Bombay High Court
Victor @ Vicky Julias Manthero vs The State Of Maharashtra on 8 June, 2022
Bench: Prasanna B. Varale, N. R. Borkar
J-cr-Apeal-668-10.doc
Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
DINESH
DINESH SADANAND
SADANAND SHERLA
SHERLA Date:
CRIMINAL APPELLATE JURISDICTION
2022.06.08
17:14:59
+0500
CRIMINAL APPEAL NO. 668 OF 2010
Victor @ Vicky Julias Manthero
Age -26 yrs. Occ. Nil,
R/o. Jesainta House, near Dena Bank,
Malol Maroshi Road, Andheri (E), Mumbai.
(presently in Yerwada Central Jail) ..Appellant
Vs.
State of Maharashtra
(Through Ofcer in-charge
Hinjwadi Police Station,Pune) ..Respondent
WITH
CRIMINAL APPLICATION NO. 121 OF 2016
IN
CRIMINAL APPEAL NO. 668 OF 2010
Vicky @ Victor Julias Manthera ..Applicant
vs.
State of Maharashtra ..Respondent
AND
CRIMINAL APPLICATION NO. 392 OF 2016
IN
CRIMINAL APPEAL NO. 668 OF 2010
Sapana Vikram Potdar ..Applicant
In the matter between
Vicky @ Victor Julias Manthera ..Appellant
vs.
State of Maharashtra ..Respondent
-------
Mr. Shantanu Phanse, Appointed Advocate for the Appellant in
Appeal No. 668 of 2010 and Application No.392 of 2016 and
for the Applicant in Application No. 121 of 2016.
Mr. Balwant V. Salunkhe i/b Mr. Santosh Musale for the
Applicant in Criminal Application No. 392 of 2016
Mrs. Geeta Mulekar, APP for the Respondent - State .
-------
CORAM : PRASANNA B. VARALE &
N.R.BORKAR, JJ.
RESERVED ON : 24.08.2021.
PRONOUNCED ON : 08.06.2022.
Dinesh Sherla
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J-cr-Apeal-668-10.doc
JUDGMENT (PER: N.R. BORKAR, J.)
1] This appeal takes an exception to the judgment and
order dated 16.08.2010 passed by the Sessions Judge, Pune in
Sessions Case No. 37 of 2007.
2] The appellant, who was the accused before the trial
Court, was tried for the ofences punishable under sections
342, 363, 328, 394, 302 and 201 read with 34 of the Indian
Penal Code, 1860 (for short "IPC"). By the impugned judgment
and order, the trial Court convicted :
a] Accused for the ofence punishable under sections
342, 363 and 394 of the IPC and sentenced him to sufer
rigorous imprisonment for six months, two years and
seven years respectively;
b] He is further convicted for the ofence punishable
under section 328 of the IPC and sentenced to sufer
rigorous imprisonment for two years; and
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c] Accused is further convicted for the ofence
punishable under sections 302 and 201 of the IPC and
sentenced to sufer life imprisonment and three months
respectively;
3] It is the case of the prosecution that the deceased Vikram
Vijay Potdar, who was resident of Mumbai, was working as
Software Engineer with Infosys Company at Pune. On every
Friday evening, he used to come to Mumbai and used to return
back to Pune on following Monday.
4] According to the prosecution, as usual on 14.03.2006, he
made phone call to his wife Sapana Potdar (PW-23) and
informed her that he left Pune to come to Mumbai. He did not
reach home within expected time. PW-23 Sapana therefore,
tried to contact him on his mobile phone. However, the phone
was out of coverage area. PW-23 Sapana therefore, informed
this fact to her father PW-3 Arun Shrof. Thereafter, they took
search of the deceased. As the deceased was not found, on the
next day, i.e., 15.03.2006, PW-3 Arun lodged the Missing
Report with Hinjwadi Police Station.
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5] According to the prosecution, on the same day, i.e.,
15.03.2006, in the afternoon PW-23 Sapana received
information about use of Debit and Credit Cards of the
deceased. She therefore, informed this fact to PW-3 Arun, who
in turn informed the same to Hinjwadi Police Station. On
enquiry by PW-25 Masaji G. Kale, who was then working as PSI
with Hinjwadi Police Station, it was found that purchases were
made using Credit and Debit Cards of the deceased from
Centre-One Mall, New Mumbai. According to the prosecution,
the Credit/Debit Card was also used for purchasing Trump
recharge coupons, that is the coupon used for recharging
mobile phone of M.T.N.L. On enquiry, it was found that with the
said recharge coupon, mobile phone No.9869331437 was
recharged. PW-25 Kale made enquiry about the name of
subscriber of the said mobile phone with M.T.N.L. and he was
told the name of the subscriber as Kevin John Dais, resident of
Dena Bank Lane, Marol Village, Andheri (E).
6] Pursuant to said information, PW-25 Kale along with
panch witnesses and PW-3 Arun Shrof visited the house of
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Kevin Dias. The mother of Kevin was present in the house.
During search of the house, various articles including empty
boxes of mobile phones of Nokia model, one brand new
Microwave Oven and some articles from Food Bazaar were
found. According to the prosecution, the Credit Card and Debit
Card standing in the joint name of deceased and PW-23
Sapana were also found on the T.V. set in the house. According
to the prosecution, on enquiry with the mother of Kevin, it was
found that said articles were brought by the present appellant/
accused who is brother of Kevin.
7] According to the prosecution, the mother of accused
further disclosed to the police that all the aforesaid articles
were brought in Tata Indica Car, which was parked outside the
house. The Car was searched and during search a plastic
container containing pink colour powder was found.
8] According to the prosecution, while the search was going
on, the mother of present appellant/accused received a phone
call. The said phone call was of present appellant/accused.
PW-25 Kale took mobile phone from mother of accused and
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made enquiry with the present appellant/accused about the
deceased. In response to it, the present appellant/accused
disclosed to him that on 14.03.2006 he had dropped the
deceased near Pen.
9] According to the prosecution, pursuant to the said
information search for the deceased was taken in the area
disclosed by the appellant/accused and ultimately, the dead
body of deceased was found near village Jitegaon by the side
of road.
10] Report thereafter was lodged with Hinjwadi Police
Station. On the basis of said report, crime vide crime No. 48 of
2006 was registered for the ofence punishable under sections
302, 363, 342, 387, read with 34 of the IPC.
11] According to prosecution, in the month of February, 2006,
the present appellant/accused, who is Driver by profession,
had taken a Tata Indica Car, i.e., tourist vehicle, bearing
registration No. MH-04/E-6072 from Tejinder Singh Sandhu
(PW-17) to ply the said car on hire. The present
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appellant/accused with his brother Kevin, who during the
course of investigation was found to be juvenile, used to ply
the said Car on hire between Pune and Mumbai. They used to
pick the passengers on Highway with a promise to take them
to Mumbai or Pune. According to the prosecution, on the way
they used to ofer sedative mixed drinks to the passengers and
when the passengers used to be under the infuence of said
sedatives, they used to rob them of their valuables and then
used to throw them out of their car.
12] According to prosecution, the present appellant/accused
sometime before the present incident, procured 60 tablets of
Ativan (a tranquilliser) from Chemist, viz., Silver Chemist
situated in the vicinity of his house. According to the
prosecution on 14.03.2006 at about 16:30 hrs, the present
appellant/accused along with Kevin (Juvenile) picked up the
deceased from Wakad, Pune and on the way to Mumbai, they
ofered him Cold-drink by adding sedative drug viz. Ativan.
According to the prosecution, while the deceased was under
the infuence of sedative, the present appellant/accused and
his brother Kevin robbed him of Credit Card and Debit Cards
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and other valuables and then threw him out of their car near
Village Jitgaon, Taluka Pen, District Raigad. It is alleged that the
deceased died due to cardio respiratory arrest due to
Lorazepam poisoning.
13] The trial Court while convicting the present
appellant/accused recorded the following fndings:
"58) In view of this material, it has been proved
beyond reasonable doubt that the deceased met with
homicidal death on Pune-Mumbai Road due to
poisoning by tranquilliser Lorazepam on 14th March,
2006. On the very same date, accused No.1 - Vicky
told his tourist car controller-Tejindersingh that he
would go on Mumbai-Pune, Pune - Mumbai trip. The
powder of the said tablet was found in the Tata Indica
car, which was in control and custody of accused No.1-
Vicky. Immediately after the incident of missing of the
deceased, the accused was found purchasing various
costly items in Centre-One Mall and in the nearby area
through the I.C.I.C.I. Bank credit card of the deceased.
The said card was found on the T.V. set in his house.
He has a made a statement leading to the recovery of
the gold ingot and the gold pendent, which was
identifed by the wife and father-in-law of the
deceased. Further, he had absconded from the State of
Maharashtra and was arrested in Rajasthan.
59) All these circumstances on record are proved
beyond reasonable doubt. They form a complete chain
which leads to the only hypothesis that accused No.1
Vicky, with some participation from his younger
brother - juvenile Kevin, has committed the ofences.
Hence, point Nos.2, 3 and 4 are answered in the
afrmative."
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J-cr-Apeal-668-10.doc
14] After this appeal was listed for hearing, it was informed
to this Court that the present appellant/accused was enlarged
on parole leave on 25.10.2011 and since then he is
absconding. Considering this fact, we appointed Advocate Mr.
Shantanu Phanse to represent the appellant.
15] We have heard the learned appointed advocate for the
appellant/ accused and learned APP for the respondent -State.
16] The Learned Counsel for the appellant/accused submits
that according to the prosecution on the day of incident, the
deceased had travelled in the car of the appellant/accused,
however, there is no evidence on record to that efect, though
it was possible for the prosecution to collect CCTV footage
from Toll Collection Centres. It is further submitted that
according to the prosecution, the credit/debit cards of the
deceased were used to purchase mobile recharge coupons
and other articles from Central-1 Mall, Navi Mumbai. It is
submitted that PW-7 Ganesh Krishna Swami from whose shop
alleged mobile recharge coupons were purchased has
admitted that at the relevant time there were CCTV cameras in
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the Central-1 Mall, Navi Mumbai. It is submitted that
Prosecution has, however, not collected the CCTV footage from
the said Central-1 Mall. It is submitted that there are lot of
discrepancies in the evidence of panch-witness on alleged
seizure of credit/debit cards and therefore the trial court ought
not to have relied upon his evidence. It is submitted that the
Trial Court has rightly discarded the evidence in relation to test
identifcation parade. It is submitted that considering over all
facts and circumstances, the trial court was not justifed in
convicting the appellant/accused for alleged ofence.
17] On the other hand, the Learned APP submits that
credit/debit card of the deceased were found at the house of
the present appellant/accused. It is submitted that deceased
died due to Lorazepam poison, which was found in the car of
the present appellant/accused. It is submitted that
considering the overall evidence on record, the trial court was
justifed in convicting the accused.
18] The fact that the deceased was resident of Mumbai and
was working as Software Engineer with Infosis Company at
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Pune has not been challenged. According to PW-23 Sapana
Potdar, the wife of deceased, every Friday evening, the
deceased used to come to Mumbai and used to return back to
Pune on the following Monday morning. According to PW-23,
on 14th March, 2006, deceased called her on phone and told
her that he left Pune to come to Mumbai. After about 3 hours,
she rang up on the mobile phone of deceased but it was out of
coverage area. The deceased did not reach home. They took
search of the deceased, however he was not found. On the
next day morning, they lodged a missing report with Hinjwadi
Police Station.
19] PW-23 stated that on 15th March, 2006 she received
information about the use of credit/debit cards of the
deceased. She gave this information to her father (PW-3),
who in turn informed about it to Hinjwadi Police Station. PW-
23 has identifed credit/debit cards of the deceased, so also
gold pendent of Lord Balaji. In the cross-examination, there is
no serious challenge to the evidence of PW-23.
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20] According to prosecution, after receipt of information
about use of credit/debit cards of the deceased, enquiry was
made and it was found that credit/debit card was used for
purchasing Trump mobile phone recharge coupon and the said
recharge coupon was used for recharging the mobile phone of
the brother of the present appellant/accused, namely, Kevin.
Search was conducted at the house of the appellant/accused.
According to the prosecution, during the search, the
credit/debit cards of the deceased were found at the house of
the present appellant/accused. Similarly, plastic bag
containing Tranquiliser power was found from the car of the
appellant/accused. To prove the said facts, the prosecution has
examined PW-4 Amar Bahadur Singh, panch witness on the
said seizure.
21] According to PW-4, in his presence, the house of
appellant/accused was searched. During search of the house
of the accused in addition to other articles, the credit/debit
cards of the deceased were found. According to PW-4, one
Indica Car which was parked outside the house of accused was
also searched. According to him, one plastic bag containing
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pink colour powder was found in the car. PW-4 was cross-
examined at length. However, no material could be elicited in
the cross-examination to doubt the version of PW-4.
22] According to the prosecution, mobile recharge coupon
was purchased by using credit/debit card of the deceased and
the said recharge coupon was used for recharging the mobile
phone of brother of present appellant/accused. The
investigating ofcer has specifcally deposed all these facts.
There is evidence of shop owners about purchase of articles by
the accused by using credit/debit cards. The defence of the
accused is, however, only of false implication.
23] In addition to above, pink powder which was recovered
from the Indica Car was sent for chemical analysis. The C.A.
report is at Exhibit 59. Report shows that the said powder was
Tranquilliser Lorazepam. C.A. Report at Exhibit 60 shows that
same Lorazepam poison was found in the 'viscera' which was
sent for chemical analysis. Considering the overall evidence
on record, the prosecution case cannot be doubted only on the
ground of non-collection of CCTV footage. The trial court was
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therefore justifed in convicting the accused. No interference is
called for in the impugned Judgment and Order. In the result,
the following order is passed.
ORDER
1] Appeal is dismissed.
2] In view of dismissal of appeal, Criminal Application
No. 121 of 2016, which is for early hearing/release of
appellant on bail, does not survive and same is disposed
of.
3] Criminal Application No. 392 of 2016 for return of
properties is allowed in terms of prayer clause (a) and
accordingly, disposed of.
[N.R.BORKAR, J.] [PRASANNA B. VARALE, J.]
Dinesh Sherla
