman of Mittal Park flat disclosed, that the
appellant and some ladies had forcibly entered the said flat,
pursuant to which, she informed the Juhu Police Station.
Accordingly, the Juhu Police came and all were taken to the Juhu
Police Station, where, the police recorded her, her mother's and
the appellant's statements. Sushmita has also disclosed that the
Mittal Park flat was purchased by her father and that her brother-
Anup was residing in the said flat.
(ii) Sushmita has further stated that thereafter, for 2 - 3
days, she started receiving unknown calls and that the said
SQ Pathan 51/81
apeal.469.03.doc
persons were demanding Rs.5 lakhs, for disclosing the
whereabouts of her brother and father. She has stated that she
suspected that, it was the appellant and David, who were calling,
and trying to extract money from them. She has further stated
that both, her father and brother had left with the appellant and
David and that they had not returned thereafter, and that there
was no contact with them. She has stated that although the
appellant and David were visiting their residence thereafter, they
were refusing to disclose the whereabouts of her father and
brother. She has stated that she suspected that the calls
demanding money, were being made by the appellant and that
her father was confined by the said persons. Accordingly, she
lodged a complaint as against the appellant and David. Pursuant
to her statement dated 25th February, 1998, the police registered
C.R. No. 100 of 1998, as against the appellant and David,
alleging an offence punishable under Section 365 r/w 34 of the
IPC.
37. Sushmita's evidence also shows, that on her
disclosing the whereabouts of David, the D. N. Nagar Police
SQ Pathan 52/81
apeal.469.03.doc
arrested David on 7th August, 1998, pursuant to which,
Sushmita's statement was again recorded. Sushmita's evidence
shows that her statement was again recorded on 12 th August,
1998, after PI Keni showed her the photographs of her father-
Swaraj Ranjan Das, received from Lonand Police. She has stated
that she had identified her father in the photographs as well as
the clothes worn by him.
38. Usha, wife of Swaraj Ranjan Das has been examined
by the prosecution, as PW 4. PW 4-Usha is also the mother of
Anup Das. Her evidence is on similar lines as that of PW 1-
Sushmita. She has deposed that on 17 th January, 1998 at about
7:00 p.m, she along with her daughter-Sushmita and husband-
Swaraj Ranjan Das visited the Mittal Park flat, where Anup was
residing; that Anup was packing his bag; that the appellant and
David were present in the house; that the appellant disclosed
that all of them were going to Khandala on 18 th January, 1998;
that thereafter, her husband Swaraj Ranjan Das and daughter-
Sushmita returned to their Magic Carpet flat, whereas, she
stayed back with Anup. She has stated that on the next day i.e.
SQ Pathan 53/81
apeal.469.03.doc
on 18th January, 1998, at about 7:30 a.m., Anup, the appellant
and David left home. According to Usha, Anup told her that they
had cancelled their program of going to Mahabaleshwar, and
were instead going to Khandala. Usha saw them leaving in a
Tata Siera Car. She has stated that after completing the
household work, she returned to the Magic Carpet flat and
informed her husband and daughter about the same.
Thereafter, PW 4-Usha has set out the details of visits and calls
made by the appellant from time to time. She has also stated
that whenever the appellant and David were asked about the
whereabouts of Anup, they refused to divulge the details, stating
that he was at a safe place and was doing some important work.
39. According to PW 4, on 25 th January, 1998, appellant
came to their residence. She has stated that her daughter
Sushmita and husband Swaraj Ranjan Das were present at home
and that the appellant disclosed that Anup required the diary
containing the names of the Advocates and a sum of
Rs. 25,000/- and that Anup had asked his father to bring the
same. She has further stated that on 25 th January, 1998 at about
SQ Pathan 54/81
apeal.469.03.doc
3:30 p.m, Swaraj Ranjan Das accompanied the appellant and
David in a Tata Siera Car. The evidence of PW 4-Usha, is again
on similar lines as that of PW 1-Sushmita, with regard to the
visits and telephone calls made by the appellant and the non-
disclosure by the appellant about the whereabouts of Anup and
Swaraj Ranjan Das.
40. According to PW 4-Usha, on 3rd February, 1998, David
came and asked her for Anup's Maruti Car key and disclosed that
Anup had asked him, to take the car for repairs. She has stated
that pursuant thereto, she handed over the car keys to David.
She has also disclosed about the calls made by the appellant
and David, informing them, that Anup Das was arrested by the
Pune Police and also about the likelihood of the police arresting
her and her daughter. She has also deposed about the
discrepancies in the version of the appellant and David with
regard to the whereabouts of Swaraj Ranjan Das and the conduct
of the police. According to Usha, on 19 th February, 1998, the
watchman of Mittal Park informed them that the appellant and
his family had entered Anup's flat, pursuant to which they went
SQ Pathan 55/81
apeal.469.03.doc
to the said flat. She has stated that her daughter went to the
Juhu Police Station and returned with the Police after which all of
them including the appellant were taken to the Juhu Police
Station. She has stated that the Juhu Police started writing her
statement, even before she started narrating and when she
objected, they asked her to keep quiet and again said that her
husband and son had run away. She has stated that her
condition was bad, however, despite this, she and her daughter
kept visiting the police stations. The evidence of PW 4-Usha is
again on similar lines as that of PW 1, with regard to being called
by Shri Ambadas for identifying the photographs. She has
stated that she had identified the photographs, as being of her
husband-Swaraj Ranjan Das and son-Anup Das.
41. The said witness was also cross-examined at length.
Certain omissions, improvements and contradictions were
brought on record. Several questions were put to the witness,
regarding the Company-Usha Pharmaceuticals Pvt. Ltd., etc. and
with regard to the transactions of the said Company. Several
suggestions made by the Advocate for the appellant were
SQ Pathan 56/81
apeal.469.03.doc
categorically denied by her i.e. she had not seen Anup Das going
with the appellant and David on 18 th January, 1998; that, she
had not seen her husband accompanying the appellant and
David, etc.
42. We may again note, that none of the
omissions/improvements/contradictions can be termed as
material, and such, that would affect the substratum of the
prosecution case. If the so called omissions, improvements and
contradictions are ignored, the gist of the evidence of Usha,
which is consistent with her statements, is as under :
(i) According to Usha, she was residing with her husband
and daughter-Sushmita at the `Magic Carpet' flat, whereas
Anup was staying in the Mittal Park flat; (ii) That every night, she
would stay in the Mittal Park flat with Anup and would return to
the Magic Carpet flat, every morning; (iii) That on 18 th January,
1998, at 7:30 a.m., Anup and his friends, i.e. appellant and
David, left together, to go to a Hill Station and after doing some
work, she returned to the Magic Carpet flat; (iv) That every
one/two days, the appellant would visit their flat; (v) That
SQ Pathan 57/81
apeal.469.03.doc
whenever her daughter asked the appellant and David about
Anup's whereabouts i.e. address and phone number, they did
not provide the said information and would say that Anup was
busy in some important work; (vi) That on 25 th / 26th January,
1998, the appellant came to the Magic Carpet flat and disclosed
that Anup was at Khandala. According to Usha, when she
questioned the appellant about the whereabouts of Anup, he
disclosed that Anup was at Khandala and that he had stayed
back to complete some important work. She has stated that the
appellant told them, that Anup was in need of Rs. 25,000/- and
had asked for the said amount to be sent. She has stated that
her husband-Swaraj Ranjan Das was also present in the house
and that as Anup was in need of money, Swaraj Ranjan Das
went with the appellant and David with Rs. 25,000/-; (vii) That,
thereafter, the appellant started visiting their house. According
to PW 4-Usha, whenever her daughter asked the appellant,
about the whereabouts of her husband and son, the appellant
would say, that both were busy in preparing the case; (viii)
That on 3rd February, 1998 in the evening, David came home
and disclosed that he was taking Anup's Maruti 800 Car for
SQ Pathan 58/81
apeal.469.03.doc
repairs. She has stated that pursuant thereto, she accompanied
David to Mittal Park, in which premises, the car was parked and
handed over the car keys to David; (ix) That later, the appellant
called and disclosed that Anup was arrested by the Pune Police
and that the Police were also likely to arrest them and asked
them to leave their house; (x) That on 19 th February, 1998, the
watchman of Mittal Park called and disclosed that the appellant
and his family had forcibly entered the Mittal Park flat, pursuant
to which, they went to the said flat; (xi) That she identified the
photos of her husband and son, as shown by police.
43. We have considered and gone through the entire
evidence of PW 1-Sushmita and PW 4-Usha, including the
omissions, improvements and contradictions and are of the
opinion, that their evidence inspires confidence and that they
are trustworthy and natural witnesses. The question is, whether
the omissions/improvements/contradictions are such, that they
affect the substratum of the prosecution case. The answer is an
emphatic `NO'. The gist of the substantive evidence of PW 1-
Sushmita and PW 4-Usha, which is consistent with their
SQ Pathan 59/81
apeal.469.03.doc
statements show, that all the material allegations have been
set out by the said witnesses. Although, there is a discrepancy
with regard to the date, when Swaraj Ranjan Das left home, the
same cannot be said to be so material, in the peculiar facts of
this case, as the appellant was visiting the Magic Carpet flat,
every second day, after 18th January, 1998. It is an obvious
mistake in the date, which was subsequently rectified by the
witnesses in their statements dated 12 th August, 1998. The dead
body of Swaraj Ranjan Das was found on 26 th January, 1998, at
Lonand and hence, the date mentioned in the missing report/FIR,
as 26th January, 1998, on the face of it, appears to be a
mistake. It will have to be borne in mind, that Sushmita's
statement (missing complaint) was recorded, for the first time,
by the police on 7th February, 1998. It is also evident, that both
these witnesses have consistently, from the very beginning
stated, that Swaraj Ranjan Das had left home with the appellant
and David and was never seen thereafter. The body of Swaraj
Ranjan Das was found by the Lonand Police on 26 th January,
1998. Considering the same, the discrepancy in the date
mentioned in the missing report and in the FIR as 26 th January,
SQ Pathan 60/81
apeal.469.03.doc
1998, clearly appears to be an error and that the same has
been corrected by the witnesses, in their subsequent statements
dated 12th August, 1998 and in their substantive evidence, as
25th January, 1998. It is pertinent to note, and has come on
record, that the appellant and David were visiting the Magic
Carpet flat, every second day, after 18 th February, 1998, and
even after 25th February, 1998. Thus, in the facts, the non-
mentioning of the correct date, does not assume much
significance. There are also omissions with respect to certain
other dates, as to when the appellant and David came home, to
the Magic Carpet flat and with respect to the vehicle i.e. Tata
Siera in which the deceased Swaraj Ranjan Das allegedly left
with the appellant, the diary containing advocates' names
allegedly sought by Anup, etc. However, the said omissions
cannot be termed as omissions/improvements in stricto senso. It
is well-settled that an FIR is not an encyclopedia of facts,
concerning the crime. Merely because the minutest details of
occurrence have not been mentioned in the FIR/statements, the
same would not make the prosecution case vulnerable/doubtful.
Merely because the exact dates, some details including the
SQ Pathan 61/81
apeal.469.03.doc
vehicle in which Swaraj Ranjan Das left with the appellant have
not been mentioned, would not in any way, affect the
substratum of the prosecution case. The evidence of both the
witnesses inspires confidence and appears to be natural and
trustworthy. The omissions/improvements on record, will have to
also be considered, keeping in mind, the manner in which the
police have handled/investigated the case. Police apathy,
callousness and indifference is visible from the time, PW 1-
Sushmita and PW 4-Usha, visited the D.N. Nagar Police Station to
lodge a missing complaint, which was finally taken by the police
on 7th February, 1998. The two ladies i.e. PW 1-Sushmita and PW
4-Usha, were made to run from one police station to other, citing
jurisdictional issues. None took the allegations seriously. Infact,
even after the missing complaint was lodged with the D.N. Nagar
Police Station, no serious investigation or even inquiry was done
by the police, as according to them, Swaraj Ranjan Das had
gone, on his own accord, with the appellant and David. Infact,
the missing complaint of Sushmita, with regard to Anup going
missing also met a similar fate. First reluctance to record the
missing complaint and after it was registered on 20 th February,
SQ Pathan 62/81
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1998, no serious investigation was done, even by the Juhu
Police. It is also pertinent to note, that in the Juhu case (Anup's
case) the police registered the FIR only on 10 th August, 1998
(Exhibit - 57) No doubt, it appeared that Anup and Swaraj had
gone voluntarily with the appellant and David, but the fact
remained, that they were taken by making a misrepresentation
and that they did not return thereafter, when infact, the
appellant and David kept visiting Sushmita and Usha and
disclosed to them that Anup and Swaraj Ranjan Das were safe,
but refused to disclose their address and telephone numbers.
This very conduct, should have raised some suspicion for the
police, to atleast start some inquiry/investigation, but nothing
was done. No efforts, whatsoever, were made by the police to
even call and question the appellant and David. Infact, it is a
matter of record, that it was PW 1-Sushmita, who traced David
and took the police with her, pursuant to which, he was arrested
on 7th August, 1998. Police apathy is writ large in the said case,
at every stage, starting from the manner in which the case was
initially handled, when, PW 1-Sushmita and PW 4-Usha
approached the police, disclosing to them, that Anup and Swaraj
SQ Pathan 63/81
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Ranjan Das, who had gone with the appellant and David, were
missing since then, and later their callous approach in the
investigation. Infact, almost till August 1998, no serious
investigation was done. Keeping in mind the said fact, the
evidence on record will have to be appreciated. Police apathy
and lapses in investigation cannot as a rule, always benefit an
accused. It would depend on the facts of each case and the
evidence adduced in the case. Fortunately, in the present case,
the evidence shows, that all the material facts have come in
the FIR/statements and have also been deposed to, by the
witnesses. The minute details set out by both, PW 1-Sushmita
and PW 4-Usha inspire confidence and merely because the same
are not disclosed to, in the FIR/statements, do not, in the facts,
make the prosecution case even remotely doubtful.
44. Considering the evidence on record, we find that the
prosecution has proved the circumstance of Swaraj Ranjan Das,
being last seen in the company of the appellant. What emerges
from the evidence of PW 1-Sushmita and PW 4-Usha is as under:
SQ Pathan 64/81
apeal.469.03.doc
(i) That PW 4-Usha stayed overnight in Mittal Park flat, i.e. on
17th January, 1998 and at that time, the appellant and David
were present in the flat and that Anup was packing his bag;
(ii) That the appellant, David and Anup left for Khandala, on
18th January, 1998 at 7:30 a.m. after disclosing the same to PW
4-Usha, that they were going to Khandala for a holiday;
(iii) That Usha (PW 4) returned to the Magic Carpet flat on 18 th
morning and informed Sushmita (PW 1) that Anup had left with
the appellant and David, for Khandala;
(iv) That the appellant started visiting them or calling them
from 19th January, 1998 onwards, every other day. Whenever,
the appellant visited or called, he avoided furnishing the details
about Anup, despite being requested to furnish the same and
stated that Anup was busy preparing his case and was doing
important work;
(v) That on 25th January, 1998, the appellant came home and
disclosed, that Anup was in need of Rs. 25,000/- and had asked
his father-Swaraj Ranjan Das, to come with the same;
SQ Pathan 65/81
apeal.469.03.doc
(vi) That Swaraj Ranjan Das left with the appellant and David,
saying that he was going to Khandala, where Anup was staying;
(vii) That Swaraj Ranjan Das did not return home after that;
(viii) That the appellant and David kept contacting PW 1-
Sushmita and PW 4-Usha, either by visiting them personally or
on phone, every second day, and every time, when asked to
provide the address and telephone numbers of the place, where
Anup Das and Swaraj Das were staying, the same was not
provided. The appellant only informed that both of them were
safe and were busy in some important work;
(ix) That the appellant telephoned Sushmita and told her that
she and her mother should pack their bags and come along with
them, as the Pune Police had arrested Anup Das and were also
likely to arrest them;
(x) That a missing complaint dated 7th February, 1998 (Exhibit
55) was lodged. In the said missing complaint, Sushmita had
stated that her father-Swaraj Ranjan Das had gone with the
appellant and David, with Rs. 25,000; as according to the
SQ Pathan 66/81
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appellant, Anup was in need of the same, and that he had not
returned since then;
(xi) That a complaint/FIR was registered with the D. N. Nagar
Police Station on 25th February, 1998, as against the appellant
and David alleging an offence punishable under Section 364 r/w
34 of the IPC;
(xii) That the dead body of Swaraj Ranjan Das was found on
26th January, 1998 by the Lonand Police Station; that the Lonand
Police Station had registered a case being CR No. 9 of 1998, as
against unknown persons, for the alleged offence punishable
under Sections 302, 201 r/w 34 of the IPC;
(xiii) that multiple injuries were found on the said body, showing
that it was a homicidal death; and
(xiv) That the clothes of the deceased which were seized by the
Lonand Police were later again shown and seized under a
panchanama, by the D.N. Nagar Police Station. The said clothes
were identified by PW 1-Sushmita and PW 4-Usha. The said
SQ Pathan 67/81
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clothes matched the description of the clothes given by
Sushmita in the missing complaint. The witnesses i.e. PW 1-
Sushmita and PW 4-Usha also identified the photograph of
Swaraj Ranjan Das, taken by the Lonand Police. The said photo
matches the admitted photo of Swaraj Ranjan Das, given to the
D.N.Nagar Police, at the time of lodging of a Missing Complaint.
45. A careful perusal of the evidence of both these
witnesses shows, that Swaraj Ranjan Das left the Magic Carpet
flat on 25th January, 1998 alongwith the appellant, pursuant to
the misrepresentation made by the appellant, that Anup was in
need of money and had asked his father-Swaraj Ranjan Das to
bring Rs. 25,000/- with him. Thus, the evidence of both these
witnesses i.e. PW 1-Sushmita and PW 4-Usha shows that Swaraj
Ranjan Das was last seen by them, in the company of the
appellant. Swaraj Ranjan Das's body was found on 26 th January,
1998. The evidence of the doctor who conducted the post-
mortem on deceased Swaraj Ranjan Das shows, that Swaraj
Ranjan Das died in the intervening night between 25 th January,
1998 and 26th January, 1998. PW 23-Dr. Pralhad Sable, was
SQ Pathan 68/81
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attached to the Rural Hospital, Khandala, Satara, at the relevant
time. He has deposed, that when he performed post-mortem on
the dead body (Swaraj Ranjan Das) on 26 th January, 1998, he
noticed in all 9 incised wounds. He has stated that all the
wounds were penetrating wounds and were on vital parts of the
body i.e. lung and liver. Wounds were also found on both the
wrists. Dr. Sable performed the post-mortem on 26 th January,
1998 between 8:00 p.m and 9:00 p.m, at the request of Lonand
Police. Dr. Sable has also mentioned the clothes found on the
dead body. The medical evidence shows that Swaraj Ranjan Das
died on 26th January, 1998 between 2:00 a.m to 8:00 a.m. It
appears that the injuries were ante-mortem and the cause of
death was stated to be "haemorrhagic shock due to multiple
incised wounds and injury to right lung and liver." The said
injuries were stated to have been caused by hard and sharp
object. From the evidence on record, it is apparent that there
was close proximity between the time when Swaraj Ranjan Das
was last seen together with the appellant on 25 th January, 1998
at about 3.30 p.m, and the time when Swaraj Ranjan Das's body
was found at Shirval Phata at Anduri Village, Lonand Road,
SQ Pathan 69/81
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Taluka Khandala, Satara on 26 th January, 1998, in the afternoon.
It is evident, from the evidence on record, that Swaraj Ranjan
Das was induced by the appellant, by deceitful means, to
accompany him. The evidence of PW 1-Sushmita and PW 4-Usha
is cogent, consistent, reliable, trustworthy and credible. Infact
despite the lengthy cross-examination, their evidence has
remained unshaken. Thus, the prosecution has proved that
Swaraj Ranjan Das was last seen together in the company of the
appellant.
46. As far as the identity of the dead body of Swaraj
Ranjan Das is concerned, the same has been proved by the
prosecution, by bringing cogent and credible evidence on
record. As has come in the evidence of PW 1-Sushmita, she had
given a photograph of her father-Swaraj Ranjan Das, at the time
of lodging a missing complaint with the D. N. Nagar Police
Station on 7th February, 1998. She has also given the description
of the clothes worn by Swaraj Ranjan Das, when he left the
house with the appellant and David. PW 1-Sushmita and PW 4-
Usha have also identified the photographs of the dead body as
SQ Pathan 70/81
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being of Swaraj Ranjan Das. The said photographs were taken
by PW 9- Rajendra Vasant Galande, PSI Lonand Police Station on
26th January, 1998, when the inquest panchanama (Exhibit 93)
was recorded. The said inquest panchanama sets out in detail
the clothes found on the dead body. The dead body was sent for
post-mortem examination alongwith the clothes and the doctor
performing the post-mortem was required to cut the clothes.
Accordingly, the clothes were seized by constable Gujar under a
seizure panchanama (Exhibit 96) on 26 th January, 1998. The
evidence of PW 43-PI Ramesh Vitthal Keni, Investigating Officer
also shows that he had taken custody of the said clothes,
seized by the Lonand Police Station and had brought the same,
to the D. N. Nagar Police Station in connection with C. R. No. 100
OF 1998. PW 1-Sushmita and PW 4-Usha have identified the
clothes found on the dead body, as being that of Swaraj Ranjan
Das. They have stated that these were the clothes worn by him
when he left home on 25 th January, 1998, with the appellant. The
same is also recorded in the panchanama which is at Exhibit 65.
PW 2-Sitaram Mahadeo Pandit is a panch witness to the said
panchanama. The prosecution has also through the evidence of
SQ Pathan 71/81
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PW 7-Kisan Nanavare, PW 8-Shyamrao Dhaigude, PW 9-Rajendra
Galande proved the clothes found on the dead body. PW 8-
Shyamrao Dhaigude, a resident of village Anduri, has stated that
on 26th January, 1998, two persons informed him at 2:00 p.m.,
about a dead body lying in Dada Andore's field, pursuant to
which, he informed the Lonand Police Station, on phone. He has
stated that the police came to the spot at about 2:15-2:30 p.m.
The body was of an unknown person. Photographs of the dead
body were taken. He has identified the said photographs.
According to PW 7-Kisan Nanavare, when he was proceeding to
his field, he saw a dead body and found that the police were
present at the spot. He has stated that he acted as a panch to
the inquest panchanama. According to PW 8-Dhaigude, the
deceased was seen wearing a blue coloured full pant, checked
half shirt, sweater and a half banyan. He noticed injuries on the
chest, hands and legs of the deceased. He has proved the
inquest panchanama, which is at Exhibit-93. He has identified
the clothes found on deceased i. e. Articles 3 to 8 as well as the
photographs of the deceased person. Nothing material has been
elicited in the cross-examination of both these witnesses to
SQ Pathan 72/81
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discredit their testimony. PW 9-API Rajendra Galande was
attached to the Lonand Police Station as a PSI in 1998 and was
in-charge of the said Police Station. He has stated that on 26 th
January, 1998, HC Bhosale informed him at about 2:30 p.m., that
a dead body of 50 year old person was lying on the Lonand-
Shirval road. Thereafter, PW 8- Dhaigude and his team
proceeded towards the said place; on reaching the spot, they
called the Panchas and drew the inquest panchanama; and that
they noticed 9 injuries on the chest. He has stated that the
deceased had worn a full pant, half shirt, sweater, sando banyan
and half pant. Accordingly, inquest panchanama was drawn.
Thereafter, photographer was called and photographs of the
dead body were taken. Body was taken to PHC, for post mortem.
Thereafter, spot panchanama was drawn (Exhibit 95-A). As the
body was of an unknown person, an FIR was lodged, vide CR
No.9 of 1998, alleging offences punishable under Sections 302,
201 r/w 34 of the IPC, as against unknown persons. After
conducting the post-mortem, PC Gujar produced the clothes of
the deceased before PCO, Lonand Police Station and the same
were seized under a panchanama (Exhibit 96-A). On 18 th March,
SQ Pathan 73/81
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1998, the investigation was handed over to Local Crime Branch,
Satara. He has identified the clothes seized and the photographs
taken. As noted earlier, PW 1-Sushmita and PW 4-Usha have
identified the said clothes seized by Lonand Police, in the
presence of PW 2-Sitaram Pandit (Panch) on 13 th October, 1998.
The said witnesses i. e. Sushmita and Usha have deposed that
those were the very same clothes worn by Swaraj Ranjan Das on
25th January, 1998, when he left with the appellant, to go to
Khandala to give Rs. 25,000/- to Anup. Considering the material
on record, we find that the prosecution has established that the
clothes which were seized were that of Swaraj Ranjan Das and
that the dead body was of Swaraj Ranjan Das. In addition, the
witnesses PW 1-Sushmita and PW 4-Usha, have identified the
photos taken by the Lonand Police, as that of Swaraj Ranjan Das.
The said photos match the photograph of Swaraj Ranjan Das in
the Missing Register.
47. As far as motive is concerned, it is evident from the
material on record that the appellant wanted to usurp the flat,
where Anup Das was residing i.e. at Mittal Park and which stood
SQ Pathan 74/81
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in the name of Swaraj Ranjan Das. The prosecution in order to
establish the same, has examined as many as 6 to 7 witnesses.
It appears that the appellant had forged and prepared
documents in his favour i.e. Power of Attorney and Ration Card in
respect of flat at Mittal Park which stood in the name of Swaraj
Ranjan Das. It appears that in order to grab the property, the
appellant first took Anup Das on 17th January, 1998, after which,
Anup Das never returned; that the appellant informed PW 1-
Sushmita and other family members including Swaraj Ranjan
Das (deceased) that Anup wanted Rs. 25,000/- and had asked
his father to bring the same to him; that pursuant to the
representation made by the appellant, Swaraj Ranjan Das
accompanied him along with Rs. 25,000/- on 25 th January 1998
after which, his dead body was found by the Lonand Police
Station on 26th January, 1998. It is pertinent to note, that the
appellant had created forged and bogus documents i.e. Power of
Attorney, etc, prior to the demise of Swaraj Ranjan Das. The
evidence of PW 29-Arun Mittal, Partner of M/s.Juhu Constructions,
shows that Swaraj Ranjan Das had purchased the flat at Mittal
Park i.e. B-11 in 1992. The evidence of other witnesses i.e. PW
SQ Pathan 75/81
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26-Krishnavisha Dubey, PW 27-Ramranjan Tiwari and PW 35-Anil
Sahgal, shows that Anup was residing in the said flat. Although,
according to the appellant, he had purchased the said flat from
Swaraj Ranjan Das, no material/documents have been produced
by him, to show that any consideration was paid by the
appellant to Swaraj Ranjan Das. The evidence of PW 30-
Prabhakar Inamdar, Special Executive Magistrate at Borivali
shows that the Power of Attorney was executed before him
purportedly by Swaraj Ranjan Das in favour of the appellant on
4th October, 1997. The said witness has identified his signature
and seal on the said Power of Attorney. PW 30-Prabhakar
Inamdar has further deposed that the person shown to him in
the photograph Exhibit 54 (i.e. Swaraj Ranjan Das) was not the
executant of the Power of Attorney, which was executed before
him. He has, however, identified the appellant as being the
person who was present before him. Thus, the evidence of PW
30-Prabhakar shows that some person had impersonated Swaraj
Ranjan Das before PW 30-Prabhakar Inamdar, the Special
Executive Magistrate. Similarly, PW 31-Advocate Ramraj Yadav,
on the basis of the photographs, has also stated that it was not
SQ Pathan 76/81
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Swaraj Ranjan Das who had executed the Power of Attorney
before him. It is pertinent to note, that by virtue of the said
Power of Attorney, purportedly given by Swaraj Ranjan Das to
the appellant on 4th October, 1997, the appellant was given the
right to sell the property at Mittal Park. As far as PW 35-Anil
Sahgal, Secretary of the Mittal Park Society, is concerned, he
had stated that the said flat, being flat No. B-11, Mittal Park,
was sought to be transferred in the name of the appellant, by
tendering notarized true copies of the documents, being Exhibit
186 (colly). According to PW 35-Anil Sahgal, sometime in July,
two ladies claiming to be the family members of the appellant,
had approached him with a request letter and other documents,
for transferring the said flat at Mittal Park, belonging to Swaraj
Ranjan Das, in the appellant's name. He has stated that
subsequently, he had handed over the said documents to the
police. No doubt, the appellant himself had not submitted the
documents to the Secretary (PW 35), but the fact remains, that
on the basis of the said documents, the said flat was sought to
be transferred in the appellant's name. The prosecution has also
examined PW 37-Jagdish Engineer, a Notary Public. The said
SQ Pathan 77/81
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witness has stated that he had verified the original Power of
Attorney which was in favour of the appellant and the ration card
in the name of the appellant and had then certified the
documents at Exhibit 186 (colly) as true copies. From a perusal
of the evidence of PW 37-Jagdish Engineer, it appears that the
original documents were in existence and were in the custody of
the appellant, on the basis of which, he certified the xerox copies
as true copies. No doubt, the original documents have not been
placed on record, but notice under Section 91 Cr.P.C was issued
to the appellant to produce the original copies of the said
documents. However, the same were not produced by the
appellant. The evidence of PW 26-Krishnavisha Dubey,
watchman of Mittal Park shows that the appellant had come to
the Mittal Park flat on 19 th February, 1998 with some ladies and
that they opened the lock and entered the said flat. The
evidence on record also shows that when Sushmita (PW 1) was
informed by PW 26-Dubey, she came to the Mittal Park flat along
with her mother and brother and thereafter with the police.
Infact, if the statement of the appellant under Section 313 is
perused, the appellant has not denied the execution of the
SQ Pathan 78/81
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Power of Attorney and other documents (except ration card).
Infact, according to the appellant, he had purchased the said
Mittal Park flat in 1994 from Swaraj Ranjan Das and it was Anup
who was staying with him till 1995 (Answers to Question No.
118, 126, 130). As noted earlier, the appellant has not produced
any document in support thereof i.e. bank statements to show
that consideration was paid etc. From a perusal of the aforesaid
evidence, it appears that the appellant, in a systematic way to
usurp the property of Swaraj Ranjan Das, had created and forged
documents, and for usurping the said property, had abducted
and murdered Swaraj Ranjan Das.
48. Apart from the aforesaid evidence, the conduct of the
appellant in visiting the flat at Magic Carpet, where PW 1-
Sushmita and PW 4-Usha were residing first, after Anup left on
17th January, 1998 and then on 25th January, 1998 and
continuously thereafter, also speaks volumes. It is evident that
after Anup left on 17 th January, 1998, the appellant started
visiting the Magic Carpet flat and when questioned by PW 1-
Sushmita about the whereabouts of her brother, the appellant
SQ Pathan 79/81
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refused to give the address and telephone numbers of the place
where he was staying and only disclosed that he was safe. That
on 25th January, 1998, the appellant came to the Magic Carpet
flat and disclosed that Anup was in need of Rs. 25,000/- and had
asked Swaraj Ranjan Das to bring the same, pursuant to which,
Swaraj Ranjan Das accompanied the appellant. Thereafter,
Swaraj Ranjan Das's body was found on 26 th January, 1998 by
the Lonand Police. That thereafter, the appellant started visiting
and calling Sushmita and Usha and when questioned about the
whereabouts of Swaraj Ranjan Das, informed that he was safe,
but refused to give the contact details. Infact, on 3 rd February,
1998, the appellant called and informed PW 1-Sushmita that
Anup Das was arrested by Pune Police and that her father was
admitted in a hospital, when in fact, his dead body was found by
the Lonand Police on 26 th January, 1998. The said conduct of
the appellant, prior and subsequent, clearly shows that the
appellant was aware that Swaraj Ranjan Das was not in
Khandala, as was being disclosed by him to PW 1-Sushmita and
PW 4-Usha. The said conduct, prior and subsequent, also is a
factor and a strong circumstance against the appellant.
SQ Pathan 80/81
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49. Considering the material and circumstances on
record, we are of the firm opinion, that the prosecution has
established all the circumstances as against the appellant, by
cogent and reliable evidence. All the established circumstances
unerringly point to the guilt of the appellant. The Learned Judge
has rightly convicted the appellant for the offences as
mentioned in para 1.
50. Considering the aforesaid, there is no merit in the
appeal. The appeal is dismissed.
51. We express our appreciation and gratitude for the
able assistance rendered by Ms. Rohini Dandekar, appointed
Advocate. Her fees is quantified at Rs. 20,000/-.
52. Registry to forward a copy of this Judgment to the
appellant, who is lodged in Kolhapur Jail.
(REVATI MOHITE DERE, J.) (V. K. TAHILRAMANI, J.)
SQ Pathan 81/81
