TMI Blog2007 (3) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... murdered D-1 or A-2 played any role in assisting him to murder D-1. Even if we believe the evidence of P.W.-11 that he saw D-1 in the company of A- 1 walking towards the beach and thereafter saw A-1 returning alone after 30 to 45 minutes, there has been a time gap of about 2 hours when A-1 and D-1 were last seen together and when the dead body of D-1 was found at around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected. In the absence of any other supporting material on record, it will not be possible to believe the statement of P.W.-6 that he had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he had only a fleeting glance of male person who came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her of one of the deceased persons. Earlier, by the judgment delivered on 09-01- 2002, the Court of IInd Additional Sessions Judge, Panaji has acquitted both the accused persons of all the abovementioned charges levelled against them. 2. The relevant facts, as per the evidence adduced and the First Information Report, are that on 26-02-1999, the deceased couple, namely, Vikas Nanda (D-1, age 26 years) and Kavita Nanda @ Priya Nanda (D-2, age 23 years), arrived in Goa from Mumbai for their honeymoon and stayed in Hotel Seema at Ribandar. On 27-02-1999, the deceased couple went for sight-seeing at Ozran, Vagator with P.W.13-Vincent, who was the car driver and had also taken them for the sight-seeing trip a day earlier as well. At about 2.30 p.m., D-1 told P.W.-13 that they had met some friends from Delhi and hence P.W.-13 returned from there. P.W.30-Suhasini Govekar, who operated a shack at Anjuna beach with her husband, mentioned that on 27-02-1999, the accused couple and their children came to her place in between 1.00-2.00 p.m. and then went to take bath. When they returned back, the deceased couple accompanied them. The accused couple was running a bar and the restaurant Iguan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd lived in Mumbai, called up N. Murari, who was posted in Goa and worked in the Union Bank of India with P.W.-4, to know about their whereabouts on 01-03-1999. N. Murari told P.W.-4 that they had already checked out of the Hotel Seema. Since the deceased couple did not reach Mumbai as stipulated by P.W.-4 on 02-03-1999, he again called up N. Murari. On 03-03-1999 at about 7.15 p.m., N. Murari informed P.W.-4 that a dead body of male person with similar description to that of Vikas had been found and asked him to come to Goa. P.W.-4 rushed to Goa and identified the dead body of D-1-Vikas Nanda on 04-03-1999. On the same day, N. Murari lodged a missing report [Exhibit No. 20] at Old Goa Police Station. After identifying the body of D-1-Vikas Nanda at morgue, P.W.-4 went to Seema Guest House and made inquiries about the couple. The dead body of D-2 was also identified on 05-03-1999. P.W.-4 lodged a complaint [Exhibit No.21] on 05-03-1999 at Anjuna Police Station with P.W. 38- Sub-Inspector Sandesh Chodankar. According to this complaint, on 04-03-1999, P.W.-4 was informed by Hotel Manager that D-2 checked out from hotel on 27-03-1999 at about 11.40 p.m. and another person having short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccurred as a result of asphyxia due to drowning in shallow beach water. 5. From their initial investigation, the Goa police found out about the description of the accused couple and their children. The flat belonging to the accused persons was sealed under the orders of a Civil Court. P.W.-38, therefore, applied to the Judicial Magistrate, Ist Class, Margoa for issuance of search warrant. The Judicial Magistrate, Ist Class, Margoa directed that the bailiff of the Court would accompany P.W.-38 and in the presence of two respectable panchas from the locality, the seal of the court would be opened and inventory of the movable articles and fixtures found in the flat should be made. After the search, the flat should be resealed/locked and the bailiff would file a report to the Court. Accordingly on 17-12-1999, the police conducted search of the flat of accused, which was located at Sapna Residency, Colva. During this search, P.W.-38 attached the passports of the accused-respondents and their two children, two visiting cards of P.W. 19-Subrato Padhi, a visiting card of Iguana Restaurant and one laminated photograph. [House Search Panchnama as Exhibit No. 13 and Report regarding Search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Thakran allegedly disclosed [Exhibit No. 77] that she would point out the goldsmith to whom she had sold the gold ornaments. As per the directions of A-2-Anjali Thakran, a police party and panch witnesses reached the jewellery shop of P.W. 12-Ulhas Lotlikar at Khareband Margao. P.W.12-Ulhas Lotlikar produced two bangles bearing the identification mark 'RK 22 KL', weighing 23.5 grams. According to the prosecution case, the said bangles bearing the identification mark 'RK 22 KL' were gifted to the newly wed couple on their marriage by P.W.-33. The prosecution has alleged that A-2-Anjali Thakran sold these bangles along with a necklace and a ring to the jewellery shop run by P.W.-12. It has also been alleged by the prosecution that A-2- Anjali Thakran sold these jewellery on the pretext that as their restaurant was not running well, they were in urgent need of money. The learned Sessions Judge, Panaji, as well as the High Court on evaluation of the circumstantial evidence, came to the conclusion that the prosecution has failed to prove involvement of accused respondents in commission of the crime and acquitted them of all charges. 7. Admittedly, the case of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11-02- 2000 and recovery of two bangles belonging to D-2-Priya Nanda bearing the identification mark 'RK 22 KL' at the instance of A-2-Anjali Thakran from the jewellery shop of P.W.12-Ulhas Lotlikar on 13-02- 2000, further substantiate that the accused couple, in order to carve away the belongings of the newly married couple, committed the offence of murder. It has also been pointed out that the High Court and the lower court have erred in (i) rejecting the evidence regarding the recovery of incriminating materials and (ii) not appreciating the key prosecution witnesses. 8. On the other hand, late Shri R.K. Jain, the learned senior counsel for the respondents, urged that the present matter before us, is an appeal arising out of special leave petition under Article 136 of the Constitution against concurrent orders of acquittal by the Sessions Court and the High Court and, thus, merely because on reappraisal of the evidence, the other view of the matter than taken by the courts can be legitimately arrived at, would not be a sufficient ground to interfere with an order of acquittal, unless this Court reaches the conclusion that the entire approach of the courts below in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous. 11. Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225: 7. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with. In the light of the aforesaid principles laid down, we shall consider the evidence placed on record to find out whether the courts below have committed any error in dealing with the evidence, which can be said to be patently illegal, or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lot of clothes and jewellery of yellow metal, lot of belongings of shack, electronic items and household items in the flat. He has explained that he did not attach any valuable or other articles as he was not sure to whom those things belonged and also as there was a civil dispute pending in the court. 13. The panchnama of the search made on 17.12.1999 (Exhibit No.13) mentioned that after conducting the search, the door was closed and one old and two new locks were put on the door and they were sealed by a one-rupee coin as the court seal was not available. The court bailiff mentioned that he sealed three locks after the search was conducted by P.W.-38 on 17.12.1999. 14. After the arrest of A-1, this flat was once again searched on 11.2.2000 in the presence of another court bailiff Peter Fernandez and other panch witnesses as A1 allegedly confessed about the crime on 08.02.2000. According to the prosecution version, he agreed to handover the incriminating articles to the police. P.W.8- Sanjay Naik, a witness to the confession of A-1, was also present as panch witness when A-1 had allegedly handed over jewellery items, i.e., eight yellow metal bangles, one pair of ear-rings an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t interfering with the seal after removing the grill of the window. There was material contradiction in the panchnama of flat search made on 11.02.2000 and evidence of P.W.-8 and P.W.-38 with respect to the way in which the entry was made to the flat of the accused persons on 11.02.2000. When at the first instance no jewellery was found inside the flat, how it was recovered on the subsequent search? The search and recovery of articles by the police on 11.02.2000 does not inspire confidence as the flat was easily accessible, without disturbing the lock and planting of the articles by the police cannot totally be ruled out. We have carefully gone through the evidence of the witnesses and the panchnamas and list of seized articles and have found that reasoning adopted by the courts below in discarding the evidence of seizure of articles from the flat of the accused persons cannot be said to be without any basis. 15. On the information received by the police, the accused persons were arrested at Agra and at the time of arrest on 30.01.2000, as per the prosecution, certain incriminating articles were seized from the accused couple at Agra. The police recovered the ladies purse and sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold two bangles, a necklace and a gold finger ring. When he asked for the reason as to why she was selling these ornaments, A-2 told him that their restaurant was not running well and hence, they were in urgent need of money. He paid ₹ 12, 400/-, ₹ 3, 200/- and ₹ 1, 200/- respectively, for two bangles, a necklace and a gold finger ring. He did not melt the bangles since they were in good condition. As per the prosecution, these gold ornaments belonged to deceased Priya Nanda. During cross-examination, P.W.-12 volunteered to produce the book where he maintained the record of sale of these ornaments. However, inspite of ample opportunity given to him to produce the book, he did not do so. In his cross-examination, he admitted that a day before recovery, A-2 was shown to him in the office of Dy. Superintendent of Police, Mapusa. That apart, the police had not recovered the other ornaments alleged to have been sold by the accused to P.W.-12 as it is said that he had melted those ornaments. It is highly improbable that P.W.-12 would have retained the bangles, which have the distinctive mark over them and would have melted other ornaments with no distinctive marks on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as examined to prove the acquaintance of the accused persons with the deceased couple prior to the date of incident. As per P.W.-30, on 26.02.1999 the accused couple and their children came to her shack which was located at Anjuna Beach. A-1 approached P.W.-30 and told her that she was looking pretty and that he would give her work and would take her on ship and would give her whatever she wanted. He had also made enquiries whether the ornaments which she was wearing were real or artificial and that what was her bank balance. On 27.02.1999, the accused couple and their children came to her shack between 1 and 2 p.m. and went to take bath on the beach. When they returned from the beach, they were accompanied by a newly married couple. P.W.-30 had a talk with D-2-Priya Nanda, who was wearing the reddish-coloured bangles and, accordingly, she assumed that they were newly married couple. The newly married lady, who had come with the accused lady, changed her clothes and wore a blue-coloured skirt and blouse. After having lunch at her shack, the two couples and the children went away. About a month later, the police showed her two or three photographs and asked her to identify the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he himself had not seen A-2 and D-2 sitting in the room at Iguana Restaurant. This witness further proved the fact that till 9.30 p.m. on 27.02.1999, A-1 was seen in the company of D-1 when he left them at Iguana Restaurant. 22. P.W.11-Dinesh Adhikari, who was working as a domestic help in the bar and restaurant of Iguana Miraj and Lalita Beach Resort, deposed that the accused were running a hotel at Sernabhati Colva known as Iguana Miraj which was a bar and restaurant and they were also running a hotel besides the said restaurant and the name of that hotel was Lalita Beach Resort. He knew the accused persons right from the days he used to work for them in Haryana (Gurgaon) and thereafter he joined them in Goa. Some time in June 1999, the police had shown the photograph of a lady and a gent and asked him whether he could identify anyone of them. He told the police that he could identify the persons in the photograph. He identified the persons from the photographs and said that he had seen those persons 2 to 3 days prior to Holi of the year 1999 in the hotel of the accused. They came to the hotel at about 6.00 to 7.00 p.m. He saw that A-1, the gentleman in the photograph, and one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hotel and one lady with short hair was sitting on the rear seat. He noticed her for a minute or two. D-2 returned to the reception from her room within 15 minutes and A-1 was carrying the luggage. She settled the bill and thereafter left the hotel. In his cross-examination, this witness mentioned that when at reception counter D-2 was making the payment, he saw A-1 who passed along with the luggage putting his head down. In the Test Identification Parade on 07.02.2000, this witness identified A-1 as the person who came along with D-2 on 27.02.1999 when she checked out of the hotel and identified A-2 as the same lady who was sitting in the Maruti car on 27.02.1999. He stated that he did not find anything abnormal about the departure of D-2 and behaviour of D-2 at that time was normal. From the statement of this witness, it appears that he had merely a fleeting glance of A-2 sitting in the parked car and thus he had described her as the lady with a short hair. Although in the test identification parade conducted after more than 11 months he identified both the accused, but when the police recorded his statement on 07.03.1999 in Hotel Seema he had not given the description of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration. 26. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, it was observed that: 5. In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'last-seen' evidence, even if the version of PW 14 in this regard is believed. .. 26. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one in the hotel. According to the prosecution version, A-1 murdered D-1 by drowning him in the shallow beach water. However, it is highly improbable that A-1, who at the relevant time was in his late 30s, was able to overpower D-1 who was not only well-built but also about 10 years younger and taller than him. We have also noticed that when the dead body of D-1 was recovered, it had no clothes except an undergarment. It is highly unlikely that a single person not only forcefully drowned the deceased D-1 in the shallow beach water but also forced him to take out all the clothes and ornaments which he was wearing at that time. The post- mortem report also does not mention any serious injury on any of the vital parts of D-1 to support the prosecution version. It is clear from the deposition of P.W.-11 that A-1 went along with D-1. P.W.-14 has also stated that A-2 and D-2 were sitting inside a room of the hotel. From this evidence, it is clear that A-2 had no role whatsoever to play with reference to the murder of D-1-Vikas Nanda, especially when the prosecution has not been able to produce any material or evidence to establish the fact that they either pre-planned a plot or conspired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he had only a fleeting glance of male person who came with D-2 as he was busy in settling the account with her. That apart, the dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8 = hours when D-2 was last seen alive with the accused couple. There being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused. 29. It is urged by Mr. Mahendra Anand, the learned senior counsel for the appellant(s), that the accused have not explained as to in what circumstances the victims suffered the death in their statements under Section 313 Cr.P.C. and thus would be held to be liable for homicide. The learned senior counsel for the appellant( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case, the accused persons not giving any explanation in their examination under Section 313, Cr.P.C. could not be taken to be a circumstance pointing towards irresistible conclusion that they are involved in the commission of the crime. 31. In the light of the factors that evidence regarding the recovery of the incriminating materials from the accused persons has been discarded; that there has been sufficient time gap between the instances when the accused persons were last seen together with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain of circumstances to fasten the guilt on the accused couple, we are of the opinion that the accused have been rightly given the benefit of doubt by the courts below. We have found that the finding of the High Court that the chain of circumstances is not complete to conclusively establish that either A-1 or A-2 alone or with the common intention of each other have committed the dreadful crime of murder of newly married couple, is correct and merely suspicion, however grave, cannot replace the weight attached to the evidence. Accordingly, we order for dismissal of the appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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