9911796707
TMI Blog2025 (1) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant for the offences punishable Under Sections 302, 364, 366, 376(2)(m), 376A, 392 read with Section 397 and 201 of the Indian Penal Code (for short 'IPC'). For the offences punishable; Under Section 302 Indian Penal Code, the Appellant was sentenced to death; Under Section 364 Indian Penal Code, rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment of one year; Under Section 366 Indian Penal Code, a sentence of ten years RI and to pay a fine of Rs. 10,000/-, in default RI for one year; Under Section 376(2)(m) Indian Penal Code, a sentence of RI for ten years; Under Section 376A Indian Penal Code, RI for life which was to mean imprisonment for remainder of his natural life; Under Section 392 read with 397 Indian Penal Code, a sentence of RI for seven years and Under Section 201 Indian Penal Code, he was sentenced to RI of seven years. All the sentences were to run concurrently. The Appellant was directed to pay a sum of Rs. 50,000/- as compensation to be payable to the parents of the deceased. The case of the Prosecution: 2. The deceased is a 23 year old young woman (hereinafter referred to as 'EA' i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lighting and conducted the inquest Panchnama which is marked as Exh.84 and seized the ring of yellow metal (Article 27) and thereafter he sent the body for post-mortem. A spot Panchnama was also drawn in the presence of two panchas. While PW-2 Bapu Mahadev Adsul deposed with regard to spot Panchnama (Exh.38), PW-6 Nirmala Vilas Kadu testified for the inquest Panchnama (Exh. 84). PW-30 further testified that on the spot a mobile phone of Samsung company with two sim cards, one grey colour scarf, red colour T- shirt, bunch of hair, one knicker and one wrist-watch having a broken belt were found and seized. He collected the blood samples, the grass and the mud from the spot with the help of FSL persons. He deposed that the back portion of the body and chest were decomposed and that the chest was looking like half burnt. He deposed further that the leg was half burnt. 5. PW-25 Dr. Gajanan Shirserao Chavan, Assistant Professor, Forensic Medicine Department, J.J. Hospital conducted the post-mortem between 11:00 AM and 12:30 PM on 17.01.2014. The dead body was received at 05:45 AM. According to the doctor, the dead body showed a black colour brassier avulsed with metallic hook and a pink ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontusion over lower lip right side against canines - blackish red in colour 2 x 2 cm. Both contusions confirmed by cut section. 18 Other injuries discovered by external examination or perlustration as fractures etc. No ante mortem fracture. 22 Opinion as to the cause probable cause of death Evidence of blunt injuries over body and genital injuries seen. However, final opinion reserved pending for C.A. of samples. 6. The provisional cause of death was given as evidence of blunt injuries over the body and genital injuries were noticed. However, final opinion was reserved pending chemical analysis of samples. After receipt of the chemical analysis report, final cause of death was given as death due to head injury with smothering associated with genital injuries. 7. Most importantly, the time of death was estimated to be 8-10 days before the post-mortem date as no maggots or pupa were seen on the body. The post-mortem date was 17.01.2014. The defence has a case based on this that death would have occurred anytime between 07.01.2014 and 09.01.2014. The Appellant also raised an issue about the failure to draw Panchnama when the brassier of the deceased was purportedly handed over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Professor Deptt. Of Forensic Medicine Grant Medical College, Mumbai-08 Sd/- (Illegible) (Dr. G.D. Nithurkar) Assistant Professor Deptt. Of Forensic Medicine Grant Medical College, Mumbai-08 Sd/- (Illegible) (Dr.G.S. Chavan) Deptt. Of Forensic Medicine Grant Medical College, Mumbai-08" 10. The defence also states that no semen was found on any articles received from the spot or the biological samples of the deceased since the chemical analysis Reports (Exh. 17 to Exh.34) indicates that on the scarf, T-shirt, knicker with cotton pad, burnt cloth pieces and in the partly burnt cloth pieces and grass, no semen was detected. 11. Having carefully perused the evidence of PW-25 and the Exh.127 to Exh.130, we have no reason to dislodge the findings of the courts below that the death is homicidal in nature. The doctors have clearly opined that the final cause of death was due to head injury with smothering associated with genital injuries and clarified that injuries to the genitals are possible by forcible entry of some Article in the vagina. 12. After the post-mortem, the body was handed over to PW-26 on 17.01.2014 for performance of last rites which were duly performed. The App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution claims that the pen drive of the CCTV footage for the date 05.01.2014 between 4:00 AM and 07:00 AM were taken on 18.01.2014 from the Lokmanya Tilak Terminus; then the father of the deceased was contacted with the pen drive for identification of deceased EA and statements of witnesses were recorded. Chargesheet was filed after obtaining the FSL report for offences mentioned above. At the trial, the prosecution examined 39 witnesses and marked approximately 200 exhibits. The defence examined four witnesses. DW-1 to DW-3 reporters and editors who are associated with newspapers and DW-4 the official from the mobile company who spoke of CDR details and marked approximately eight exhibits. The Appellant was examined Under Section 313 and in answer to the last question as to whether he wanted to say anything more, the Appellant stated that he was falsely implicated in the case and added that in February 2014, the Kurla Police detained him for 15 days. 14. We have heard Mr. Shri Singh, learned Counsel appearing pro bono, for the Appellant who presented the case comprehensively and was ably assisted by M/s. Pritha Srikumar Iyer, Pratiksha Basarkar, Sakshi Jain and Surabhi Vaya. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mumbai and a resident of Vijayawada, Andhra Pradesh has boarded the train from Vijayawada to LTT, Kurla on 4th January 2014. (ii) Phone calls made by her father to EA on 5th January were not answered and she did not reach her hostel located in Andheri. (iii) A partly burnt decomposed body was found on 16th January 2014 near the service road of Eastern Express Highway near Kanjur Marg which came to be identified by PW No. 26 as to be of his missing daughter EA. (iv) The post mortem report establish that the death of the deceased was homicidal and there was injury to her private parts, thereby establishing that she was raped. (v) The Inquest Panchnama and Post Mortem report establish that the body was partly burnt and attempt was made to destroy the evidence by burning the body. (vi) The Accused consumed liquor at the residence of PW No. 12 in the company of PW No. 9 and then left his residence by a motorcycle belonging to PW No. 9. (vii) The CCIV footage collected from the LTT Railway station disclosed that the Accused was loitering on the platform at 4:50 am. (viii) In the CCIV footage it is seen that the deceased had accompanied the Accused while leaving LTT and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o testified about the DNA profile of PW-26 - the father matching with the paternal alleles in the source, DNA of the deceased. His report is marked as Exh. 22. He compared the DNA profiles from the blood sample of PW-26 and the DNA extracted from the sweat detected on Exh.1 - ID card with belt, Exh.2-spectacles and the bone sample of the deceased. Notwithstanding our finding recorded later on on the alleged recovery aspect of the ID card from the sister, as far as this DNA matching is concerned, considering that the DNA has matched with the blood sample of PW-26 with that of the DNA profiles of the deceased, we have no reason to doubt that PW-26 is the father of the deceased EA. 20. The defence feebly questioned the chain of custody with regard to the blood samples of PW-26 and about the lack of underlying scientific basis in the report and testimony of PW-28, the Assistant Director of FSL. We are not impressed with the said submission and hence, we reject the same, as we find no merits in the said submissions. 21. Insofar as circumstance No. 5, that an attempt was made to destroy the evidence by burning the body is concerned, herein again the prosecution must demonstrate that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... data for 05.01.2014 between 04:00 AM to 07:00 AM consisting of the CCTV footage for that time was copied in two pen drives on 18.01.2014. He has deposed that PW- 31 Chandramani Sitaram Pandey searched for the particular date and copied the footage to the pen drives and in this way the footage was copied from the computer in two pen drives. In all 425 files were copied, according to the witness. The witness states that he signed the Panchnama and thereafter PW-34 Nishikant Vishwanath Tungare sealed the articles and stamped it. Mr. Tungare told PW-1 that one pen drive was for the court and one was for operational purpose. The Panchnama was marked as Exh.36. In Exh.36 Panchnama the following description of digital video recorder 1 and digital video recorder 2 is given: Shri Chandramani Pande, acceding to the request made by the Senior Police Inspector, Shri Tungare, gave brief information in respect of the machinery installed in the said CCTV Control Room. He said that there are 36 cameras in Kurla Terminus area and the recording done by the said cameras is seen on two screens, installed in the control room. Now two screens are seen in the control room, one of the said screens is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these 16 cameras are 12 days. I cannot say the date whether the police came to L.T.T. railway station on 18/01/2014. It is correct to say that the date of 5th March will be deleted on 17th March at night automatically.... 15. ... Before 18th the police from Kurla police station never contacted me. RPF also did not call me during the period of 05/01/14 to 18/01/14. It is correct to say that any video can be edited at any stage but not from the server. One can edit the recording from the Pen Drive. He further admitted that he gave the recording in the pen drive from the server. What is of significance is that the recording on platform Nos. 1 to 5 is in DVR-II where the life span is 12 days and also that the DVR-I cameras are located in the outer side of the platform. 27. PW-33 Vishal Bhaskar Patil, is Police Constable attached to Lokmanya Tilak Terminus who was on duty in Railway Protection Force. He speaks of CCTV footage being taken after the Senior Police Officer met the officers of Railway Protection Force and obtained oral permission. On a specific question whether there was any fault in the CCTV server during the period 01.01.2014 to 08.01.2014, he answered that on 18.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the statement of the ASI who has taken the samples to the forensic lab. When I was watching the CCTV footage in pen drive, I found that one person was talking with somebody therefore I gave the instructions to inquire said person. Said person was seen in said CCTV footage for many times and he was having a bottle of soft drink in his hand. After inquiry, I came to know that said person was talking with the person who was the A.C. mechanic of the railway and his name is Nair. I called him in the police station, inquired him and I recorded his statement on 22/01/14. 10. During inquiry, the investigating team found that said soft drink bottle was purchased by him from one of the stalls in railway staff therefore I called said person in the police station and I recorded his statement. I inquired him how he remembered said person, he gave the statement and accordingly I recorded it. 11. During the inquiry with auto and taxi drivers, the investigating team found that two drivers have seen the girl whose photo was shown to them therefore I called said taxi drivers and recorded the statements of two taxi drivers. 31. PW-34 deposed that he went to Kurla Terminus for the first time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss identified both the deceased and the Appellant in the CCTV footage and the two witnesses to whom the CCTV footage was shown Singavarapa Jonathan Surendra Prasad PW-26 (who identified his daughter) and PW-27 who identified the Appellant have not established the fact that the identifications were in the same footage. PW-26 identified only his daughter coming out with her bag and with an unknown person on platform No. 4 of LTT Station and PW-27 saw the footage and identified the Appellant, in one footage with the cold drink bottle and in another with the trolley bag but did not mention presence of any girl, contends the learned Counsel. Learned Counsel contends that PW-27's identification did not inspire confidence as it was as late as on 26.03.2014; that the police brought him into the picture and nothing was there to establish that PW-27 knew the Appellant as a person who roams in the area. Learned Counsel further contends that PW-38 Vyanket Bhanudas Patil admitted that he did not collect the address proof of PW-27. According to the learned Counsel, it is unclear as to how the police knew that the persons PW-18 and PW-19 were speaking to the same person who was seen in the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a) of Sub-section (2) was regularly performed by computers, whether-- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndhu @ Afsan Guru, (2005) 11 SCC 600 was holding the field. In Navjot Sandhu (supra), this Court held as follows: 150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 65-B(4) of the Indian Evidence Act. It also held that applicability of requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies. 40. In Sonu @ Amar v. State of Haryana (2017) 8 SCC 570, (delivered on 18.07.2017) the following paragraphs being crucial are extracted hereinbelow: 30. In R.V.E. Venkatachala Gounder [R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752], this Court held as follows: (SCC p. 764, para 20) 20. ... Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is [Ed.: The matter between two asterisks has been emphasised in original.] itself inadmissible [Ed.: The matter between two asterisks has been emphasised in original.] in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the [Ed.: The matter between two asterisks has been emphasised in original.] mode of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate stage by holding that: (SCC p. 15, para 19) 19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the Respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the Respondent now to object to their admissibility. 32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nic evidence, the certificate is required. It is correct to say that I have not collected the certificate for CCTV footage. It is correct to say that I have not taken any authority letter from railway or said company to show that Chandramani Pandey has authority to handle the CCTV server. It is correct to say that the papers which were received from the Kanjur Marg police station, no such certificate was received. 42. The deposition of PW-38, when this question was put, was recorded on 18.06.2015 when the judgment in Anvar P.V. (supra) was holding the field. The prosecution ought to have taken a cue and attempted to remedy the situation. They have not done so. 43. We are dealing with a criminal case where the Accused is being tried for the offences which involve capital punishment. A court of law in this scenario cannot be technical about the manner of objections that are raised. Even though objection has not been raised specifically when the CCTV footage was exhibited by PW- 1, when PW-38 was in the witness box a specific question was put to him and subsequent to evidence, he deposed that he was aware of the necessity of furnishing 65-B certificate while collecting electronic ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018) 2 SCC 807: (2018) 2 SCC (Civ) 346: (2018) 2 SCC (Civ) 351: (2018) 1 SCC (Cri) 860: (2018) 1 SCC (Cri) 865] that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person Under Section 65-B(4) in cases in which such person refuses to give it. 46. Resultantly, the judgment dated 3-4-2018 of a Division Bench of this Court reported as Shafhi Mohd. v. State of H.P. [Shafhi Mohd. v. State of H.P., (2018) 5 SCC 311: (2018) 2 SCC (Cri) 704], in following the law incorrectly laid down in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801: (2018) 2 SCC 807: (2018) 2 SCC (Civ) 346: (2018) 2 SCC (Civ) 351: (2018) 1 SCC (Cri) 860: (2018) 1 SCC (Cri) 865], must also be, and is hereby, overruled. 47. However, a caveat must be entered here. The facts of the present case show that despite all efforts made by the Respondents, both through the High Court and otherwise, to get the requisite certificate Under Section 65-B(4) of the Evidence Act from the authorities concerned, yet the authorities concerned wilful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced to an Accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the Accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution Under Sections 91 or 311 Code of Criminal Procedure or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the Accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the Accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case - discretion to be exercised by the court in accordance with law. 61. We may reiterate, therefore, that the certificate required Under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473: (2015) 1 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Under Section 65-B(4). The last sentence in para 24 in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473: (2015) 1 SCC (Civ) 27: (2015) 1 SCC (Cri) 24: (2015) 1 SCC (L&S) 108] 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 para 24 of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473: (2015) 1 SCC (Civ) 27: (2015) 1 SCC (Cri) 24: (2015) 1 SCC (L&S) 108] does not need to be revisited. (Emphasis supplied) 49. This judgment has put the matter beyond controversy. In view of the above, there is no manner of doubt that certificate Under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record and further it is clear that the Court has also held Anvar P.V. (supra) to be the correct position of law. 50. There is one more difficulty in the way of prosecution in this case. In Sundar @ Sundarrajan v. State by Inspector of Police, 2023:INSC:264 this Court reiterated the holding in Mohd. Arif @ Ashfaq v. State (NCT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard of death sentence, this review petition must be considered in light of the decisions made by this Court in Anvar P.V. and Arjun Panditrao. 25. Consequently, we must eschew, for the present purposes, the electronic evidence in the form of CDRs which was without any appropriate certificate Under Section 65-B(4) of the Evidence Act. 46. Accordingly, we too deem it appropriate to consider this review petition by eschewing the electronic evidence in the form of CDRS as they are without the appropriate certificate Under Section 658 even if the law, as it was during the time the trial in the present case was conducted, allowed for such electronic evidence to be admitted. (Emphasis supplied) 51. In view of the above, we are not able to place any reliance on the CCTV footage, insofar as an attempt is made by the prosecution to attribute that the Appellant and the deceased EA were last seen together based on the CCTV footage. We eschew the same from consideration. Evidence of PW-20 and PW-21 for the last seen together as well as evidence of PW-18 and PW-19 for sighting the Appellant: 52. Anticipating the problem that he might encounter due to the absence of 65-B(4) certificate, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... river and also that about 500-600 persons would get down from the train and leave in a hurry. He further deposed that many people were having thick moustache. 55. PW-20 claimed that he was watching them for two minutes from a distance. He claimed that the girl was wearing T-shirt, jeans and Dupatta though he could not say about the colour of the Dupatta and T-Shirt. He stated that the girl was of 4'5'' in height. He admits that he came to know about the murder of the said girl on 05.01.2014 and was aware that the police was enquiring about the murder. He admits that he did not mention in his statement that he was on duty from 09:00 PM on 04.01.2014 to 09:00 AM on 05.01.2014. He stated that the person showed on VC screen was the person that he saw on the night of 04.01.2014 to 05.01.2014. 56. PW-21 Ganesh Krishna Shetty works in the pay and park place at Lokmanya Tilak Terminus for the last five years. His statement was recorded on 04.03.2014 nearly two months after the date of the incident. He claims that police from Crime Branch came near the parking and they were having one photograph of one girl and the police asked whether he was on duty on 05.01.2014. When he tol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, learned Counsel for Appellant mounts a scathing attack on the evidence of PW-20 and PW-21 labelling them as unreliable witnesses. Learned Counsel submits that PW- 21's statement was recorded on 04.03.2014 and PW-20's statement was recorded on 20.03.2014 about two to two and a half months after the incident. In the meantime, the Appellant had been arrested on 02.03.2014. According to the learned Counsel, the delay was inexplicable since the police had been patrolling the station and making enquiry since 16.01.2014. Learned Counsel submits that both PW-20 and PW-21 admit to being approached by the police earlier prior to the Appellant's arrest. While the Crime Branch enquired with PW-20 for half an hour on 07.01.2014, it enquired from PW-21 on 01.03.2014. Nothing was disclosed about seeing the deceased or the Appellant at that time by these two witnesses. 60. Learned Counsel draws pointed attention to the deposition of PW-20 about the pressure exerted by the police on taxi drivers and further about PW-20 giving the statement only after PW-21 told him and PW-21 contradicting this fact. The remarkable similarity in the descriptions of the Appellant by PW-20 and PW- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave a change of Rs. 4/- to him. Ordinarily, if a person in this scenario asked for a change of four, one would have assumed that he wanted to return a round figure of Rs. 70/- and if the change Rs. 4/- was not given he ought to return a figure of Rs. 6/- and it is unclear as to how after the exchange of argument, he claims to have returned Rs. 4/-. An explanation, however, has indeed been attempted in the cross-examination. 63. He further describes that the man was having moustache and his forehead was broad and that he was wearing T-shirt and blue colour pant and one key was hanging from his pocket; the man was of 5'5'' in height with a well built body and was 28 to 29 years of age. The witness states that the statement was recorded on 08.02.2014 and he participated in the TI parade on 25.03.2014 and identified the Appellant in the jail. In the cross-examination, he adds that he gave the person two chocolates and Rs. 4/- change. He admits that he was having change but did not give him change. He states that nobody came to him to enquire before 08.02.2014. 64. PW-19 Surendra PP Nayar, an AC mechanic who was on duty at Kurla Terminus on 04.01.2014 between 08:00 PM an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice knew that the person they were speaking of, was the same man in the footage. Learned Counsel further questions that TI Parade was of no value since as was submitted earlier, the photographs were widely circulated in the Media from as early as 04.03.2014. 67. Learned Counsel contends that circumstances of last seen can be taken into consideration only when the prosecution establishes that the time gap between the point where the Accused and deceased were last seen together and the time when deceased was found dead was so small that the possibility of any other person being with the deceased could be completely ruled out. Learned Counsel draws our attention to the judgments in State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755, and Anjan Kumar Sarma and Ors. v. State of Assam (2017) 14 SCC 359. 68. According to the learned Counsel, the deceased who alighted from the Train on 05.01.2014 was found dead on 16.01.2014. As per Dr. Chauhan, PW-25, the death was traced back 8-10 days before the post-mortem, which was held on 17.10.2014. Going by this, the deceased could have been killed at any point between 07.01.2014 and 09.01.2014 even as per the version of the prosecution. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns whereas PW 2 identified three of them, namely, Accused 2, 6 and 7 alone. It is, however, in evidence that before the identification parades were held the photographs of the Accused persons had appeared in the local daily newspapers. Besides, the Accused persons were in the lock-up for a few days before the identification parades were held and therefore the possibility of their having been shown to the witnesses cannot be ruled out altogether... 74. In Gireesan Nair and Ors. v. State of Kerala, (2023) 1 SCC 180, this Court in Para 31 held as under: 31. In cases where the witnesses have had ample opportunity to see the Accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the Accused was kept "baparda" to Rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the Accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. [Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such Accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the Accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. 77. PW-18 and PW-19 had not last seen the Accused Appellant and the deceased together. The statement of PW-18 was recorded on 08.02.2014 and the other of PW-19 on 22.01.2014. They have not been shown the CCTV footage admittedly. How they remembered as to what happened on 05.01.2014 when the Police recorded their statement on 22.01.2014 and 08.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he saw one person starting the bike. 79. PW-23 further states that he asked the person who was starting the bike whether he had a problem in starting the bike and the person nodded his head in agreement. The witness adds that when he saw him he found that there was mud on his shoulder and when he asked the person whether he fell down, the person said he did not fall down. When the witness further asked the person whether he could help him start the bike, the person told him that there was no petrol. The witness claims that he saw one bag on his back and one bag was kept on the petrol tank of the bike. The witness adds that the person parked the bike there and was going towards Vikhroli by pulling the trolley bag. The witness says he went towards in with the dogs and saw him wearing white colour T-shirt and blue colour jeans pant and he was 5'5" in height and was of wheatish complexion. The witness claims that he identified the person who he saw on 05.01.2014 at the Identification Parade on 25.03.2014. The witness states that the person shown in Court on the VC screen is the same person. 80. Mr. Shri Singh the learned Counsel assailing the evidence of PW-23 contends that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to society for many times. On 05/01/14 at 9.00 a.m. I saw the Accused going with his mother when I was standing with Chairman with other persons near the water room. (The witness started the statement saying that something published in paper). After 05.01.14 I have not seen the Accused. The Accused was having one bag on back and one trolley bag. The police inquired with me and recorded my statement on 12/03/14. We really see no basis on which this can be considered as a link in the chain of circumstances to prove the offence of which the Appellant is charged. We need to say nothing more. 83. Before we deal with the aspect of the evidence of PWs - 9, 12, 22 and the recoveries allegedly effected, we would first deal with the evidence of PWs -15, 16 and 17. Evidence of PWs-15, 16, 17: 84. PW-16 is Prasad Sharadchandra Shukla, a Priest in Trimbakeshwar Temple. He deposes that he does Puja for Kalsarpayog. He states that on 05.01.2014 the Appellant came to him on reference of PW-17 Rajabhau Aher (the astrologer) for performing Puja of Kalsarpayog and Atigand Yog. He deposes that the Appellant came with his horoscope and paid him Rs. 3000/-. That the Puja was performed at 7:30 AM on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house, the Appellant asked him about anything. 87. PW-15 Ashok Kumar Harivilas Pandey is a resident of Mumbai. According to his evidence, on 10.03.2014, Police constable Sanjay Jadhav called him to the Police Station. Police Officer Mr. Mane was present there. The Police told him that he had to go to Nasik, Panchvati, Makhmalabad for conducting Panchnama. He along with another Panch witness and Mr. Mane went to Nasik by white colour Scorpio Vehicle. He was told that one house search in one murder case at Nasik had to be done. They reached Makhmalabad at 12:00 noon. During the search, nothing was found in the house. Post lunch they went to Trimbakeshwar and Mr. Mane sent one constable to call PW-16 Shri Prasad Shukla. The Police asked him whether the Appellant came for performing Puja at which point PW-16 took one register from his bag and after going through the same, told him that Appellant came there to perform Puja on 06.01.2014 and received Rs. 3000/- from him. He stated that the Police took the Xerox copy of the extract of register and the original was returned. The Xerox copy was marked as Article 30. The extract bears the signature of PW-15 at serial No. 2. The Panchnama w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would carry the horoscope as late as on 02.03.2014. In any case, the evidence given by PWs -15, 16 and 17 do not constitute circumstantial evidence having any nexus with the commission of the crime in question. We totally discard this from the chain of circumstances. Evidence of PWs - 9, 10, 12 and 22 and the alleged extra judicial confession to PW-9: 91. The role of the Motorcycle in this case has several twists and turns. PW-10 Sureshchandra Ramdhiraj Mishra, is a driver of Auto Rickshaw and is a resident of Vikroli, Mumbai. He is acquainted with PW-9 Nandkishore Sahu since 2010. The acquaintance, according to him, was only to the extent of Hi, Hello. He states that he gave a Discover Motor Bike of Bajaj Company bearing No. MH03AY0241 to Nandkishore Sahu. 92. PW-10 states that his Pan Card, Voting Card and Ration Card were given for purchasing the said Motor Bike while the payment was being made by PW-9 also known as Nandkishore Sahu. He states that PW-9 was using the said Motor Bike and he gave the documents since such documents were not with Sahu. His case is that he gave the documents and Sahu (PW-9) made the payment and that the police recorded his statement. He is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur T-shirt which was stained with mud was lying there. He states that the Appellant came with him after wearing the clothes and when PW-9 asked him for the key, the Appellant told him that as there was no petrol he had to park it at the highway and the Appellant asked PW-9 to come with him by taking somebody's vehicle. PW-9 states that he went to PW-22 Kadir Murgeewala and on his asking, PW-22 gave his splendor bike and the Appellant sat on the Motorcycle behind him stating that he would show where the Motorcycle was parked. Thereafter, the Appellant showed the bike and asked him to take the service road where PW-9 saw his bike parked on the service road. PW-9 states that he tried to start the Motorcycle but there was no petrol. Thereafter, PW-9 states that the Appellant went 100 ft. away from him inside the bushes and when he went behind him he saw the Appellant searching something in the bushes and when asked the Appellant told him that he was searching something. PW-9 states that at the place where he was searching, one girl was lying there and she was no more and she was 23-24 years of age. PW-9 states that he was scared and came back. The Appellant came running behind him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime and disclosed to him about the case on 04.03.2014. 97. PW-9 admitted in cross-examination that in his statement he had not stated that when he asked about the key to the Appellant, the Appellant told him that there was no petrol and it was parked in the highway. He also admitted that he had not mentioned in the statement that Appellant came with him after wearing clothes. PW- 9 further states that he was not at home when the Police came to his house and took the Motorcycle. He further stated that near Kanjur Marg bridge there was a petrol pump and the bridge was about 5 minutes distance from his house and the petrol pump was also on the way from the spot to his house. 98. PW-9 further submitted that though it will be incorrect to say that the Appellant was not his close friend he also said that he was not having close friendship with him. PW-9 admitted that he had a quarrel with him three years before. PW-9 admitted that it was correct to say that he was annoyed with him because of the said quarrel and from that day he came to know that Appellant was of quarrelsome nature. He further stated that he decided to keep distance from him from that day and that after the quarrel he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was parked bearing No. MH03-AY-0241. He recorded the engine No. and chassis No. When asked about the key, the Appellant told that his friend is having the key who is staying on the second floor of the said building and his name was Nandkishore Sahu (PW-9). PW-36 states that he sent constable shetty (not examined) along with Panch witness No. 2 Moh. Rehan Shafi Sheikh (not examined) - (Panch witness No. 1 was PW-3 Boga Rama More) to bring the key. They had brought the key and Exhibit-42A Panchnama was prepared for the seizure of the Motorcycle. 102. Admittedly, as is clear, no Panchnama of handing over of the key by the person on the second floor was made. The person who went to collect the key is not examined. PW-3 Boga Rama More who narrates the same sequence is not the Panch witness who went to collect the key. DW-4 Vikas Narayan Palekar, Nodal Officer in Vodafone who produced the CDR of Mobile No. 7775853547 speaks of in the cross-examination that there was no phone call or SMS from the said mobile from 11.02.2014 to 02.03.2014. However, in the Chief, he did mention about the calls on 05.01.2014, 06.01.2014 and 08.01.2014. Admittedly, the phone bearing No. 7775853547 belongs t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being taken into custody and, in any event, 2 days before the recording of the statement it being publicly announced that Nandkishore (PW-9) was already in contact with the Police. According to Shri Singh, no new information was brought on record and PW-9's deposition merely brings together the disparate pieces of evidence already available with the Police. According to the learned Counsel no importance should be attached to the extra judicial confession, since it served merely to bolster the circumstantial evidence on which the case depends. 105. According to the learned Counsel, PW-9's testimony was not corroborated on any material particulars and his evidence primarily consisted of material improvements which were put to the investigating officer. A part of the evidence of PW-38 Vyanket Bhanudas Patil, Senior Police Inspector, DCB CID unit VII, is extracted hereinbelow: 44. I have recorded the statement of Nandkumar Sahu (PW 9). PW 9 has not stated in his statement that he was using motorcycle No. MH-02-AY-0241. He has not stated in his statement that Sanap was staying at the backside of his building. He has not stated in his statement that Rajashree Shetty was doi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ump near the bridge 5 minutes away from his house. 108. We have carefully considered the efficacy of the extra judicial confession of PW-9. Extra judicial confession, by its very nature, has been held to be a weak piece of evidence. Normally it is given to persons who enjoyed the confidence and trust of the Accused. From the evidence mentioned above, we are not able to find that PW-9 enjoyed the confidence of the Accused so as to safely infer that the Accused would have made a clean breast of things to PW-9. Further disturbing feature in this case is that PW-22 does speak of Police taking PW-9 into custody in connection with this case. There is no re-examination of PW-22 at this stage. 109. In the case of Nikhil Chandra Mondal v. State of W.B., 2023:INSC:198 : (2023) 6 SCC 605, one of us (B.R. Gavai, J.) speaking for the Court, felicitously set out the Statement of law thus: 16. It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of T.N., (1988) 3 SCC 319, this Court held as under: 26. It is now well settled that a statement of fact contained in a newspaper is merely hearsay that therefore inadmissible in evidence in absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. The Accused should have therefore produced the persons in whose presence the seizure of the stolen money from Appellant 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item... 112. Moreover, the recovery of the Bike leaves much to be desired. The ownership of the Bike is in the name of PW-10 Sureshchandra Ramdhiraj Mishra. He claims that money was paid by PW-9; the recovery was from an open place and most importantly neither the constable Shetty who went to collect the key nor the Panch witness No. 2 Mohammed Rehan Shafi Shaikh have been examined in this case. No Panchnama was made to the delivery of the key from the second floor. 113. That leaves for consideration, the recovery of the trolley bag from Nasik on 03.03.2014 from PW-24 Kamlabai Kisan Sanap, who is a resident of Mhasoba Patangan, Panchvati, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the said 'lady'; however, PW-4 and PW-35 depose that the Appellant stated his readiness to produce the trolley bag and contended that the exact information given by the Accused in the disclosure statement ought to be proved; that no description of PW- 24 or the place in Nasik was given in the disclosure statement; that PW-24 admitted that she was threatened with arrest; that she was unaware of what was written on the paper she was putting the thumb impression on and also did not identify the Appellant in the TIP; that no local Panch was associated and that trolley was admittedly a generic and easily available material. 117. We are not impressed with the evidence of the recovery and, in any event, merely based on the recovery no conviction for the offence charged could be sustained against the Appellant in this case. Similarly, the prosecution claims that PW-5 was a Panch witness for the recovery of the bags which were with the victim. PW-5 deposes that the Appellant accompanied them in a Police vehicle to room No. 12 in Sai Building; that one lady was there in the room; that it was a sister's room and she was running a Mess; that the Accused went inside the room and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he eye in this case. While the old adage, witness may lie but not the circumstances, may be correct, however, the circumstances adduced, as held by this Court, should be fully established. There is a legal distinction between 'may be proved' and 'must be or should be proved' as held by this Court. The circumstances relied upon when stitched together do not lead to the sole hypothesis of the guilt of the Accused and we do not find that the chain is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the Accused. 122. Not only, is the test of Sharad Birdhichand Sarda (Supra) not satisfied, sustaining a conviction based on this sketchy and disjointed evidence would be disregarding the warning of Judge Barron Alderson in Reg v. Hodge [1838] 2 Lew 227 as reiterated in Hanumant v. State of Madhya Pradesh AIR (1952) SC 343, about the caution to be exercised in cases based on circumstantial evidence: The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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