Bombay High Court
Nitin Madhukarrao Ghadge And ... vs State Of Maharashtra Thr. P.S.O. ... on 7 October, 2021
Bench: V.M. Deshpande, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 397 OF 2016
WITH
CRIMINAL APPEAL NO. 426 OF 2016
.............
Criminal Appeal No. 397 of 2016
APPELLANT : Pramod S/o Madhavrao Rannavare,
Aged about 39 years, Occu. Agriculturist,
R/o Hanuman Nagar, Wadgaon,
Tah. and Dist. Yavatmal.
VERSUS
RESPONDENT : The State of Maharashtra,
through Police Station Officer,
Police Station, Deoli, Dist. Wardha.
With
Criminal Appeal No. 426 of 2016
APPELLANTS : 1] Nitin Madhukarrao Ghadge,
Aged 27 years, Occu. Labourer,
R/o Bhagyodaya Society, Ram Nagar,
Wadgaon, Tah. & Dist. Yavatmal.
2] Monika Manoj Bhabat,
Aged about 37 years, Occu. Household,
R/o C.R.P.F. Camp, Nagpur.
Tah. & Dist. Nagpur.
3] Aashish Ramdas Kathale,
Aged about 24 years, Occu. Agriculturist,
R/o Kalgaon, Tah. Digras, Dist. Yavatmal.
VERSUS
RESPONDENT : The State of Maharashtra,
through Police Station Officer,
Police Station, Deoli, Dist. Wardha.
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Mr. Avinash V. Gupta, Senior Advocate with Mr. Akash A. Gupta,
Advocate for the appellant in Cri.Appeal No. 397/2016
Mr. Mahesh Rai, Advocate for appellants in Cri.Appeal No.426/16
Mr. S. S. Doifode, A. P. P. for the respondent/State in both appeals.
-----------------------------------------------------------------------------------------------------
CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.
Judgment Reserved on : 13.08.2021
Judgment Pronounced on : 7.10.2021
JUDGMENT [Per V. M. Deshpande, J.]
These two appeals are filed against the judgment and
order of conviction passed by the learned Additional Sessions Judge,
Wardha in Sessions Case No. 11/2014 dated 27/09/2016. By the
impugned judgment and order of conviction, the appellants in these
two appeals were convicted for the offence punishable under
Sections 302, 364 and 201 read with Section 34 of the Indian Penal
Code. Life imprisonment on each count is the punishment imposed
upon them for the offence punishable under Sections 302 and 364 of
the Indian Penal Code together with fine of Rs.10,000/- by each of
them on each count. Insofar as conviction under Section 201 of the
Indian Penal Code is concerned, the learned Judge has imposed
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sentence of rigorous imprisonment for three years along with fine of
Rs.5,000/- by each of them.
2. Criminal Appeal No.397/2016 is filed by accused
Pramod Rannavare, whereas Criminal Appeal No. 426/2016 is filed
by accused Nitin Ghadge, Monika Bhabat and Ashish Kathale. In the
Charge framed by the learned trial Judge (Exh.12), accused Monika
was shown as accused no.1, accused Pramod was shown as accused
no.2, accused Ashish was shown as accused no.3 and accused Nitin
was shown as accused no.4. In this judgment, they will be referred
to by their said position.
3. Since these two appeals arise out of the same judgment,
they were heard together and they are being decided by this common
judgment.
4. Accused no.2 Pramod is represented by learned Senior
Advocate Shri Avinash V. Gupta with learned cousnel Shri Akash A.
Gupta. Accused no.1 Monika, accused no.3 Ashish and accused no.4
Nitin are represented by learned counsel Shri Mahesh Rai. Learned
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Additional Public Prosecutor Shri S.S. Doifode represented the State
in these two appeals.
5. As per the Charge, all the accused persons in
furtherance of their common intention on 01.10.2013, at about noon
time at mouza Wafgaon area committed murder of Manoj Bhabat
and after committing his murder thrown the dead body. The learned
Judge framed the charge for the offence punishable under Section
364, 302 and 201 read with section 34 of the Indian Penal Code.
6. All the accused persons denied the charge and claimed
for their trial. In order to prove the charge and in order to bring
home their guilt in the trial, the prosecution has examined in all 29
witnesses and also relied upon numerous documents, which were
duly proved during the course of the trial.
7. Deceased Manoj and accused no.1 Monika were
husband and wife. According to the prosecution, there were illicit
relations in between accused no.1 Monika and accused no.2 Pramod
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and therefore, they with the help of accused nos.3 and 4 committed
murder of Manoj.
PROSECUTION CASE
8. PW5 Sanjay Wawre is the first person who noticed the
dead body of an unknown person on 04.10.2013. On the said day, at
about 4.00 to 4.30 p.m., he was returning to his house at Wafgaon
from his agricultural field. On the way he stopped for urinating.
That time he noticed legs of human body below the bridge.
Therefore, he got scared. After some time, one another person came
there and along with him he went near the bridge to notice that a
dead body was lying under the bridge. He, therefore, informed the
said fact to Police Station, Deoli.
9. On 04.10.2013, Vijay Dhawale (PW13) was attached to
Police Station, Deoli as Police Head Constable. He went to the spot.
In the meanwhile, Sanjay Waware (PW5) gave intimation (Exh.292)
in respect noticing dead body in decomposed condition and
therefore, action be taken. Accordingly, Accidental Death No.
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56/2013 under Section 173 of Cr. P.C. was registered by HC Vijay
Dhawale and he conducted enquiry. During enquiry, Vijay Dhawale
recorded spot panchanama (Exh.187). The spot was shown by
Sanjay Waware. The spot of the incident was within the area of
Wafgaon to Ratnapur road under the bridge. On the spot, Aadhar
Card, Election identity card, one shoe, hand gloves, one socks, bed
sheet etc. were found. Spot panchanama was drawn in the presence
of panch witness Vijay Deonade (PW17) and Sachin Bire (PW18).
They were called to act as panchas in view of the summons issued to
them by HC Vijay Dhawale. Summons is at Exh.186.
Aadhar Card and election identity card were in the
name of Manoj Bhabat. The articles found on the spot were seized
under separate seizure panchanama (Exh.188) in presence of
panchas.
10. When HC Vijay Dhawale saw the dead body, he noticed
injuries on stomach, back and thigh. He sent the dead body for post
mortem at Sewagram Hospital by giving requisition to the Medical
Officer, Sewagram (Exh.190). He also done enquiry (Exh.189).
Provisional post mortem report (Exh.162) was received. He
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submitted his Murg report to the Police Station Officer. It is dated
05.10.2013 (Exh.191). Along with the report, all the enqiry papers
were submitted.
11. On considering the contents of the report (Exh.191) and
perusal of the documents, PW25 Dhananjay Sayare, Police Station
Officer of Police Station, Deoli decided to register an offence
punishable under Section 302 of the Indian Penal Code by putting his
endorsement on the report submitted by HC Vijay Dhawale.
Accordingly, PW25 Dhananjay Sayare, himself registered the crime
against unknown persons vide Crime No. 149/2013. Printed first
information report is at Exh.192.
12. Identity of the deceased as Manoj Bhabat was
determined in view of the Aadhar Card and election identity card,
which were found lying near the dead body. PC Deepak Krupale
produced the bundle of clothes of the deceased, which were given to
him in sealed condition by the Doctor. The said sealed bundle was
seized under seizure memo (Exh.213). The prosecution evidence
would show that PW1 Kusum, mother of the deceased and his sister
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Padma (PW4), who came to village Bramhanwada at her parental
house, were called by Madhavrao Dhawde of the said village.
Accordingly, they reached to his house. At his house, police informed
them that one dead body was found and Aadhar Card of Manoj was
found near the dead body. This happened in the night of
04.10.2013. On 05.10.2013, these two ladies were called at
Kasturba Hospital, Sewagram to identify the dead body. They along
with Vandana, another sister of the deceased who was also called by
Padma (PW4), reached to the hospital and she identified the dead
body. After the statements of the relatives were recorded, the
Investigating Officer in view of the suspicion raised by the relatives
against accused no.1 Monika, arrested her by giving intimation to
one of her relative Seema Mahatme. That intimation is at Exh.303.
Arrest form of accused no.1 Monika is at Exh.304. The happening of
the said day in respect of the crime was recorded in the Station Diary.
Extract of the said Station Diary entry is at Exh.305.
After arrest of accused Monika, she was interrogated.
During investigation, the Investigating Officer found involvement of
some other persons.
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13. During investigation, the Investigating Officer received
information that two persons involved in the crime are coming to
Yavatmal. He, therefore, along with Vijay (PW17) and Sachin
(PW18) went to Yavatmal. Before taking them with him, the
Investigating Officer gave summons to them (Exh. 215). They
reached to Wadgaon area of Yavatmal. As informed, police waited
near Bhagyoday Society. They noticed one white colour car reaching
there. It was Indigo car bearing registration No. MH-29/K-7154.
The said car was stopped near Bhagyoday Society. The person who
was sitting beside the driver came out of the car and tried to flee
away., however he was caught by police. The driver was also called
and he disclosed his identity as Pramod Rannavare (accused no.2).
14. On personal search of Pramod, the Investigating Officer
found one mobile phone and cash amount of Rs.51,000/-. Search of
the car was also made. That time, police party found that the seat
covers were not there on the rear seat. However, there were some
blood stains. The cell phone and cash amount of Rs.51,000/-
recovered from the person of accused no.2 were seized. Similarly,
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Indigo car was also seized from his possession. These all three were
seized under seizure panchanama (Exh.217).
15. The another person, who was caught, disclosed his
identity as Nitin (accused no.4). His personal search was also made
and in that one mobile phone and cash amount of Rs.8,000/- were
found from his person. The Investigating Officer seized the same in
presence of panchas under seizure memo (Exh.216).
16. The Investigating Officer on physical verification of both
these accused found injuries on their hand. During interrogation,
they revealed about another person Ashish Kathale, resident of
Kalgaon. The accused persons shown the house of Ashish. The
Investigating Officer went near his house and gave a call. Responding
to that call, one person came out of the house and on enquiry, he
disclosed his identity as Ashish Kathale. During his personal search,
one mobile and cash amount of Rs.7,500/- were found. Those were
seized in presence of the panchas under seizure panchanama
(Exh.219). Thereafter, the Investigating Officer arrested these three
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accused by preparing arrest panchanama (Exh.220). Their arrest
forms are at Exhs.310 to 312.
The Investigating Officer took entry of all these
proceedings in the Station Diary. Extract of the Station Diary dated
10.10.2013 is at Exh.313.
17. On 11.10.2013, again notice was given to panch Vijay
(PW17) and Sachin (PW18). It is at Exh.221. Accordingly, they
came to the police station. Thereafter, the Investigating Officer took
out accused no.2 Pramod from lock-up and made enquiries with him
in presence of panch witnesses. He gave his voluntary statement that
he will show the spot of the incident. Accordingly, accused Pramod
took them to Power Grid situated at MIDC, Deoli, then to Madkona,
Kalamb Road. Thereafter, he took them to Kalgaon area and shown
the place where the dead body was found. The Investigating Officer
recorded all these proceedings in running panchanama (Exh.222).
18. On 12.10.2013, the Investigating Officer along with
arrested accused Monika and police staff came to Central Reserve
Police Force camp, Nagpur, where the deceased was residing with
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Monika. In presence of panchas, the lock of quarter of the deceased
was broke open and from the said residential quarter, two mobile
phones, one sim card, sim card cover, cash amount of Rs.10,500/-,
saree, blouse and two handkerchiefs were seized in presence of
panchas. The seizure panchanama is at Exh.149. The said
panchanama bears signatures of the panchas as well as accused
Monika. From Nagpur, police came back to police station, Deoli.
The Investigating Officer took entry of these proceedings in the
station diary. Extract of station diary dated 12.10.2013 is at Exh.317.
19. On 13.10.2013, accused Ashish (accused no.3)
volunteered to give his disclosure statement. Therefore, the
investigating Officer gave summons to panchas (Exh.223). In
presence of panchas, accused Ashish gave his statement that he is
ready to disclose the place where two wheeler Activa of the deceased
is kept and to show the place where the weapons were concealed. He
also volunteered to disclose the place where his clothes and mobile is
concealed. The admissible portion is marked as Exh.224. In
pursuance to the disclosure statement, police party was led by
accused Ashish along with panchas. He first took them to village
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Kalgaon. There he took them at his house. From his house, he took
out clothes and mobile phone from one bag, which was kept in the
house. Thereafter he took them in one agricultural field at Kalgaon.
In that agricultural field, near Mango tree, he shown the spot where
he concealed the weapon beneath the ground. On digging, two
knives wrapped in newspaper were found. Those were having blood
stains. Thereafter, he took the police party to Jagruti Parking park,
situated at Chhatrapati square, Wardha Road, Nagpur. There he
shown one black colour Active vehicle having registration No. MH-
29/W-1287. All these proceedings were recorded in the seizure
panchanama (Exh.225). It is to be mentioned here that all the
articles which were seized from the places which were shown by
accused Ashish in presence of the panchas, were not only seized on
the spot but they were sealed on the spot itself in presence of the
panchas.
20. During the course of investigation, on 14.10.2013, the
Investigating Officer issued separate letters in the name of Kasturba
Hospital, Sewagram for obtaining blood samples and nail clipping of
accused Pramod, Ashish and Nitin. Those are at Exhs.320 to 322.
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On the same day, he gave three different letters to Kasturba Hospital,
Sewagram for giving reports in respect of the injuries on the person
of three accused. Those letters are at Exhs.165 to 167. Similarly, a
request was also made to the hospital authorities for giving report in
respect of blood stains on the rear seat of Indigo car vide request
letter (Exh.164). In response to the letter (Exh.164), the Medical
Officer sent sample of the rear seat containing blood stains along
with PC Imran in sealed condition. He seized the said under seizure
panchanama (Exh.227).
The Medical Officer also sent blood samples of three
accused in sealed condition. Those sealed sample bottles were seized
under seizure panchanama (Exh.226).
21. On 16.10.2018, the Investigating Officer again called
panchas by giving summons (Exh.228). In their presence, accused
Pramod gave his voluntary statement about his clothes, seat cover of
car and motorcycle, which was concealed at his house at Wadgaon,
at Yavatmal. The admissible portion is at Exh.229. Similarly,
accused Nitin also gave his voluntary statement to disclose about the
mobile phone of deceased Manoj and to show the place at Shivaji
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Garden, Yavatmal where he threw the pieces of sim card of deceased
Manoj. The admissible portion of his statement is at Exh.230.
Thereafter, police party along with accused Pramod and
Nitin along with panchas proceeded for Yavatmal at the house of
accused Pramod at Wadgaon. There, he took out the keys concealed
below brick and opened the lock. He took them to kitchen room and
form one almirah, of the kitchen, he produced two seat covers and
one pant, on which blood stains were found. Those were seized and
sealed in presence of the panchas by preparing seizure panchanama
(Exh.231). Similarly, accused Pramod also showed a motorcycle
having registration No. MH-29/AB-1601 kept behind his house. That
was also seized under same seizure panchanama (Exh.231).
22. Similarly, accused Nitin took police party to his house at
Wadgaon of Yavatmal. From his house, he produced mobile phone of
deceased Manoj. It was of Nokia company. It was seized. Thereafter,
he took the police party to Shivaji Garden, Yavatmal. He showed the
place where the pieces of sim card were thrown. After search, those
were found there in two pieces. It was a sim card of Vodafone
company. The articles recovered from the spot shown by accused
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Nitin were seized under seizure memo (Exh.232). Thereafter, the
police party came to Police Station, Deoli and the Investigating
Officer took entry of the proceedings of the day in the Station Diary.
Extract of the station diary is at Exh.323.
On 19.10.2013, the Investigating Officer informed the
learned Chief Judicial Magistrate about adding of other penal
provisions.
23. During the course of interrogation, it was revealed to
the Investigating Officer by accused Monika that she had withdrawn
the amount from the bank. Therefore, on 25.10.2013, the
Investigating Officer issued two letters to the State Bank of India,
requesting to furnish details of the accounts of Monika.
24. On 28.10.2013, the Investigating Officer issued four
separate letters for weapon query of injuries found on three accused
persons to Kasturba Hospital, Sewagram, under Exhs.171 to 174. In
response to the said, he received report (Exhs.175 to 178). The
weapons were sent to the Doctor in sealed condition.
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25. On 28.10.2013, the Investigating Officer issued letter to
the Superintendent of Police, Wardha for providing SDR of broken
sim card, seized at the instance of accused Nitin. It is marked as
Exh.329. Also a letter was given to the Superintendent of Police,
Wardha for providing CDR of mobile phone of accused persons and
deceased Manoj. It is at Exh.330.
On 07.11.2013, the Investigating Officer sent the seized
articles in sealed condition along with HC Vijay Dhawale (PW13).
The duty pass given to HC Vijay is at Exh.194. After depositing the
muddemal with the Chemical Analyser, HC Vijay Dhawale submitted
compliance report (Exh.194). The invoice challan is at Exh.331. On
22.11.2013, the Investigating Officer sent the weapons seized in
sealed condition to the Chemical Analyser. It is at Exh.282. It was
sent through PC Pramod Dudhankar (PW23) by giving duty pass
(Exh.281). PC Pramod Dudhankar placed invoice challan in
Exh.283.
26. On 29.11.2013, a letter was given to the Special Judicial
Magistrate for recording statement of the witness under Section 164
of the Code of Criminal Procedure. On the same day, he gave a letter
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to the learned Judicial Magistrate, First Class for giving permission to
conduct Test Identification Parade of accused Monika and Pramod.
The said letter is at Exh.334. On 30.11.2013, he issued a letter to
the Executive Magistrate to conduct test identification parade of
accused Monika and Pramod as permitted by the learned Judicial
Magistrate First Class. The letter given to the Executive Magistrate is
at Exh.335. He received the report of test identification parade along
with covering letter. He also conducted the investigation in respect
of Indigo car. During investigation, it was found that deceased
Manoj was serving at Central Reserve Police Force and because of his
service, he was required to be transferred at various States and
during that accused Monika used to stay at Yavatmal only and love
relation between them were developed. When this fact was came to
the knowledge of the deceased, he was murdered.
On 06.01.2014, after completion of the investigation,
charge-sheet was filed. After the charge sheet was filed, on
09.05.2014 Chemical Analyser's reports were received. Those are
placed on record. Articles 1 to 16, 18, 20, 22 to 26, 28 to 37 which
were the articles seized during the course of investigation.
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27. The learned jurisdictional Magistrate, in whose Court
final report was presented, found that the offence was exclusively
triable by the Court of Sessions and therefore, he committed the case
to the Sessions Court. There it was registered as Sessions Case No.
11/2014. Total 29 prosecution witnesses were examined. After
closure pursis was filed by the learned Public Prosecutor, who was in
charge of the trial, statements of the accused persons under Section
313 of the Code of Criminal Procedure were recorded by the learned
Judge of the trial Court. All the incriminating evidence were brought
to their notice during their examination to give them an opportunity
to offer their explanation. No defence witness was examined by any
of the accused. According to accused no.1 Monika, she is being
falsely implicated by the relatives of her husband because their
relation with her were not cordial and they were intending to get all
the compensation amount of the deceased. She also stated that
PW10 Gopal is having close relation with them and therefore, he is
deposing against her. The other accused persons did state that all the
witnesses are stating against them at the behest of the Investigating
Officer and they are falsely implicated.
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28. The learned Judge, before whom the trial was
conducted, after appreciating the entire prosecution case found that
the prosecution was successful to bring home the guilt of accused
persons and accordingly he delivered the judgment, which is
impugned in this appeal.
ARGUMENTS
29. We have heard Shri Avinash V. Gupta. Learned Senior
Advocate for accused no.2 Pramod. Though, the remaining accused
were represented by different counsel Shri Mahesh Rai, he did not
submit anything on their behalf rather he chose to adopt all the
arguments advanced by the learned senior Advocate, because even
their case was also covered by learned senior Advocate in his
submissions.
30. Summary of the arguments of learned senior Advocate is
cataloged as under :
a] There is no eye -witness account. The prosecution could
not complete the chain of events as required.
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b] The prosecution could not prove motive exclusively.
c] The amount withdrawn by accused no.1 Monika from
the bank cannot be an incriminating circumstance since
it was her money.
d] Seizure of Rs.51,000/- from the person of accused no.2
Pramod cannot be an incriminating circumstance
because one of the prosecution witness did state that he
does illegal money lending.
e] All the recoveries made during the course of the
investigation must go because those were not seized in
presence of independent panch witnesses, but the panch
witnesses were the puppet of police machinery.
f] The CDR reports has no evidencial value because the
certificate purported to be issued under Section 65-B of
the Evidence Act are not in conformity with the
provisions of law.
g] Noticing of blood on the clothes of the accused persons
cannot be an incriminating circumstance because even
according to the prosecution, at the time of their arrest
they were having injuries.
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31. Primarily, the learned Senior Advocate kept reliance on
the authoritative pronouncements of the Hon'ble Apex Court in
Anwar P.V. .VS. P. K. Basheer and others , reported in (2014) 10 SCC
473 and in Arjun Panditrao Khotkar .vs. Kailas Kushanrao Gorantyal
and others, reported in (2020) 7 SCC 1, to buttress his submission
that the electronic evidence must go and cannot be relied upon. He
submitted that if said electronic evidence is discarded, then there is
hardly any evidence in the prosecution case. He, therefore, prayed
that both the appeals be allowed and the appellants who are in jail
be set at liberty.
32. Per contra, Mr. S.S. Doifode, learned Additional Public
Prosecutor for the State vehemently opposed the submissions. He in
detail submitted with vehemance the prosecution case. It is his
submission that the learned Judge of the trial Court has not
committed any error in recording finding of guilt against each
accused. He, therefore, prayed for dismissal of the appeals.
ANALYSIS OF PROSECUTION CASE
33. From the entire evidence on record, it is clear that there
is no eye-witness account in this case. The Hon'ble Apex Court in
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Sharad Birdhichand Sarda .vs. State of Maharashtra, reported in
(1984) 4 SCC 116 is the guiding lamp in respect of the decisions in
the cases solely based on circumstantial evidence. The Hon'ble Apex
Court has given following five guidelines :-
"a. The circumstances from which the conclusion of guilt is
to be drawn should be fully established. The
circumstances concerned "must" or "should" and not
"may be" established ;
b. The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty ;
c. The circumstances should be of a conclusive nature and
tendency ;
d. They should exclude every possible hypothesis except
the one to be proved, and
e. There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused."
NATURE OF DEATH
34. After the dead body of unknown person was found,
steps were taken by the Investigating Officer for its identification.
The dead body was identified as of Manoj Bhabat.
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35. On 05.10.2013, dead body of Manoj was sent to
Kasturba Hospital, Sewagram for its post mortem. Team of Doctors
conducted post mortem. Dr. Pawan Wankhade (PW11) was
examined to prove the post mortem report. His evidence would
show that during post mortem, following injuries were found on the
person of deceased.
i] Incised wound over the lateral aspect of
right thigh, size 6 cm x 3 cm, margins were sharp,
tailing was present, towards upper end wound was
horizontally placed. Floor of the wound was
swollen due to decomposition. At some place
margins are eaten by the maggots. The colour of
the floor of the wound is bluish black and colour
of margins pinkish.
ii] Stab wound was present over right side of
the chest 2 cm below medial 1/3rd of right
chavicle (Collar bone) of size 3 cm x 2 cm,
thoracic cavity deep, dark brown in colour,
obliqualy down word in direction wound was
trangular in shape, margins were clean cut. The
floor of the wound showed altered blood and some
maggots. Surrounded area of wound was dark
bluish in colour due to effusion of blood. Cut
fracture of the second rip was appreciated and
hemorrhage was appreciated at the cut ends of the
ribs.
iii] Stab wound was present over the left side of
the abdomen about 3 cm. above and lateral to the
umbilicus of size 3 cm x 1.5 cm, abdominal cavity
deep, pinkish white in colour, directed vertically
25 APEAL397.16+1.odt
upwards beveling was present over upper margin
of the wound, margins were clean cut and
contused."
36. The injuries were found to be ante mortem. During
internal examination, the autopsy surgeon found decomposition
changes of the lungs, brain heart, liver, spleen, kidney. During post
mortem, it was also found that blood was inflicted around the
thoracic wall. Final post mortem report is at Exh.161.
37. Looking to the evidence of the Doctor and the injuries as
noticed in the post mortem report (Exh.161), it is clear that Manoj's
death was not only unnatural one, but it was homicidal one.
EXAMINATION OF WEAPONS BY AUTOPSY SURGEON.
38. Evidence of Dr. Pawan Wankhade (PW11) would show
that on 28.10.2013, the hospital where he was working, received
letters (Exhs.171 to 174) and weapons for examination and opinion.
The said were received by Dr. Vishal Surwade, another Doctor and
member of the team who conducted post mortem, as, it could be
26 APEAL397.16+1.odt
seen that Dr. Vishal Surwade's name appeared at the end of post
mortem report.
Be that as it may. Dr. Wankhade (PW11) identified
signature of Dr. Vishal Surwade on the report (Exh.178). Along with
the letters, two knives were sent in sealed condition. After
examining the weapons i.e. knives and considering the injuries found
on the dead body of deceased Manoj during post mortem, Doctor
opined that the injuries found on the dead body were possible due to
the weapons Article 30 and 31. It is to be noted here that the
Autopsy Surgeon identified two knives in the Court at the time of
giving his evidence.
MOTIVE
39. According to the prosecution, the cause for eliminating
Manoj from this world was the illicit relations between accused
Monika and accused Pramod. In order to accomplish the same,
accused no.3 Ashish and accused no.4 Nitin had active participation.
Thus, this is the motive as per the prosecution.
27 APEAL397.16+1.odt
40. Learned Senior Advocate has submitted that there is no
clinching evidence by which it could be said that the prosecution has
proved the aspect of motive. He submitted that the present
prosecution case being solely based on circumstantial evidence, it
was incumbent upon the prosecution to prove the motive. According
to him, since the prosecution has failed to prove the motive,
prosecution must fail on that count itself.
41. Before adverting to the factual matrix concerning
motive, we would like to test the arguments of the learned senior
Advocate that if the prosecution is unable to prove motive, whether
by that itself the prosecution case has to be thrown in the dust bin.
42. The Hon'ble Apex Court has ruled that it is a matter of
common knowledge that murders are committed without any pro-
eminent motive. It is well established that mere fact that the
prosecution has failed to translate the mental disposition of the
accused into evidence that does not mean that no such mental
condition exceeded in the mind of the accused.
28 APEAL397.16+1.odt
43. In Criminal Appeal No. 50/2014 (Kirti Pal .vs. State of
Bengal) and in Criminal No.1725/2014 (Durga Sutradhar .vs. State
of West Bengal), decided on 16.04.2015, the Hon'ble Apex Court in
paragraph 21 has observed as under :
"21. Learned counsel for the first appellant
contended that no motive is attributed to the
accused and merely because the first appellant had
developed friendship and intimacy with Anjali
Goswami, in the absence of any motive attributed,
the courts below erred in convicting the first
appellant. It is true that motive is an important
factor in cases where the conviction is based on
circumstantial evidence but that does not mean in
all cases of circumstantial evidence if prosecution is
unable to prove the motive satisfactorily, the
prosecution must fail. In this case, of course,
prosecution has not adduced evidence as to what
was the motive for committing murder of Anjali.
But it is a matter of common knowledge that
murders have been committed without any pro-
eminent motive. It is well established that the mere
fact that the prosecution has failed to translate the
mental disposition of the accused into evidence,
that does not mean that no such mental condition
existed in the mind of the accused."
Same view has been taken in Vivek Kalra .vs. State of Rajasthan,
reported in 2014 (12) SCC 439. In paragraph 17 of the said
pronouncement, it was observed thus :
29 APEAL397.16+1.odt
"17. Where the prosecution relies on
circumstantial evidence, actual motice is relevant
fact and can be taken into consideration under
Section 8 of the Evidence Act, 1871. But where the
chain of other circumstances establish beyond
reasonable doubt that it is the accused and the
accused alone who has committed the offence and
this is one of such case, the Court cannot hold that
in absence of motive of the accused being
established by the prosecution, the accused cannot
be held guilty of the offence."
44. Motive is always locked inside the mind of perpetrator
of the crime. There cannot be ocular evidence to prove the motive
normally. The factum of motive can be gathered from the
circumstances and the events brought on record. If the events
brought on record are such to attribute something unusual, it can
then, in our view, be the reason to believe that motive exists and in
order to accomplish the motive, act of murder is done.
45. To prove motive in the present case, the prosecution has
examined mother, brother and sister of decesaed Manoj. In addition
to that, the prosecution has also examined bank officials and
transactions done by accused no.1 Monika.
30 APEAL397.16+1.odt
46. PW1 Kusum Bhabat and PW4 Padma Sangai are the
mother and married sister of deceased Manoj. PW4 Padma is
resident of Amravati, however on 04.10.2013, she was at her
mother's house at village Bramhanwada. These two ladies
corroborate with each other that on 04.10.2013 Madhavrao Dhawde
of their village came to PW1 Kusum's house and he called them at his
house. Accordingly, these two ladies went to the house of
Madhavrao. At his house, it was informed to them by police that one
dead body is found within the jurisdiction of Police Station, Deoli
and Aadhar Card of Manoj is found near the dead body. From the
evidence of PW1 Kusum, it is clear that the said fact was transmitted
to them by police on phone. They were asked to confirm about the
body. Therefore, they went to Kasturba Hospital, Sewagram and they
identified the body.
PW2 Nilesh Bhabat is the brother of the deceased. At
the relevant time, he was at Parbhani. He received information on
phone from one Sunil Nale about noticing of dead body of a person
and along side with it there was identity card of Manoj. After
receiving this information, Nilesh made enquiries with his relatives
and it came to his knowledge that relatives were called to identify
31 APEAL397.16+1.odt
the body. He, therefore, on 05.10.2013 left for Bramhanwada from
Parbhani and reached there in the afternoon. His evidence would
show that at 5.00 p.m. dead body of Manoj was brought by his
mother and sister and other persons from Brahmanwada. Thereafter,
last rites were performed.
47. As per the evidence of these three prosecution witnesses,
marriage between deceased Manoj and accused Monika was
solemnized in the year 2000 and the couple was having one son by
name Nayan. The parental house of accused Monika is at Malipura,
Yavatmal. Deceased Manoj was serving in Central Reserve Police
Force. In view of his service, he used to be transferred at distant
places and States far away from Maharashtra. At the relevant time,
he was residing at CRPF quarters at Nagpur.
It is not in dispute at all that whenever deceased used to
be transferred out of State of Maharashtra, accused Monika used to
stay at Yavatmal as the deceased had purchased one house in her
name at Yavatmal. Evidence of these three witnesses would show
that accused Monika was not permitting the deceased to have
relations with these prosecution witnesses. According to them, she
32 APEAL397.16+1.odt
used to pick up quarrel with them on the said issue. Precisely,
therefore, it is the submission of the learned senior Advocate that
hence, these three prosecution witnesses were on inimical terms with
Monika and therefore, they are falsely implicating her in the crime.
48. It is the evidence of Nilesh (PW2) that when he was
living at Yavatmal, he received information that Monika has
developed illicit relations with somebody. According to him, he came
to know about the said in the year 2009. He had seen them around
and the said person used to regularly visit the house of accused
Monika and when deceased had come on vacation, he gathered
knowledge about this and on that count there used to be quarrel in
between Manoj and Monika.
49. Learned senior Advocate criticized Nilesh (PW2) for
non-disclosure of the information about the illicit relations of Monika
to deceased Manoj. He, therefore, submitted that this is nothing but
figment of imagination of prosecution witness.
We are unable to persuade ourselves to this submission
as canvased by the learned senior Advocate. It appears that the
33 APEAL397.16+1.odt
deceased was the elder brother of Nilesh (PW2). In our conservative
society, the status of wife of elder brother has its own place in the
family. In the conservative society of ours, respect is always
bestowed on her. Merely because Nilesh did not disclose the
knowledge which he gathered about the relationship, that does not
mean that there must not be the relations. It is quite possible that
out of respect he must have hesitated to disclose the said to Manoj.
Further, it is quite possible that Manoj was posted far away from
Maharashtra and therefore, at the relevant time it must be the
consideration of Nilesh that why he should bother his elder brother.
Merely because at the relevant time the factum of illicit relations was
not disclosed, though it was in know of Nilesh, he failed to
communicate the same to the deceased, in our view, that by itself is
not sufficient to discard evidence of Nilesh, which otherwise inspires
confidence.
50. The prosecution has examined two senior employees of
State Bank of India, Yavatmal, they are Dattatray Tukaram Rathod
(PW3) and Smt. Mangala Uddhavrao Sukhdeve (PW8).
34 APEAL397.16+1.odt
From July, 2014, Dattatray Rathod (PW3) was working
as a Manager(PBD) at Yavatmal SBI Branch, whereas from July-2012
till March-2014, Smt. Mangala Sukhdeve (PW8) was posted at SBI
Yavatmal as Personal Banking Manager.
51. During the course of investigation, the Investigating
Officer came to know about the bank transactions done by accused
Monika. Therefore, he collected evidence in that behalf.
52. As per the evidence of PW3 Dattatray Rathod, Branch
Manager Arun Ingle had supplied information to PSO Deoli as asked
by police vide letter dated 25.10.2013. At the time of giving his
evidence, he brought those original papers supplied by the bank to
police as per letter dated 25.10.2013.
His evidence would show that at his branch, one saving
account of Monika Bhabat was there. From the official record, he did
state the saving account number of Monika as 11150607717. He
also deposed from the witness box that Monika had three Fixed
Deposit receipts with the bank. As per his evidence, on 03.10.2013
Monika Bhabat moved an application for withdrawing the said three
35 APEAL397.16+1.odt
Fixed Deposits and accordingly, the amount from these fixed deposits
were transferred in her saving account. Her evidence would show
that as per the record on 03.10.2013 Monika had withdrawn an
amount of Rs.1,14,000/- from the saving account. As per his
evidence, this information was supplied to Police Station, Deoli in
response to their letter dated 25.10.2013 along with covering letter
dated 25.10.2013. The said letter was signed by Branch Manager
Arun Ingle. As this witness PW3 Dattatray Rathod was working with
Arun Ingle, he was able to identify his signature and accordingly, he
proved the said covering letter, which is at Exh.l28. Exh.129 is the
information supplied to the police.
53. As per the evidence of PW3 Rathod, his SBI Branch at
Yavatmal is a computerized branch. All records are maintained in
computer. As per his evidence, official record shows that on
31.10.2013, Branch Manager had supplied copies of fixed deposit
receipts of Monika to PSO Deoli under covering letter dated
31.10.2013 (Exh.130).
There is nothing in his cross-examination to show that
he was not deposing as per the record maintained by the bank.
36 APEAL397.16+1.odt
Therefore, there is no difficulty at all to accept and endorse the
evidence of this bank official.
54. Another bank officials is Sou. Mangala Sukhdeve (PW8).
Her evidence would show that she had supplied photo copies of three
fixed deposit certificates and withdrawal form. The photo copies
were duly verified by her from original and then put her signature. At
the time of recording of her evidence, she had brought originals of
those documents in the Court. During her evidence, verification of
the contents were made and after they were found to be similar with
the original, those three copies were marked as Exhs.144 to 147.
Perusal of Exh.144 would show that it was the fixed
deposit receipt in the name of Monika. The said receipt shows that it
was for Rs.10,166/- issued on 22.03.2013 and it was for the period
of three months and three days. Interest was 6.5% per annum. The
receipt shows that its maturity date was 25.06.2013. Exh.145 was
the another fixed deposit receipt. It was issued on 13.05.2013 and in
that receipt, the amount of Rs.50,000/- was kept for six months at
the interest rate of 6.50% per annum. Its maturity date was
13.11.2013. Exh.146 was the another fixed deposit receipt, issued
37 APEAL397.16+1.odt
on 03.05.2013. Deposit of Rs.50,000/- was made and accrued rate
of interest was 8.75% per annum and the maturity date was
03.05.2014.
55. Accused no.1 Monika liquidated these three deposits
worth Rs.1,14,000/-. The said amount was transferred to her saving
account.
On 03.10.2013 itself, she filed withdrawal form with the
bank (Exh.147) and asked the bank to pay the amount of
Rs.1,14,000/- in cash. Accordingly, the Passing Officer of the bank
allowed Monika to withdraw the amount. When Monika's statement
was recorded under Section 313 of the Cr. P. C., questions were put to
her in that behalf i.e. Question Nos.31 and 32 and Monika had
accepted the said transaction as done by her. Be that as it may. The
record of State Bank of India duly proved by its two senior
employees shows that accused Monika was having three different
fixed deposits and before maturity, except the first one, on
03.10.2013, she applied for liquidating them prematurely and
requested the bank to transfer the same in her saving account.
38 APEAL397.16+1.odt
Having done so, on the very same day itself, she filled withdrawal
form and withdrew Rs.1,14,000/- in cash.
56. It was the submission of learned senior Advocate that
withdrawing her own money from the bank is hardly any
incriminating circumstance that can be used against accused Monika.
At the first blush, one would tend to accept the said
submission, however, for the following reasons we are unable to
accept the said submission :-
a] Premature liquidation of the fixed deposit receipts has
its own consequences in respect of the account holder
receiving the proceeds.
b] At the relevant period and in the city like Yavatmal,
amount of Rs.1,14,000/- is not a small amount by itself.
c] Importantly, the amount was withdrawn in cash. It
postulates that Monika was having some hard pressed
need to have cash amount.
d] No prudent person will liquidate his/her fixed deposit
receipts prematurely and will withdraw the amount in
cash.
39 APEAL397.16+1.odt
e] What was the need ? It was for Monika to throw light
on the same. She should have offered some explanation
about the same.
f] The prosecution has discharged its burden to prove the
fact about liquidation and withdrawal of the amount in
cash. Therefore the purpose for which it was withdrawn
was within the special knowledge of Monika and
therefore, in view of the provisions of Section 106 of the
Evidence Act, it was for Monika to offer explanation and
in our view, failure in doing so will permit this Court to
draw an adverse inference against her at least in that
behalf.
57. For the aforesaid reasons, we reject the contention of
the learned senior Advocate that it was own money of accused
Monika and she was at liberty to act as per her will.
58. We have already noticed in the body of this judgment
that the Autopsy Surgeon Dr. Pawan Wankhade (PW11) has proved
the final post mortem report (Exh.161). The relevant opinion in
40 APEAL397.16+1.odt
respect of the time since death is at page 115 of the paper book. It
reads as under :
1. Opinion as to time since death :
Death occurred around 96 hours before the
commencement of the Post Mortem Examination.
Document Exh.161 and the evidence of Dr. Wankhade
(PW11) would show that post mortem commenced on 05.10.2013 at
10.45 am and it was over by 12.00 noon. It is also came in evidence
that when the dead body was brought for post mortem, it was
decomposed.
59. As per the opinion of the Autopsy Surgeon, death must
have occurred 96 hours prior to 5.10.2013. Thus, conveniently on
the basis of proved document (Exh.161), which is not at all
challenged by any of the accused, it can be said that death of Manoj
had occurred on 01.10.2013.
60. At the relevant time, Monika and deceased were residing
jointly at Nagpur. Time of death of Manoj and time of withdrawal of
amount of Rs.1,14,000/- shows that there was gap of two days.
Thus, amount of Rs.1,14,000/- was withdrawn in cash by Monika
41 APEAL397.16+1.odt
after the death of her husband. There is nothing on record to
suggest that any attempt was made by Monika to trace out the
whereabouts of her husband from 01.10.2013 till his dead body was
identified by his mother.
61. At the time of arrest of remaining three accused, huge
amount by their standard in life, was found in their possession.
Different denominations of amount were recovered from their person
by the Investigating Officer in presence of the panch witnesses Vijay
(PW17) and Sachin (PW18). Arrest form (Exh.310) of accused Nitin
shows his occupation as a labour, whereas arrest form (Exh.311) of
accused Ashish and arrest form (Exh.312) of accused Pramod show
their occupation as 'agriculturists'. The cause title of Criminal Appeal
No. 416/2016 as well as Criminal Appeal No. 397/2016 also show
occupation of the accused persons in conformity with their respective
arrest forms. In that behalf, the amount to the extent which they
were possessing on their person at the time of their respective arrest,
will obviously raise eyebrows of anyone.
42 APEAL397.16+1.odt
62. At the time of arrest, an amount of Rs.51,000/- was
found on the person of accused Pramod. According to the learned
senior Advocate, the prosecution has examined PW6 Rakesh Bansod
as owner of four wheeler Indigo car. He submitted that if his
evidence is perused then it will show that he had borrowed hand
loan of Rs.80,000/- in the month of August-2013 from accused
Pramod and by way of security he had handed over possession of his
car to Pramod and as per his evidence, in the month of September-
2013, Pramod demanded amount of Rs.4,000/- towards interest and
accordingly, the same was paid to him. In view of this, it is the
submission of the learned senior Advocate that if Pramod was having
money lending business, then amount of Rs.51,000/- which he was
possessing at the time of his arrest, is a very meager amount and that
cannot be used an incriminating circumstance in any manner
whatsoever against him.
63. From the evidence of PW6 Rakesh, the only fact
established is that in August-2013, he had borrowed Rs.80,000/-
from accused Pramod and he paid Rs.4,000/- towards interest in the
month of September-2013 to Pramod. We have seen from arrest
43 APEAL397.16+1.odt
memo (Exh.312) that accused Pramod was arrested on 10.10.2013.
So, surely, the amount was not paid that too Rs.4,000/- by PW6
Rakesh to Pramod in the proximity of his arrest. Therefore, it was
for accused Pramod to explain as to how Rs.51,000/- he was
possessing at the time of his arrest. Similarly, accused Nitin and
accused Ashish also failed to offer any explanation whatsoever in
nature about the money in their possession at the time of their arrest.
Evidence of the Investigating Officer Dhananjay Sayare (PW25)
shows that on 12.10.2013 he gave request letter to D.I.G., CRPF,
Nagpur (Exh.316) under which a request was made for taking search
of the quarter of Manoj where he and Monika used to stay.
Accordingly, in presence of the panchas, the lock was broke open.
The house search panchanama is at Exh.149. The said shows that at
the time of search on 12.10.2013, cash amount of Rs.10,500/- was
found.
64. From the aforesaid evidence, as appearing in this
prosecution case, there is no difficulty in recording a finding that
huge amount of Rs.1,14,000/- was withdrawn by accused Monika in
cash from her saving account, without there being any legal cause to
44 APEAL397.16+1.odt
spend the same and various denominations of currency notes were
found on the person of three remaining accused in the proximity of
time of withdrawal of the amount and Rs.10,500/- were found in her
house. In our view, it clearly shows and suggests that the amount so
withdrawn by Monika was used as reward to other accused persons
for the illegal act which they had done in respect of her husband.
Cumulative effect of aforesaid circumstances, as discussed, allows us
to record a finding that there was a motive on the part of accused
no.1 Monika and accused no.2 Pramod to eliminate Manoj in view of
their illicit relations and accused nos.3 Ashish and accused no.4 Nitin
acted in furtherance of their common intention which they shared
with accused nos.1 and 2. Accordingly we record our finding.
ELECTRONIC EVIDENCE
65. Shri Avinash Gupta, learned Senior Advocate submitted
that the entire electronic evidence relied upon by the prosecution is
not admissible as certificates below Exhs. 252, 259, 264 & 273 are
not in accordance with Section 65B(4) of the Evidence Act. He, in
addition to filing the written submissions, submitted that none of
these certificates identify the electronic record containing the
45 APEAL397.16+1.odt
statements i.e. CDR in the matter. He submitted that the certificates
below Exhs. 252 & 259 are completely silent regarding the manner in
which the statements were produced. He submitted that the
certificates below Exhs. 264 & 273 deal with the manner in which
the statements are produced but are entirely omitted, identifying the
original electronic records. He submitted that none of the certificates
give any particulars of the device like serial numbers, make or
identification number that was involved in the production of the
electronic record. He submitted that the certificates below Exhs. 252
& 259 do not state that the computer output was produced by a
person having lawful control over the use of computer as required
under Section 65B(2) of the Evidence Act. He submitted that none of
the certificates are signed by either a person occupying a responsible
official position in relation to the operation of the relevant device or
the management of the relevant activities. The respective Nodal
Officers are neither falling in any of these two categories and neither
have stated so in their certificates. He submitted that omission to
specify particulars or the devices or computers over which they had
control is fatal to the case of the prosecution, and therefore the
certificates relied upon by the prosecution in support of electronic
46 APEAL397.16+1.odt
evidence are not admissible in evidence. He submitted that the
concept of a "Substantial compliance" is not applicable to the
secondary evidence to be relied upon by the prosecution in view of
the judgment of the Hon'ble Supreme Court in Arjun Panditrao
Khotkar (supra). It needs to be noted that learned senior Advocate
for the appellants has not disputed the exchange of calls between the
accused persons. He has not made any submissions challenging the
findings of the learned trial Court referring to cellphone locations of
the accused persons and exchange of calls between them at the
relevant time.
66. Sections 65A & 65B of the Evidence Act deal with the
admissibility and contents of the evidence of information contained
in electronic record which are complete code in themselves on the
point of admissibility of evidence of information contained in
electronic records. Section 65B(1) of the Evidence Act differentiates
between the original document and the output from such devices.
The original document is the electronic record on the devices in
which the original information is first stored. The secondary
document which is in the form of output from such device which
contains the information originating from the original document i.e.
47 APEAL397.16+1.odt
a copy or data occupied from the original document. The Hon'ble
Supreme Court in the case of Arjun Panditrao Khotkar (supra) in
para no. 73.2 expounded the law on admissibility of the primary and
secondary evidence in the electronic form in the following words :-
"73.2. The clarification referred to above is that the
required certificate under Section 65B(4) is
unnecessary if the original document itself is
produced. This can be done by the owner of a
laptop computer, computer tablet or even a mobile
phone, by stepping into the witness box and
proving that the concerned device, on which the
original information is first stored, is owned and/or
operated by him. In cases where the "computer"
happens to be a part of a "computer system" or
"computer network" and it becomes impossible to
physically bring such system or network to the
Court, then the only means of providing
information contained in such electronic record
can be in accordance with Section 65B(1), together
with the requisite certificate under Section 65B(4).
The last sentence in Anvar P.V. (supra) which reads
as "...if an electronic record as such is used as
primary evidence under Section 62 of the Evidence
Act..." is thus clarified; it is to be read without the
words "under Section 62 of the Evidence Act,..."
With this clarification, the law stated in paragraph
24 of Anvar P.V. (supra) does not need to be
revisited."
48 APEAL397.16+1.odt
67. In the case of Arjun Panditrao Khotkar (supra), the
Hon'ble Supreme Court held that in case of secondary evidence the
certificate under Section 65B (4) is mandatory. It is held that such
certificate can be provided by anyone out of several persons who
occupy "responsible position" in relation to the operation of the
relevant device or any other person who may "in management of the
relevant activities". It has been held that the conditions mentioned in
Section 65B(4) of the Evidence Act have to be read as cumulative in
nature. The Hon'ble Supreme Court placed reliance upon two Latin
maxims : lex non cogit ad impossibilia i.e. the law does not demand
the impossible, and impotentia excusat legem i.e. when there is
disability that makes it impossible to obey the law, the alleged
disobedience of the law is excused. The Supreme Court in para no.
51 has observed as under :-
"51. On an application of the aforesaid maxims to
the present case, it is clear that though Section
65B(4) is mandatory, yet, on the facts of this case,
the Respondents, having done everything possible
to obtain the necessary certificate, which was to be
given by a third-party over whom the Respondents
had no control, must be relieved of the mandatory
obligation contained in the said sub-section."
49 APEAL397.16+1.odt
The Hon'ble Supreme Court in para no. 52 of the said judgment has
further observed as under :-
"52. We may hasten to add that Section 65B does
not speak of the stage at which such certificate
must be furnished to the Court. In Anvar P.V.
(supra), this Court did observe that such certificate
must accompany the electronic record when the
same is produced in evidence. We may only add
that this is so in cases where such certificate could
be procured by the person seeking to rely upon an
electronic record. However, in cases where either a
defective certificate is given, or in cases where such
certificate has been demanded and is not given by
the concerned person, the Judge conducting the
trial must summon the person/persons referred to
in Section 65B(4) of the Evidence Act, and require
that such certificate be given by such
person/persons. This, the trial Judge ought to do
when the electronic record is produced in evidence
before him without the requisite certificate in the
circumstances aforementioned. This is, of course,
subject to discretion being exercised in civil cases
in accordance with law, and in accordance with the
requirements of justice on the facts of each case.
When it comes to criminal trials, it is important to
keep in mind the general principle that the accused
must be supplied all documents that the
prosecution seeks to rely upon before
commencement of the trial, under the relevant
sections of the CrPC."
50 APEAL397.16+1.odt
68. In the light of the law expounded by Hon'ble Supreme
Court in the case of Arjun Panditrao Khotkar (supra), we have
scrutinized the certificates below Exhs. 252, 259, 264 & 273. The
Supreme Court in the case of Anvar P. V. vs. P.K. Basheer (supra)
which has been approved and clarified in the case of Arjun Panditrao
Khotkar (supra), in para no. 15, has laid down the conditions to be
fulfilled before a secondary evidence of the electronic evidence is
made admissible. The Supreme Court in para no. 15 of the said
judgment has held as under :-
"15. Under Section 65-B(4) of the Evidence Act, if
it is desired to give a statement in any proceedings
pertaining to an electronic record, it is permissible
provided the following conditions are satisfied:
a) There must be a certificate which identifies
the electronic record containing the statement;
(b) The certificate must describe the manner in
which the electronic record was produced;
(c) The certificate must furnish the particulars
of the device involved in the production of that
record;
(d) The certificate must deal with the applicable
conditions mentioned under Section 65-B(2) of
the Evidence Act; and
51 APEAL397.16+1.odt
(e) The certificate must be signed by a person
occupying a responsible official position in
relation to the operation of the relevant device."
69. In the light of the judgment of the Hon'ble Supreme
Court in the case of Anvar P. V. (supra) and the submissions made on
behalf of the appellant, we have carefully scrutinized each of the four
certificates produced by the prosecution under Section 65B of the
Evidence Act. On careful scrutiny of the certificates, we are of the
opinion that each certificate identifies the electronic record from
which the data is occupied. They also describe the manner in which
the electronic record was produced along with the particulars of the
devices. The testimonies of Vikas (PW19), Amit (PW20), Dattatraya
(PW21) & Ravi (PW22) who are the Nodal Officers from BSNL (Exh.
252), UNINOR (Exh. 259), IDEA (Exh. 264) & VODAFONE (Exh.
273) companies respectively along with the contents of the
certificates show that the Nodal Officer is occupying a responsible
position in relation to the operation of the relevant devices. The
Nodal Officers (PW19 to PW22) have stated in their testimonies that
the Call Detail Records are stored in their respective servers and the
server automatically records the call details. It is stated that the
52 APEAL397.16+1.odt
server is the electronic instrument and the Call Detail Records stated
in the server cannot be modified or altered or tampered. It is stated
that they being the Nodal Officers, they are in control of the
respective servers for assessing the data. It is also stated that during
the relevant period, respective servers were in good working
condition and they had obtained the call details from the server. It is
stated that the record produced is electronically generated computer
data.
70. Even otherwise, considering the observations of the
Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar
(supra) in para no. 51 quoted above, though it has been held that
Section 65B(4) of the Evidence Act is mandatory, yet in the facts of
the present case, the prosecution having done everything possible to
obtain the certificate in accordance with Section 65B(4) of the
Evidence Act which was to be given by third parties like BSNL,
UNINOR, IDEA & VODAFONE over whom the prosecution had no
control, they must be relieved of any infirmity in the certificates as
has been observed in the aforesaid paragraph by the Supreme Court.
53 APEAL397.16+1.odt
71. It needs to be noted that the judgment in the case of
Arjun Panditrao Khotkar (supra) has been subsequently followed by
the Hon'ble Supreme Court in Civil Appeal Nos. 8733-8734/2018 in
the case of Engineering Analysis Centre of Excellence Private Limited
vs. Commissioner of Income Tax and anr. The Hon'ble Supreme
Court in para no. 82 of the said judgment after quoting two latin
maxims which are quoted above, has referred to the observations in
the case of Arjun Panditrao Khotkar (supra) and observed in para no.
83 that as a matter of fact, even under the Income Tax Act, the High
Court of Bombay has taken a view applying the aforesaid maxims in
the context of the provisions of the relevant DTAAs to hold that the
persons are not obligated to do the impossible i.e. to apply a
provision of a statute when it was not actually or factually on the
statute book.
72. In the light of the law expounded by the Hon'ble
Supreme Court in the cases of Arjun Panditrao Khotkar (supra) and
Engineering Analysis Centre (supra), we are of the opinion that even
though it is assumed that certificate below Exh. 259 is lacking any
requirement under Section 65B(4) of the Evidence Act read with
54 APEAL397.16+1.odt
Section 65B(2), still the prosecution having done everything possible
to obtain necessary certificate and had no control over the four
cellphone companies, it must be relieved of the mandatory obligation
contained under Sub-Section (4) of Section 65B of the Evidence Act.
We therefore hold that the electronic evidence produced by the
prosecution by virtue of certificates below Exhs. 252, 259, 264 & 273
is admissible in evidence and we can read the contents of the
electronic evidence for deciding circumstances alleged by the
prosecution.
73. The electronic evidence produced by the prosecution
indicates that Mobile No. 8484022974 was used by accused Pramod
alias Premanand (SDR Exh. 258), Mobile Nos. 8551060965 and
8551063719 were used by deceased Manoj (SDR Exh. 271), Mobile
No. 7741943679 was used by accused Ashish (CDR Exh. 261) and
Mobile No. 8551063719 was used by accused Monika. CDR (Exh.
261) shows that there were 12 calls between Pramod (8484022974)
and Manoj (8551063719) on 25/09/2013. Thereafter, there were
continuous calls between those numbers till 30/09/2013. On
01/10/2013 & 02/10/2013, there was no conversation between
55 APEAL397.16+1.odt
those numbers. On 03/10/2013, at 10:23:10 hours, there was again
conversation between those numbers. Exh. 232 shows that the sim-
card of Manoj was recovered at the instance of the accused Nitin
from the garden at Yavatmal.
74. CDR of Mobile No. 8484022974 (Exh. 261) shows that
on 27/09/2013, there was one call. It shows calls from Mobile Nos.
7741943679 & 8484022974 till 04/10/2013. Mobile No.
8551063719 though was seized from Monika, this number was in the
name of one Saurabh. CDR of Mobile No. 8551063719 shows that
there were 11 incoming calls from the mobile of the accused Pramod
i.e. 8484022974 (Exh. 261). It shows that there was continuous
conversation between the accused Monika and Pramod. The mobile
tower location of the conversation between Pramod and Monika
shows that except for conversation occurred on 01/10/2013, the
tower location of the mobile of Monika was shown at Nagpur. On
01/10/2013, Monika received incoming call at 12:25:25 hours from
the mobile phone of accused Ashish (7741943679) (Exh. 265). The
location of the accused Monika was shown at Village Pardosi, BK,
Tahsil Kalamb, Dist. Yavatmal and the said conversation lasted for 30
56 APEAL397.16+1.odt
seconds. On the same day, at around 11:37:10 hours, on
01/10/2013, the location of the mobile of the accused Monika was at
Petrol Pump at Kalamb. The accused Monika, at around 16:13:23
hours, on 01/10/2013, dialed a call and location of the said call is
shown behind Mahendra-7, Mahendra, MIDC, Hingna. The time of
call matches with the version testified by Dr. Prashant (PW7). While
he stated that the accused Monika & Pramod had been to his
hospital. Thereafter, the tower location of Monika is at Priyadarshani
College, SRPF Camp, Nagpur wherein she was residing in her
quarter. On consideration of the cellphone records of the accused
persons, it lends assurance to the circumstance that the accused
Monika and Pramod were having love affair. The frequency of calls
between Monika and Pramod clearly leads to the finding that they
were having love relationship with each other. The evidence on
record in the form of CDR & tower location of the mobile phone of
Monika shows that she was near the area of incident on 01/10/2013.
The said fact also corroborates the evidence of Kusum (PW1) that
Monika used to be with the accused whenever she used to come to
Yavatmal.
57 APEAL397.16+1.odt
75. We are therefore of the view that the electronic evidence
in the form of CDR and tower location corroborates the
circumstantial evidence led by the prosecution to prove that all the
accused persons were in touch and contact with each other in
furtherance of their common intention to kill Manoj, the deceased.
ABOUT CAR
76. One of the submissions of learned senior Advocate was
that though the prosecution has examined PW6 Rakesh as owner of
Indigo car, his ownership is not proved by the prosecution and in
fact, the RTO documents which are brought on record shows that
some other person is the owner of the said car and therefore,
evidence in that behalf is required to discarded.
77. Evidence of the Investigating Officer would show that he
received information that two persons involved in the crime were
coming to Yavatmal. Therefore, he issued summons to PW17 Vijay
and PW18 Sachin (Exh.215) and along with them and the police
staff, the Investigating Officer came to Wadgaon area of Yavatmal
58 APEAL397.16+1.odt
near Bhagyoday Society. They noticed coming of one white Indigo
car. Evidence of the Investigating Officer which is corroborated by
both the panch witnesses shows that when the car was stopped, the
persons tried to flee away and they were caught by the police party.
On being asking them, they disclosed their identity as accused no.2
Pramod and accused no.4 Nitin. Exh.216 is the seizure panchanama
regarding the articles and cash which were found on the person of
accused no.4 Nitin, whereas Exh.217 pertains to seizure of the
articles and cash together with Indigo car from possession of accused
no.2 Pramod. From the evidence of the Investigating Officer and the
panch witnesses corroborative to each other on this aspect, shows
that at the time of arrest on 10.10.2013, accused no.2 Pramod was
driving vehicle Indigo car and Nitin was accompanied him. Thus,
Indigo car having registration No. MH-34/K-7154 was seized from
the possession of accused no.2 Pramod on the spot of their arrest.
Admittedly, accused Pramod is not the registered owner of said
Indigo car. According to Rakesh (PW6), he gave possession of the
said car to Pramod by way of security.
59 APEAL397.16+1.odt
78. In this criminal trial, ownership of said Indigo car
having registration No. MH-34/K-7154 is immaterial. What is
important is, the said car which was having blood stains on the rear
seat was seized from the possession of accused Pramod. Here we are
not deciding the issue of title of this car. Therefore, we have no
hesitation in our mind to reject the submission made in that behalf
by the learned senior Advocate.
INJURIES ON THE PERSON OF ACCUSED
79. At the time of arrest of accused nos.2 to 4, it was noticed
by the Investigating Officer that there were injuries on their person.
Therefore, they were referred to Rural Hospital, Bhidi, Tal. Deoli,
Dist. Wardha, by giving requisition (Exhs.374 to 376). Exh. 374 is in
respect of accused Ashish, Exh.375 is in respect of Nitin, whereas
Exh.376 is in respect of accused Pramod. They were examined at
Rural Hospital, by Dr. Amruta Ladke (PW28). Her evidence would
show that on 10.10.2013 when she was discharging her duties at
Rural Hospital, Bhidi, during her duty hours, police brought three
accused for their pre-arrest medical examination along with
requisitions. Her evidence would show that on examination of
60 APEAL397.16+1.odt
accused Ashish, she found incisional wound on left little finger. It
was brownish in colour and mentioned the age of injury as eight days
old. Her evidence would show that this injury was possible because
of sharp object. Accordingly, on requisition (Exh.374) itself she
gave her MLC report.
Similarly, when she examined accused Nitin, she found
incisional wound on right palm near thumb. It was brownish in
colour and therefore, she mentioned the age of the injury as eight
days old. She also noticed abrasion on left palm. On abrasion, there
was scar formation. Therefore, she mentioned that this injury was
also eight days old and according to her these injuries are possible
because of sharp object. According to her, abrasion is possible at the
time of scuffle. She gave medical examination report of Nitin below
requisition (Exh.375).
Similarly, when she examined accused no.2 Pramod, she
found that there were sutured wound (linear) on left hand between
thumb and index finger. According to her, the injury was eight days
old and on the basis of the thread used for suturing, she opined that
the injury was eight days old. Accordingly, she mentioned her medi-
61 APEAL397.16+1.odt
cal observations in respect of accused Pramod below requisition
(Exh.376).
80. On 14.10.2013, these three accused persons were
medically examined by PW11 Dr. Pawan Wankhade at Kasturba
Hospital, Sewagram. His evidence would show that on examination
of accused Pramod, he noticed following injuries on his person :
(i) Stitched wound was present over the thenar
eminence of hand having three black coloured non
dissolving intact stitches, wound was oblique in di-
rection, in healing stage, dried blood stains were
present over the surrounded skin.
(ii) Incised injury was present on the thenar emi-
nence on left palm majoring 1 cm. x 2 mm.
Oblique in direction having sharp margin, reddish
brown in colour and in healing stage.
(iii) Stitched wound was present over the left
thenar eminence at the base of the thumb measur-
ing 1.5 cm. in length and having one black coloured
intact stitch. Swelling, pain and tenderness was
present over the surrounding area. These injuries
are possible due to sharp cutting object. The age of
injury was approximately 15 days. I have collected
the blood sample. .."
Accordingly, he proved his report (Exh.168).
Similarly, on the same day, he examined accused Nitin to notice the
following injuries on his person :
(i) Incised injury was present over the right thenar
eminence of palm measuring 2.5 cm. x 3 mm.
62 APEAL397.16+1.odt
Oblique direction having sharp margin, reddish
brown in colour and in healing stage, skin deep,
blackish tissue is seen in gaping and vertical in di-
rection.
(ii) Incised injury in healing stage was present over
the web right thenar eminence of hand in between
the index finger and thumb in continuation with in-
jury no.1 of size 1.5 cm. X 1 mm. skin deep with
cleancut margin.
(iii) Incised injury over the thenar eminence of left
hand of size 1.5 cm. X 1 mm. Horizontal in direc-
tion. Swelling pain and tenderness was present over
the surrounding area. These injuries are possible
due to sharp cutting object. The age of injury was
approximately 15 days. I have collected the blood
sample. ...."
He proved his medical report (Exh.169),
Also on the said day, he examined accused Ashish and on his medical
examination, he noticed following injuries on his person :
(i) Incised wound was present over the dorsum of
left little finger of hand in between second and third
phalanges measuring of size 1 cm. x 2 mm. Skin
deep, tapering at both ends, in healing stage, mar-
gin are clean cuts, horizontal in direction. This in-
jury is possible due to sharp cutting object. The age
of injury was approximately 15 days. I have col-
lected the blood sample. ...."
He proved medical certificate (Exh.170).
81. The proved documents (Exhs.168 to 170) show that the
cause for having said injuries was a sharp cutting object. Though the
63 APEAL397.16+1.odt
Dr. Wankhade (PW11) found that all these injuries were simple in
nature, also as per Dr. Wankhade, age of the injuries found on these
three persons was within 15 days.
82. The prosecution has also examined Dr. Prashant Tidke
(PW7) during trial. Before identifying in his substantive evidence
accused no.1 Monika and accused No.2 Pramod, the test
identification parade was held at Wardha Prison on 05.12.2013. In
the said test identification parade, he identified accused no.1 Monika
and accused no.2 Pramod as the persons, who had visited his
dispensary. To show his presence on 05.12.2013 in Wardha Prison,
the prosecution has proved the document (Exh.137). In this case,
Naib Tahsildar, who conducted the test identification parade is not
examined and panch witness PW29 Madhukar Khadse has turned
hostile, though during cross-examination from the learned Additional
Public Prosecutor, he has supported the event of test identification
parade.
83. In our view, nothing turns on that as, it is a trite law that
identification in the test identification parade is not the substantive
64 APEAL397.16+1.odt
piece of evidence. The substantive piece of evidence in respect of the
identification is the identification of the accused by the concerned
witness from the witness box before the Court. In this case,
identification of accused no.1 Monika and accused no.2 Pramod was
done by Dr. Prashant Tidke (PW7) from witness box. In our view
that is the substantive piece of evidence.
84. Evidence of PW7 Dr. Tidke would show that he is the
medical practitioner, having his dispensary at Hingna Road, Nagpur.
His hospital is named as "Jeevandhara Hospital" and the working
hours of his hospital are 8.00 to 9.00 am and 6.00 to 9.00 pm. His
hospital maintains OPD register and in that OPD register record of
name of the patient and other details are mentioned. His evidence
would show that on 01.10.2013 at about 6.30 pm when he was
present in his hospital, one person came having injury on left space
of thumb and along with him one lady was also there. PW7 Dr.
Tidke's evidence shows that blood was oozing from the thumb of that
person. Therefore, he applied stitches on the injury. On enquiry
being made about the injury, Doctor states from witness box that said
person informed him that he had suffered injury while repairing car.
65 APEAL397.16+1.odt
Evidence of Dr. Tidke shows that he prescribed medicine and
thereafter they left the hospital. Thereafter, when he was called to
identify the person if present in the Court hall, on that, Dr. Tidke
identified the first person from left side standing in the row of the
accused persons and the lady accused. On asking name of identified
person, Dr. Tidke told his name as accused Pramod, is the noting
made by the learned Judge while recording evidence of Dr. Tidke.
He was shown photo copy of his OPD register where name of
accused Pramod is shown at Serial No.7. He also mentioned cell
number as provided by accused Pramod. Since, it was a photo copy,
it was marked as 'Article-A', however at the same time Dr. Tidke states
that he can produce the original register if called for. It shows that
while giving witness summons to this Doctor, there was lapse on the
part of the prosecution in not requesting him to produce the original
OPD register. Evidence of Dr. Tidke would show that if asked, he
could have produced the same. It shows that before hand if it was
requested, he could have produced the same. Therefore, for fault of
the prosecuting machinery, the truthfulness of 'Article-A' cannot be
doubted.
66 APEAL397.16+1.odt
85. According to the learned senior Advocate, Dr. Tidke
(PW7), who examined accused Pramod, as per the prosecution on
01.10.2013 found only one injury and it was sutured by him.
Similarly, when he was examined by Dr. Amruta (PW28) on
10.10.2013, she also noticed a sutured wound on left hand.
However, according to the learned senior Advocate, when Pramod
was examined at Kasturba Hospital, Sewagram on 14.10.2013, the
Doctor noticed three injuries. The learned senior Advocate,
therefore, submitted that on 01.10.2013, it was not the Pramod
along with Monika, who visited the hospital of Dr. Tidke.
86. When Dr. Tidke examined accused Pramod on
01.10.2013, he found blood oozing injury. That was the only
concern for Dr. Tidke at that time. He, therefore, immediately
sutured the said wound to stop the blood. Further, when Pramod was
examined on 10.10.2013 at Bhidi by Dr. Amruta, she also noticed a
sutured wound on the left palm of Pramod, whereas according to
Exh.168, there were three injuries. Important to note that all these
three injuries were on left palm only. Dr. Tidke was concerned only
in respect of the blood oozing from a particular wound. Therefore,
67 APEAL397.16+1.odt
he must have paid attention only to that wound and probably, that
must be the reason for not noticing the other wounds. Insofar as
examination by Dr. Amruta is concerned, it appears that when she
was giving evidence, she stated her occupation as DNB student. Her
evidence was recorded on 17.12.2015 and she examined Pramod on
10.10.2013. Thus, it appears to the Court that she was not that
experienced Doctor as compared to Dr. Wankhede (PW11), who
examined Pramod at Kasturba Hospital, Sewagram, a very renowned
hospital having all ultra modern equipments. In our view, evidence
of Dr. Prashant that he identified accused no.1 Monika and accused
no.2 Pramod in the test identification parade on 05.12.2013 and
their identification by him from witness box on 11.11.2014, which is
a substantive piece of evidence, cannot be discarded as a person who
attended his hospital on 01.10.2013. Dr. Tidke is practicing in
Hingna area of Nagpur. Accused Pramod is resident of Yavatmal.
There is nothing on record to show that there was any reason for Dr.
Tidke to depose against accused no.1 Monika and accused no.2
Pramod. In our view, Dr. Tidke is witness to the truth and he being a
medical professional he applied stitches to stop oozing of blood. He
deposed to that effect from the witness box.
68 APEAL397.16+1.odt
87. As we have seen in the earlier part of this judgment, as
per the evidence of Dr. Pawan Wankhade (PW11), on 28.10.2013,
two knifes were received in his hospital in sealed condition for
examination and opinion in respect of the injuries on the person of
deceased Manoj.
Similarly, on the said date, letters Exhs.171 to 174 were
received by his hospital from the Investigating officer raising queries
as to whether the injuries on the person of the accused can be caused
by the said weapon and according to the opinion of Dr. Wankhade,
for accused Pramod in Exh.175, for accused Nitin in Exh.176 and for
accused Ashish in Exh.177, the injuries found on their person can be
caused by those weapons.
88. We have already determined the date of death resulted
due to murder of Manoj as 01.10.2013. As per the opinion of the
Doctor, death had occurred before 96 hours of 05.10.2013. As such,
96 hours before 05.10.2013 comes to approximately in the noon
hours of 01.10.2013. According to the opinion of Dr. Wankhade
(PW11), as mentioned in Exhs.168 to 170, the cause for the injuries
noticed on the person of the accused persons were due to sharp
69 APEAL397.16+1.odt
object. Accused nos.3 and 4 did not offer any explanation about
their injuries, whereas according to accused Pramod, he received the
injuries while repairing car. Medical expert Dr. Pawan Wankhade
(PW11), who is M.D. (Forensic) and who was attached to Kasturba
Hospital, Sewagram since 2019 and who has conducted more than
400 post mortems, shows that he is a very experienced Doctor.
According to his opinion, the injuries found on the person of accused
Pramod were due to sharp object. In the light of that, we have no
hesitation in our mind to reject the explanation offered by accused
Pramod in respect of his injuries.
89. Exhs.374 to 376, medical reports dated 10.10.2013 of
Dr. Amruta would show that the injuries were eight days old,
whereas Exhs.168 to 170, injury reports given by Dr. Wankhede on
14.10.2013 show that age of the injury was within 15 days old.
Thus, those injuries are in proximate time of murder of Manoj.
According to the prosecution, two weapons namely long knife, which
were recovered at the behest of accused persons, were used for
murdering. Thus, it is clear that they handled the sharp cutting
object resulting in causing injuries on their palm only. In our view,
70 APEAL397.16+1.odt
the injuries on the hands of these accused persons caused to them in
the proximity time of murder of Manoj, is one of the most
incriminating circumstance and is a coupling in a chain of events
against them.
RECOVERIES
90. Another coupling to complete chain of circumstances
against the accused persons is the other recoveries such as blood
stained clothes, weapons recovered at the instance of accused
persons together with cash from their person so also recovery of cell
phone of deceased Manoj and broken sim card of deceased Manoj at
the behest of accused Nitin.
91. In this case, all the recoveries are proved by panch
witnesses PW17 Vijay Deonade and PW18 Sachin Bire. These two
witnesses have fully supported the prosecution. According to the
learned senior Advocate, all the recoveries duly proved by PW17
Vijay and PW18 Sachin loses its importance because the Investigating
Officer has done all the recoveries in their presence and that shows,
71 APEAL397.16+1.odt
according to him, that they were interested witnesses. According to
the learned senior Advocate, PW17 Vijay was a Police Patil of village
Bhidi, whereas PW18 Sachin Bire, at that time was the President of
Dispute Resolution Committee of his village. He submitted that
obviously these two witnesses were under the thumb of the police
and precisely for that, their evidence loses its sanctity. We are afraid
that such a submission can be accepted.
92. It is not the law that for different recoveries and for
seizing different articles at different point of time during the course
of investigation, the Investigating Officer is bound to do those
seizures in the presence of different panchas. Therefore, if only
PW17 Vijay and PW18 Sachin had acted as panchas for all the
recoveries and seizures, no exception can be taken. Further, it is not
the case that just for asking, they accompanied the Investigating
Officer. We have noticed that on every occasion summonses were
issued to them to act as panchas and in obedience of said summonses
as a dutiful citizen, they acted as panchas. If that be so, merely
because they obeyed the rule of law and discharged their duties as a
dutiful citizen, their evidence does not lose sanctity as tried to be
72 APEAL397.16+1.odt
argued by the learned senior Advocate. It is the experience of this
Court while discharging the duties as Appellate Court that panch
witnesses turn hostile just for drop of hat. Therefore, if the
Investigating Officer had summoned these two respectable persons to
act as panchas, who have supported the prosecution in its entirety,
fullest weightage has to be given to their respective evidence in
respect of the acts and events those occurred in their presence and
which were noted down in contemporaneous documents.
93. After recording of memorandum statement under
Section 27 of the Evidence Act of accused Nitin, he led police party to
his house situated near Bhagyoday Society, Wadgaon. He went
inside his house and from a plastic container, he took out a mobile
handset of Nokia company. But it was not having any sim card and
was having IMEI No. 355721/02/484578/8. It was proved to be the
handset of deceased Manoj. The place from where it was took out
was within the special knowledge of Nitin. Similarly, cell phone
without sim card has its own relevance, especially when it was
proved to be of deceased Manoj. Thereafter, accused Nitin took the
police party to Shivaji garden and behind the said garden in a 'nali',
73 APEAL397.16+1.odt
after search two broken pieces of sim card were recovered. Said
contemporaneous document is at Exh.232. The contemporaneous
document shows that when the broken pieces of sim card were taken
in possession from the spot, it was found that it was of 'Vodafone'
company.
94. Similarly, at the behest of accused Pramod, after
recording his memorandum statement, his clothes as well as rear seat
cover of Indigo car were seized from his own house. The
panchanama is at Exh. 231. At the behest of accused Ashish, on his
memorandum statement when he was taken to village Kalgaon, he
from an agricultural field near a Mango tree, took out two knives
wrapped in newspaper having blood stains after the place was dug
out in his presence. The panchanama to that effect is at Exh.225.
Similarly, his clothes were also seized. Thereafter, he shown the
place near Jagruti Parking park, at Chhatrapati square, Wardha road
where Activa vehicle was parked, which was belonging to the
deceased. At the time of seizure itself, every article was sealed on
the spot itself. The contemporaneous document coupled with the
evidence of the Investigating Officer, corroborated by the
74 APEAL397.16+1.odt
independent witnesses, show that sealing was done and the articles
were kept in sealed position.
95. The prosecution has also examined PW15 Santosh
Dhumne. At the relevant time, this prosecution witness was attached
to Police Station, Deoli as Head Moharir. Being Head Moharir, it was
his duty to receive the articles, maintain property, keep its record and
send to CA office Nagpur for Police Station, Deoli. His evidence
would show that on 05.08.2013, eight articles were received in A.D.
No. 56/2013, which were in respect of deceased Manoj. His
evidence further shows that from 11.10.2013 to 24.10.2013 various
articles were deposited in the Police Station in Crime No. 149/2013
pertaining to murder of Manoj. His evidence would show that on
06.11.2013 those articles were sent to Chemical Analyser as per the
requisition in sealed condition. His evidence would show that those
articles were taken in police station and were kept in sealed
condition till sent to C.A. The extract of register is at Exh.202. His
evidence is challenged on the ground that when the articles were
deposited, entry was not taken in the Station Diary. In our view, it
hardly matters qua evaluation of evidence of this prosecution witness
75 APEAL397.16+1.odt
because it was not his duty to maintain station diary. The learned
senior Advocate submitted that in the cross-examination, he has
admitted that some articles were not in sealed condition.
96. We have already seen all the contemporaneous
documents, which specifically mentions sealing on the spot itself.
Not only that, the aspect of sealing is duly proved by the
Investigating Officer and corroborated by the panch witnesses. It is
the duty of the Court to evaluate the evidence brought on record in
its entirety. In that view of the mater and in the light of the
consistent evidence, both documentary as well as oral about sealing,
we are not ready to give much importance to the stray statement
made by this prosecution witness during his cross-examination.
97. The learned senior Advocate submitted that in Entry
No.90 of Exh.202, name of the person who had deposited those
articles is not mentioned. Exh.202 shows that it is a printed form
tabular in nature. The said printed form does not show that name of
the person who deposited in Malkhana is to be mentioned.
76 APEAL397.16+1.odt
Therefore, it appears that said submission of the learned senior
Advocate is just out of cough.
98. Evidence of PW15 Santosh Dhumne, a person
responsible being Head Moharir of Police Station, Deoli shows that
right from the day when the articles were deposited in Malkhana till
those were sent to Chemical Analyser, were in sealed condition. No
circumstance is brought on record during his cross-examination to
suggest that when those articles were in his exclusive possession,
there was any opportunity to anybody including the Investigating
Officer to tamper with the same.
99. Though, the learned senior Advocate has relied upon
various decisions on the point of non-sealing of the articles, in view
of our specific finding that all the seized articles were sealed properly
on the spot itself and there is documentary as well as oral evidence
in that behalf, in order to avoid bulkiness of the judgment, we are
not discussing the judgments cited by the learned senior Advocate in
respect of the fact of non-sealing of the articles.
77 APEAL397.16+1.odt
100. Prosecution has also examined Pramod Dudhankar
(PW23), a Head Constable. On 22.11.2013, he was attached to
Police Station, Deoli. On the said day, he received duty pass for
taking property in Crime No. 149/2013 to the Chemical Analyser's
office, Nagpur. The duty pass was given to him by the Investigating
Officer API Dhananjay Sayre (PW25). This witness proves the Duty
Pass, which is at Exh.281. His evidence shows that he received two
articles in sealed condition along with covering letter (Exh.282) to
the Chemical Analyser. Perusal of the same would show that under
the said letter, two weapons were sent to the Chemical Analyser. As
per his evidence, he submitted those articles in sealed condition to
the Chemical Analyser, Nagpur, who issued invoice challan to him
(Exh.283). It shows that on 22.11.2013 itself, the CA office received
two sealed packets. Evidence of this prosecution witness shows that
CA receives only those properties which are sealed. Similarly, on
07.11.2013, the Investigating Officer issued letter to CA office,
Nagpur and sent the same through PW13 Vijay Dhawle, PHC. His
evidence would show that on 07.11.2013, he took 18 seized articles
in sealed condition to the CA office. The requisition to CA office is at
Exh.193. The duty pass given to him for the said is at Exh.194. He
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also gave his compliance report to the Investigating Officer for the
same.
101. C.A. report (Exh. 343) pertains to the clothes of the
deceased, clothes of accused persons and seat cover, shoe, socks, bed
sheet, carpet etc., whereas C.A. report (Exh. 349) pertains to two big
knives.
102. C.A. Report (Exh.345) shows that group of the
deceased's blood was determined as "B". Similarly, blood group of
accused Pramod was determined as "B" (Exh.346), blood group of
accused Nitin was determined as "AB" (Exh.347) and blood group of
accused Ashish was determined as "B" (Exh.348).
103. C.A. report (Exh.349) pertains to two knives, which
shows that those were received on 22.11.2013 in C.A. office in sealed
condition. After examination, both were found to be stained with
human blood and its group was determined as "B". Thus, it is clear
that the weapons which were used in commission of murder were
stained with not only human blood, but its group was determined
that it was deceased's blood.
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104. Item Nos. 14 and 15 in C.A. report (Exh. 343) were the
velvet seat cover. We have already seen that the said seat cover was
of rear seat of Indigo car and at the time of arrest and seizure of the
vehicle, accused Pramod was driving the vehicle. Said item nos.14
and 15 were found to be stained with human blood i.e. "B" group.
Therefore, there is no difficulty in reaching to the conclusion that
before throwing away the dead body of Manoj, he was taken in that
vehicle and was repeatedly stabbed inside the vehicle.
Similarly, on the full pant of accused Ashish, blood
having group "B" was found. The bed sheet which was seized from
the spot was also having stains of blood of group "B".
105. Thus, the scientific evidence also shows the finger of
guilt towards accused persons, which confirms presence of three
accused persons along the side of deceased when he was done to
death by them.
MISLEADING INFORMATION BY ACCUSED MONIKA
106. The prosecution has examined Gopal Rathod (PW10).
This witness is resident of village Bramhanwada since birth, where
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mother of the deceased resides. The deceased and this witness were
knowing each other since their childhood. According to this witness,
whenever mother of the deceased remains ill, the deceased used to
visit Bramhanwada. Evidence of this witness shows that in
September-2013, the deceased had been to village Bramhanwada
and he accompanied deceased to take his mother to the hospital at
Ner. This witnesses claims that deceased provided his cell phone
number to him. His evidence would show that on 23.09.2013, when
deceased was going to Nagpur, he had been with him at bus stop.
107. According to the evidence of this prosecution witness,
on 04.10.2013 at about 7.30 p.m., he heard rumour in the village
that dead body of Manoj was found within the jurisdiction of Police
Station, Deoli. Therefore, he made a phone on the mobile number
which was provided by the deceased to him. His evidence would
show that he could not get the response.
108. According to PW10 Gopal, on 05.10.2013, he received a
call from the phone number of deceased Manoj at 7.30 a.m. and the
caller made enquiry with him as to who is talking. Therefor, he
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disclosed his name. He also enquired who is talking with him. On
that, the caller replied the name as wife of deceased Manoj.
According to the evidence of this witness, she enquired with him as
to for what purpose he rang earlier. On this, Gopal stated that since
there was discussion in the village about the accident of Manoj,
therefore he made a phone call. As per the evidence of Gopal, on
that, wife of deceased informed him that her husband Manoj had
gone to Delhi for official work and said was informed to him
repeatedly. In the cross-examination of this witness, no damage is
made to his evidence except the fact that it was brought on record
that he came to Court along with PW4 Padma. Thus, it is clear that
accused no.1 Monika furnished false information to this prosecution
witness that deceased Manoj had been to Delhi, knowing full well
that at no point of time during that period the deceased went to
Delhi.
110. On re-appreciation of the entire prosecution case,
following are the circumstances which are proved by the prosecution.
They are as under :-
1] Deceased Manoj met homicidal death.
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2] There were illicit relations in between accused no.1
Monika and accused no.2 Pramod.
3] They were having motive to kill Manoj.
4] On 03.10.2013, accused Monika withdrew cash amount
of Rs.1,14,000/- from State Bank of India after two days
of murder of Manoj.
5] In furtherance of their said object, accused nos.3 and 4
participated in furtherance of their common intention.
6] All the accused persons were found to be in touch with
each other.
7] Location of accused Monika is shown within Kalamb
area, where Manoj was done to death.
8] Accused Monika and accused Pramod had been to the
hospital of Dr. Prashant Tidke on 01.10.2013 for
treatment on the hand of accused Pramod.
9] Similarly, stains of deceased Manoj's blood were found
on the piece of seat cover seized during the
investigation.
10] Rs.51,000/- were seized from accused Pramod for which
there is no explanation. Similarly, the cash amounts
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were seized from the person of accused Nitin and
accused Ashish, for which there is no explanation.
11] Cell phone and broken sim card of deceased Manoj
were seized at the instance of accused Nitin.
12] Weapons were seized from the place exclusively within
the know of accused Ashish, which were found to be
blood stained with deceased's blood.
13] On 05.10.2013, accused no.1 Monika had a talk with
PW10 Gopal, where she falsely stated to him that
deceased was at Delhi.
CONCLUSION
111. The aforesaid circumstances clearly establish that the
prosecution has proved the guilt of the all accused/appellants and
the circumstances are conclusive in nature to exclude every
hypothesis but one proposed to be proved. The chain of
circumstances is absolutely complete. Thus, we have no hesitation in
confirming the judgment of conviction and order of sentence passed
by the learned Additional Sessions Judge, Wardha.
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ORDER
1. Criminal Appeal No. 397/2016 and Criminal Appeal
No. 426/2016 are dismissed.
2. The judgment and order of conviction passed by the
learned Additional Sessions Judge, Wardha on
27.09.2016 in Sessions Case No. 11/2014 convicting
the appellants for the offence punishable under
Sections 302, 364 and 201 read with Section 34 of the
Indian Penal Code, is hereby confirmed.
3. All the appellants are in jail from the date of their arrest.
They should undergo the sentence imposed upon them.
JUDGE JUDGE
Diwale
