Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
I N D E X
In
CRIMINAL APPEAL NO.254 OF 2015
WITH
CRIMINAL APPEAL NO.255 OF 2015
WITH
CRIMINAL APPEAL NO.393 OF 2015
WITH
CRIMINAL APPEAL NO.121 OF 2016
WITH
CRIMINAL APPEL NO.180 OF 2016
WITH
CRIMINAL APPEAL NO.181 OF 2016
apeal254.15 with connected appeals.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
I N D E X
In
CRIMINAL APPEAL NO.254 OF 2015
WITH
CRIMINAL APPEAL NO.255 OF 2015
WITH
CRIMINAL APPEAL NO.393 OF 2015
WITH
CRIMINAL APPEAL NO.121 OF 2016
WITH
CRIMINAL APPEL NO.180 OF 2016
WITH
CRIMINAL APPEAL NO.181 OF 2016
| Serial<br>Number | Title | Para<br>Number | Page<br>Number |
|---|---|---|---|
| 1. | Facts of the case. | 2 to 13 | 10 to 19 |
| 2. | Controversy of the case in brief. | 14 to 16 | 19 to 21 |
| 3. | Spot of incident, its surroundings, and<br>installation in the Bar. | 17 to 22 | 21 to 26 |
| 4. | Our findings on the spot of incident,<br>its surroundings, and installation in<br>the Bar. | 23 | 26 and 27 |
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| 5. | Arrest of the accused persons. | 24 | 27 and 28 |
|---|---|---|---|
| 6. | Discovery under Section 27 of the<br>Evidence Act by accused No.1 Tushar. | 25 to 28 | 28 to 31 |
| 7. | Discovery under Section 27 of the<br>Evidence Act by accused No.2 Kunal. | 29 and 30 | 31 to 33 |
| 8. | Discovery under Section 27 of the<br>Evidence Act by accused<br>No.5 Bhupesh @ Rinku. | 31 | 33 and 34 |
| 9. | Discovery under Section 27 of the<br>Evidence Act by accused No.6 Sameer. | 32 | 34 and 35 |
| 10. | Seizure of the clothes of the deceased. | 33 | 35 |
| 11. | Forwarding of clothes and articles<br>seized and sealed, to the Chemical<br>Analyzer for opinion. | 34 | 36 |
| 12. | Our findings on the issues of arrest of<br>the accused persons and discovery<br>under Section 27 of the Evidence Act<br>at their instance. | 35 | 36 and 37 |
| 13. | Query report in respect of weapon<br>seized and the report of Chemical<br>Analyzer. | 36 and 37 | 37 to 41 |
| 14. | Our findings on the weapons seized<br>and the report of the Chemical<br>Analyzer. | 38 to 40 | 41 to 44 |
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| 15. | Oral evidence of PW 6 Vinay Dubey, a<br>chance witness. | 41 to 46 | 44 to 51 |
|---|---|---|---|
| 16. | Our findings on the oral evidence of<br>PW 6 Vinay Dubey, a chance witness. | 47 to 52 | 51 to 55 |
| 17. | Finger print of accused No.1 Tushar. | 53 to 57 | 56 to 59 |
| 18. | Objection of the defence to the oral<br>evidence of PW 8 Sunil Lonarkar, the<br>Finger Print Expert, and his report at<br>Exhibits 129 and 121 in respect of<br>finger print of accused No.1 Tushar. | 58 to 60 | 59 to 62 |
| 19. | Our findings on issue of finger prints<br>of accused No.1 Tushar. | 61 | 63 |
| 20. | Core Issue. | 62 and 63 | 64 and 65 |
| 21. | Consideration of electronic evidence in<br>the form of CD – 'X' marked for<br>identification to establish the entire<br>incident of murder of Jitu at Seven<br>Hills Bar. | 64 to 67 | 66 to 69 |
| 22. | Our findings in respect of electronic<br>evidence of CD – X' for identification. | 68 to 70 | 69 to 72 |
| 23. | Appreciation of the evidence of the<br>snapping of the photographs of all the<br>accused persons – Our findings on it. | 71 to 73 | 72 to 74 |
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| 24. | Electronic evidence in the form of DVD<br>– Article 18A. | 74 to 80 | 75 to 82 |
|---|---|---|---|
| 25. | Our findings on electronic evidence of<br>DVD – Article 18A and the report at<br>Exhibit 57. | 81 to 85 | 82 to 86 |
| 26. | Oral evidence of PW 4 Pramod to<br>identify the assailants as accused<br>persons. | 86 and 87 | 86 to 88 |
| 27. | Our findings on the oral evidence of<br>PW 4 Pramod on the identification of<br>accused persons. | 88 and 89 | 88 to 90 |
| 28. | Rival contentions on the question of<br>admissibility of the certificate at<br>Exhibit 160 issued under Section 65B<br>of the Evidence Act. | 90 to 93 | 90 to 94 |
| 29. | Consideration of Precedents. | 94 to 102 | 94 to 103 |
| 30. | Law summarized on electronic<br>evidence. | 103 | 103 to 106 |
| 31. | Certificate at Exhibit 160 does not<br>fulfil the requirements of subsection<br>(4) of Section 65B of the Evidence<br>Act. | 104 to 105 | 106 and 107 |
| 32. | Our understanding of law on<br>electronic evidence. | 106 and 107 | 108 and 109 |
| 33. | Our view on the admissibility of<br>electronic evidence in the facts and<br>circumstances of this case. | 108 to 111 | 110 to 113 |
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| 34. | Significant aspects to be noted in<br>respect of electronic evidence<br>produced. | 112 | 113 and 114 |
|---|---|---|---|
| 35. | Other objection to electronic evidence. | 113 | 115 and 116 |
| 36. | Ourselves witnessing CCTV footages<br>from Hard Disk, CD and DVD. | 114 to 116 | 116 to 119 |
| 37. | Activities in the Seven Hills Bar. | 117 | 119 and 120 |
| 38. | Actual incident, complaint, the persons<br>present on the spot, and their oral<br>evidence. | 118 to 129 | 120 to 141 |
| 39. | Concurring with the findings of<br>Sessions Court. | 130 | 141 and 142 |
| 40. | Law on unlawful assembly and<br>criminal conspiracy. | 131 to 136 | 142 to 146 |
| 41. | Objection to the identification of<br>accused. | 137 | 147 |
| 42. | Our findings on identification of<br>accused, unlawful assembly and<br>criminal conspiracy. | 138 to 144 | 147 to 154 |
| 43. | Chain of the facts and circumstances<br>established. | 145 | 154 to 164 |
| 44. | Our Conclusion. | 146 and 147 | 164 and 165 |
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(1) CRIMINAL APPEAL NO.254 OF 2015
Bhupesh @ Rinku s/o Vitthalrao Tichkule ,
Aged 30 years, Resident of 103,
Shyam Palace, Congress Nagar, Nagpur,
(Original accused No.5)
Presently in Jail. … Appellant
Versus
The State of Maharashtra,
through Police Station Officer,
Sakkardara, Nagpur ,
District Nagpur. … Respondent
With
(2) CRIMINAL APPEAL NO.255 OF 2015
Laxmikant @ Lacchu s/o Ravindra Faye ,
Aged about 31 years,
R/o Bhutiya Darwaja, Mahal, Nagpur,
(Presently in Central Jail, Nagpur). … Appellant
Versus
The State of Maharashtra,
Through P.S.O., Sakkardara ,
Dist. Nagpur. … Respondent
With
(3) CRIMINAL APPEAL NO.393 OF 2015
Tushar s/o Sahebrao Dalal ,
Age 33 years, Occupation – x blank x,
R/o Dattatraya Nagar, Nagpur,
(At present in Central Jail, Nagpur). … Appellant
Versus
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State of Maharashtra,
Through PSO, Sakkardara, Nagpur . … Respondent
With
(4) CRIMINAL APPEAL NO.121 OF 2016
Sameer s/o Suresh Katkar ,
Aged about 32 years,
Occ. Labour,
R/o Qtr. No.157/116, New Somwari Peth,
Raghuji Nagar, Nagpur,
(In Jail). … Appellant
Versus
The State of Maharashtra,
Through P.S.O., Sakkardara,
Sakkardara , Dist. Nagpur. … Respondent
With
(5) CRIMINAL APPEAL NO.180 OF 2016
Kunal Motiram Maske ,
R/o Gangabai Ghat, Corporation Colony,
Nagpur,
At present, Central Jail, Nagpur. … Appellant
Versus
State of Maharashtra,
(Through P.S.O., PS Sakkardara, Nagpur) . … Respondent
With
(6) CRIMINAL APPEAL NO.181 OF 2016
Amol s/o Mahadeo Mandale ,
Aged about 30 years,
Resident of Plot No.50,
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Bhande Plot, Nagpur,
(In Jail). … Appellant
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station Sakkardara ,
Nagpur. … Respondent
Criminal Appeal No.254 of 2015 :
Shri S.P. Dharmadhikari, Senior Advocate, assisted by
Shri U.P. Dable, Advocate for Appellant.
Shri M.J. Khan and Shri J.Y. Ghurde, Additional Public Prosecutors
for Respondent.
Criminal Appeal No.255 of 2015 :
Shri R.M. Daga, Advocate for Appellant.
Shri M.J. Khan and Shri J.Y. Ghurde, Additional Public Prosecutors
for Respondent.
Criminal Appeal No.393 of 2015 :
Shri Varun K. Chopra, Advocate for Appellant.
Shri M.J. Khan and Shri J.Y. Ghurde, Additional Public Prosecutors
for Respondent.
Criminal Appeal No.121 of 2016 :
Shri R.K. Tiwari, Advocate for Appellant.
Shri M.J. Khan and Shri J.Y. Ghurde, Additional Public Prosecutors
for Respondent.
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Criminal Appeal No.180 of 2016 :
Shri R.R. Rajkarne, Advocate for Appellant.
Shri M.J. Khan and Shri J.Y. Ghurde, Additional Public Prosecutors
for Respondent.
Criminal Appeal No.181 of 2016 :
Shri A.S. Manohar, Advocate for Appellant.
Shri M.J. Khan and Shri J.Y. Ghurde, Additional Public Prosecutors
for Respondent.
CORAM : R.K. DESHPANDE and M.G. GIRATKAR, JJ.
DATE OF RESERVING THE JUDGMENT : 17th APRIL, 2018
DATE OF PRONOUNCING THE JUDGMENT : 5th JUNE, 2018
JUDGMENT (PER R.K. DESHPANDE, J.) :
1. All the accused persons are convicted for the offences
punishable under Section 302 read with Sections 120B and 149 of
the Indian Penal Code (“IPC”) apart from the offences under
Sections 147, 148, 506B and 149 of IPC in relation to the murder of
one Jitendra Marotrao Gawande on 1012013 between 5.30 p.m.
and 6.30 p.m. in the Seven Hills Bar and Restaurant at Sakkardara,
Nagpur. All of them are sentenced to suffer rigorous imprisonment
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for life for the offences punishable under Sections 302, 120B and 149
of IPC with fine of Rs.2,000/, to suffer rigorous imprisonment for a
period of one year with fine of Rs.5,000/ for the offence punishable
under Section 147 of IPC, and to suffer rigorous imprisonment for a
period of two years for the offences punishable under Sections 506B
and 149 of IPC with fine of Rs.5,000/. All the sentences are directed
to run concurrently.
Facts of the case :
2. The incident of murder of Jitendra Marotrao Gawande at
5.30 p.m. on 1012013 in the Seven Hills Bar and Restaurant
(“the said Bar”) at Sakkardara, Nagpur, is not in dispute. The story
deposed by PW 1 Raghuveer Ramesh Vallabhdas, the Manager of the
said Bar, is that on the date of the incident at about 5 to 5.30 p.m.,
four persons entered the said Bar and one of them came to his
counter and made a demand for a peg (liquor), which he gave it to
him in the glass. The other three persons were standing behind him
and all of them were looking outside the door again and again, giving
an impression of waiting for someone's arrival. After some time, a
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big white car came, from which one person (victim) alighted and
entered the said Bar. There were altercation between the four
persons and the victim who came in the car, which resulted into
quarrel. Out of four persons, two persons started assaulting the
victim by means of knife and rest two went outside. The victim, who
was assaulted, fell down, the assault continued and thereafter two
assailants left the said Bar and the victim was lying in a pool of
blood. PW 2 Raju and PW 3 Sitaram, the waiters in the said Bar, were
also the eyewitnesses to an incident. PW 1 Raghuveer informed the
incident on phone to the police.
3. PW 16 Rupali Bawankar, working as PSI at Sakkardara
Police Station, states that she received the information from the
Control Room that in the said Bar one person is assaulted by a knife
at about 6 p.m. She, therefore, proceeded along with the Head
Constable Sawarkar and other staff to the said Bar. Inside the said
Bar, she found the victim lying in a pool of blood and he was dead.
She arranged two panchas and prepared the inquest panchanama at
Exhibit 162. She arranged to collect the blood samples with the help
of cotton swab and also seized the glass from the counter of the said
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Bar, used for consuming peg by one of the assailants, as was told by
PW 1, the Manager of the said Bar. PW 1 showed her the cameras
installed in the said Bar, the description of which she mentioned in
the spot panchanama at Exhibit 163. PW 1 also showed her LCD TV
where the live video of the camera was being displayed. The Finger
Print Expert PW 8 Sunil Lonarkar was called, who, after encircling
finger prints on the glass, asked the photographer to snap it. The
body of the deceased was sent for post mortem examination to the
Government Medical Hospital along with the requisition at
Exhibit 164.
4. PW 16 called the owner of the said Bar,
PW 5 Kailash Gulhane, and after getting the information, the Expert
PW 14 Shubham Narayan Padgilwar, who installed the CCTV system
in the said Bar, was called. The Expert PW 14 told that he installed
the cameras in the said Bar and the same were working properly.
According to PW 14, the DVR contains the recording of camera and
he showed the recorded footages of the incident from DVR on LCD
TV. The camera No.1 contained the footage of two persons assaulting
one person by a sharp weapon and the other persons were instigating
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the assailants. The footage recorded in the camera No.7 showed that
the assailants came inside the said Bar and thereafter the deceased
came there. It also indicated the assailants running away from the
said Bar.
5. The Expert PW 14 Shubham told that the copy of the said
footage can be done and, therefore, PW 16 PSI Rupali arranged the
blank pen drive and two DVDs (CDs). PW 14 took the copy of the
said footages from DVR in the pen drive and copied in DVD with the
help of the laptop. On verification of the pen drive and the DVD in the
laptop, it was found that the copies were properly done. The pen
drive and the two DVDs were seized and sealed. PW 14 took out the
Hard Disk from the DVR, which was seized and sealed. The DVR was
also seized and sealed along with the Charging Wire, the Mouse and
the Remote. The seizure panchanama of these articles was prepared
at Exhibit 99. PW 16 obtained the bills of pen drive and DVD, which
were placed on record at Exhibit 165. She prepared the rough sketch
of the spot at Exhibits 166 and 167, including the location of the
cameras.
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6. PW 16 PSI Rupali further states that the complaint
dated 1012013 at Exhibit 85 by PW 1 Raghuveer, the Manager, was
recorded. Printed FIR at Exhibit 86 was prepared initially against
unknown persons, as PW 1 did not state the names of assailants. On
the next date, PW 1 gave the names of accused Nos.1 to 5 as
assailants. The statements of the Bar owner and the
Expert PW 14 Shubham were also recorded and the Scorpio Car in
which the deceased came was also seized at Exhibit 107. She
identified the articles seized, viz. Article1 DVR, Article4 Hard Disk,
Article7 Adapter, Article10 Mouse, and Article13 Remote. She
states that the labelled Articles 2, 5, 8, 11, 14 and 15 bear her
signature whereby the said articles were seized. The CD (DVD) was
marked as 'X' for identification and it was played in the laptop. The
footages of the camera Nos.1, 2 and 7 were seen by the witness. She
states that the footages contained in the CD (DVD) are the same,
which were copied from DVR to pen drive and from the pen drive to
DVD.
7. In the wee hours of 1112013, the accused Nos.1 and 2
were arrested and investigation was handed over to
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PW 18 API Vitthal Salunke. PW 18 API Vitthal Salunke, attached to
Sakkardara Police Station, carried further investigation in the matter.
He recorded the supplementary statement of the complainant and
also the statements of PW 6 Vinay Dubey on 1112013. He arrested
the accused No.3 Laxmikant, accused No.4 Amol Mandale, and
accused No.5 Bhupesh alias Rinku Tichkule vide arrest panchanama
at Exhibits 176 to 178. He seized the clothes of the accused
Nos.3 to 5 vide seizure memo at Exhibit 175.
8. On 1212013, PW 18 recorded the memorandum
panchanama of the accused No.1 Tushar at Exhibit 138 under Section
27 of the Evidence Act upon expressing an intention to make a
voluntary statement and to show the place where he concealed the
clothes and the knife. The accused No.1 took them to one heap of soil
and after removing one stone from the heap, took out the clothes and
the knife. The knife Article 1A was of the size of 14.5 inches,
including the handle. It was stained with blood. The clothes were
consisting of black and while shirt and bloodstained blue coloured
jean. All these articles were sealed under the seizure panchanama at
Exhibit 139. Article 16 is the jean and Article 17 is the shirt.
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9. On 1312013, the accused No.2 Kunal Maske also intended
to make a voluntary statement. The memorandum panchanama at
Exhibit 146 under Section 27 of the Evidence Act was prepared.
PW 18 API Vitthal took the accused No.2 along with the panchas and
the police staff in a Government vehicle. The accused No.2 took them
to one house in the slum area and knocked the door. The accused
No.2 went inside the house along with the staff. He took out one
knife from the loaf ( sajja ) behind the speaker. The knife
Article 2A was having blood stains. It was wrapped, seized and
sealed under the seizure panchanama at Exhibit 146.
10. On 1412013, the accused No.5 Bhupesh @ Rinku intended
to make a voluntary statement and it was recorded under the
memorandum panchama at Exhibit 181. Along with him and the
police staff, PW 18 API Vitthal went in front of Shyam Palace
building, Congress Nagar Square. The accused No.5 Bhupesh showed
them a car besides the said building. It was 'Ritz' car, having
registration No.MH31 EA 6696, which was seized under the seizure
panchanama at Exhibit 182. It was in the name of Dr. Vitthal
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Tichkule, the father of the accused No.5.
11. The accused No.6 Sameer Katkar was arrested on
1712013 under arrest panchanama at Exhibit 186.
On 1812013, PW 18 API Vitthal got full size photographs of the
accused persons, snapped for the purpose of investigation, by
PW 20 Nitin Watkar of Diamond Photo Studio while the accused
persons were in police custody. The photographs were handed over
and the bill of payment prepared on 1812013 is marked as
Exhibit 204. PW 18 states that on 1912013, he sent the clothes of
the accused and the deceased and the blood samples of the accused
and the deceased under the covering letter at Exhibit 189 to the
Regional Forensic Science Laboratory, which were kept in the
Malkhana .
12. The accused No.6 Sameer Katkar intended to make a
voluntary disclosure in respect of the bike used in the crime. It was
recorded on 1912013 in the memorandum panchanama at
Exhibit 148. He took PW 18 API Vitthal along with the police staff in
the Government vehicle to show the way and eventually reached the
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place near Shrikrishna. Outside one house, the accused No.6 showed
one covered bike 'Hero Honda Splendor' bearing registration
No.MH31 AW 7400. After a minute observation, the blood stains
were found on the pillion seat cover. It was collected with the help of
cotton, which was sealed in a plastic packet under the seizure
panchanama dated 1912013 at Exhibit 149. The said bike standing
in the name of Suresh Pandurang Katkar was seized under the seizure
panchanama at Exhibit 188.
13. PW 18 API Vitthal prepared the request letter
on 222013 and sent it to the Forensic Science Laboratory at Kalina,
Mumbai for examination of Hard Disk and comparison of
photographs of the accused with CCTV footage under the letter at
Exhibit 195. All the articles were bearing seal as 'VSS'. He also sent
the weapons and samples from Malkhana to the Chemical Analyzer
for analysis under the covering letter dated 422013 at Exhibit 207.
The witness identified the photographs of the accused persons at
Exhibits 197 to 202, snapped by Nitin, the Photographer. He also
identified the photograph of the deceased Jitendra at Exhibit 196. He
identified the clothes of the deceased at Exhibit 152A. He also
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identified fifteen photographs snapped from the spot of the incident
and sealed, marked as Articles A to O, and CD as ArticleP.
On 422013, the Test Identification Parades of the accused persons
were conducted by the Executive Magistrate at Exhibits 89 and 94
and accordingly the report was prepared. The thumb impressions of
the accused were taken at the time of arrest and were sent to the
Finger Print Expert for comparison. The reports dated 2222013 and
1432013 at Exhibits 129 and 128 respectively were received.
PW 19 Ms Puja Madhukar Nevage examined the CCTV footages and
accordingly issued the report dated 1312014 at Exhibit 57 stating
that the persons in the selected CCTV footages are similar with the
photographs of the accused Nos.1 to 6.
Controversy in brief :
14. The incident of murder of Jitendra on 1012013 at
5.30 p.m. at the said Bar is not in dispute. But it is the identity of the
assailants or involvement of accused in this case, is in dispute. The
deceased was stabbed with multiple injuries by the two knives
causing his death by the assailants on the spot, is not in dispute. The
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entire incident was recorded in CCTV cameras installed and
functioning in the Bar. PW 4 Pramod, the real brother of the
deceased, has identified each of the accused as the participant in the
conspiracy and a member of an unlawful assembly, which blotted out
the deceased Jitu, when he was confronted with CCTV footages
during his examinationinchief. The core issue is, therefore, of the
admissibility of electronic evidence of footages in CCTV cameras, to
identify the assailants as the accused persons. Since PW 1 Raghuveer,
the Manager, and PW 2 Raju and PW 3 Sitaram, the waiters in the
said Bar and the eyewitnesses to an incident refused to identify the
accused as the assailants, they were declared as hostile and
crossexamined.
15. The identification of the accused persons was a fact in issue
and in terms of Section 5 read with Section 9 of the Evidence Act, it
was required to be established beyond reasonable doubt. The
prosecution has relied upon the direct evidence of PW 6 Vinay, the
chance witness, sitting on his motorcycle at some distance from the
said Bar, who saw the accused persons coming out of the said Bar and
running away on the motorcycle and in the car. PW 4 Pramod, the
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brother of the deceased, has deposed about the motive and also
identified the assailants in CCTV footages as the accused persons.
The Sessions Court found the evidence of both these witnesses
trustworthy to identify the accused persons as the assailants. The
Sessions Court also relied upon the other corroborative evidence and
the circumstances to hold that the identity of the accused as the
assailants of the deceased Jitendra is established beyond reasonable
doubt.
16. We now, therefore, proceed to consider the entire evidence
on record, the challenges to it and record our findings under different
headings.
Spot of incident, its surroundings and installation in the
Bar :
17. PW 1 Raghuveer, the Manager in the Seven Hills Bar and
Restaurant, has described the spot of incident, surroundings and
installation in the Bar. The incident occurred inside the Bar on the
ground floor. He states that the Bar is located on the road, which is
divided. Adjacent to the road, there is a compound wall of the Bar,
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affixed with the iron gate. There is a glass door adjacent to the
shutter of the Bar. Adjacent to the glass door, there is a partition of
glass. After entry in the Bar from the glass door, there is a hall,
thereafter a kitchen, thereafter a lawn and immediately towards left
side after entry, there is a counter and adjacent to it, starts kitchen,
and towards right side, there is a sitting arrangement for the
customers. In the hall, there are eleven tables for the customers.
18. PW 16 Rupali is the Investigating Officer, who reached the
spot of incident at about 6 p.m. on 1012013. She prepared the
inquest and spot panchanamas at Exhibits 162 and 163 respectively,
signed by the panch witnesses, one of which is
PW 3 Sitaram Wankhede. PW 3 identifies the inquest panchanama
as Exhibit 92 and the spot panchanama as Exhibit 93 (Inquest
Panchanama bears Exhibits 162 and 92, whereas Spot Panchanama
bears Exhibits 163 and 93). The documents at Exhibits 162 and 163
describe the spot of incident. The glass door of the Bar is fixed
facing the northern side. Immediately after entering the Bar, on the
eastern side of the wall, a showcase containing the liquor bottles is
mounted, in front of which, there is a northsouth counter table of
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8 feet in length and 4 feet in breadth. In the open space immediately
after the counter, the dead body of the deceased was found lying in a
pool of blood, having its head on the northern side and legs on the
southern side.
19. PW 1 further states that for security purpose, CCTV cameras
were installed in the Bar on 21122012, consisting a system of eight
cameras and one Digital Video Recorder (DVR). The first camera is
installed towards left side of the extreme corner of the hall, over the
wall, situated behind the counter. This camera used to record the
visual activities on the counter and entries in the hall. There is space
of 15 to 20 square feet between the counter and the tables of the
customers. The distance between the counter and the tables of the
customers is 5 to 6 feet. The second camera is installed on the beam,
attached opposite to the wall where the first camera is installed. This
camera covers half portion of the hall. The third camera is installed
in the hall and used to cover the passage towards lawn. The fourth
camera is installed in the kitchen. The fifth camera is installed in the
godown on the first floor.
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20. About installation and functioning of CCTV cameras in the
Bar, PW 1 states that the said system was purchased by him from ITG
Solution Company on 21122012 for an amount of Rs.39,100/ and
produced the receipt at Exhibit 84. DVR of the said system was
installed at the counter and it contains a chip of 500 GB. DVR also
contains Hard Disk. The footages of all cameras are being stored in
DVR. The DVR has a capacity to store the footage of 10 to 15 days.
Thereafter recent footage is stored and footage of first day is deleted
automatically. He states that “Sometimes I used to see the recorded
footages and the system used to remain on 24 hours.” PW 16 Rupali
states that after preparing spot panchanama,
the Manager PW 1 Raghuveer of the Bar showed her the cameras
installed in the Bar, the description of which she mentioned in the
panchanama. Manager showed us LCD TV wherein the live video of
cameras were being displayed. She states in para 3 that “I have
prepared rough sketch of the spot including location of cameras. The
sketch of spot of the incident is the same. These bear my signatures.
They are marked as Exhibits 166 and 167.”
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21. PW 16 further states that after receiving the information
from the Bar owner, the Expert, who installed the CCTV system, was
called. The name of the said Expert is Shubham Narayan Padgilwar
(PW 14). PW 17 states that “he told me that he used to visit Seven
Hills Bar and to see the proper working of cameras. He saw the
cameras and told us that they are working properly. He told that
recording of cameras is being recorded in DVR.” PW 14 Shubham
was working in ITG Solution Company, which is engaged in
installation of CCTV camera and thumb impression machine, apart
from dealing with development of software and security system. He
states that “In December 2012, we installed CCTV camera in Seven
Hills Bar. We had installed eight cameras there. Four cameras were
of IR Dom and four cameras were of IR Bullet. In the said system,
there was one DVR, containing Hard Disk of 500 GB for the storage
of video recording. All the cameras were connected with DVR by
cable. In front of counter, one LCD TV was there. The DVR was
connected to the said LCD TV for viewing video recorded. One
camera was installed at the entrance gate. One camera was installed
on wall behind the counter. Two cameras were installed in the hall.
One camera was installed in the kitchen and one in the godown at
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the first floor. Two cameras were installed behind the door in open
space.”
22. PW 14 Shubham further states that the Hard Disk was of
the capacity of storage of video recording of 15 days. After the
recording of 15 days, video recording of camera of first day, is
automatically deleted from the storage and video recording of
camera of 16th day is saved. He states that “I checked the
picturization of all the cameras on LCD TV. All cameras were
working properly. I set the time and date in the system. I started
recording by all 8 cameras. I also checked and found that video
recording is properly being stored. After installation, I apprised the
Bar Manager the procedure of operating system. We used to visit
once in a week to verify whether the system is working properly.
I also visited Seven Hills Bar for verification and found that the
system was working properly. I also enquired on phone from Seven
Hills Bar and found that the system is working properly.”
Our findings on the spot of incident, its surroundings
and installation in the Seven Hills Bar :
23. In our view, the spot of incident, its surroundings,
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installation of CCTV cameras and their functioning at the time of
incident on 1012013 at 5.30 p.m. in the Seven Hills Bar are
completely established on the basis of the oral evidence of witnesses
PW 1, PW 3, PW 14, PW 15, PW 16 and the documents at Exhibits
160, 162, 163, 84, 166 and 167. There is no challenge to it in the
crossexamination. The evidence is corroborative and we do not
finding any reason to discard it. We find such a view taken by the
Sessions Court, relying upon the oral evidence of PW 1 Raghuveer,
PW 2 Raju, PW 3 Sitaram, PW 14 Shubham, PW 15 Sachin,
PW 16 Rupali and Exhibit 84 receipt, to be legal, correct and proper.
Arrest of the accused persons :
24. The case of the prosecution is that two knives and two
vehicles were used in the crime. Accused No.1 Tushar came out of
the Beer Bar with a bloodstained knife in his hand and along with
accused No.5 Bhupesh and accused No.4 Amol, sat in a car, which
was driven by accused No.3 Lashu and fled away from the spot.
Accused No.2 Kunal was having bloodstained knife in his hand and
he occupied a seat of a pillion rider on a twowheeler, of which
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accused No.6 Sameer was a rider. Accused No.1 Tushar and
accused No.2 Kunal were arrested by Suresh Dambre on 1112013
at 05.30 hours vide arrest memos at Exhibits 179 and 180
respectively. Accused No.3 Lashu, No.4 Amol and accused
No.5 Bhupesh were arrested subsequently on 1112013 vide
Exhibits 176, 177 and 178 respectively. Accused No.6 Sameer was
arrested on 1712013 vide arrest memo at Exhibit 186. They
continue to remain in jail till today.
Discovery under Section 27 of the Evidence Act by
accused No.1 Tushar :
25. Exhibit 138 is the confessional statement under
Section 27 of the Evidence Act, of the accused No.1, and
Exhibit 139 is the seizure memo of knife, having total length of
14.5 inches, of which the blade was of 9.5 inches and the grip was of
5 inches. The seizure memo shows the blood stains on the blade as
well as the grip of the said knife. Article 16 is the blue coloured
jeans of 'Wrangler', and Article 17 is the black coloured full shirt,
having white strips, containing blood stains, were also seized under
seizure memo at Exhibit 139.
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26. PW 18 Vitthal Salunke is the Investigating Officer and in his
oral evidence he states in para 3 that on 1212013, the accused
No.1 Tushar told him that he is intending to make voluntary
statement. PW 18, therefore, arranged for two panchas through
constable, one of which was PW 9 Lalit Meshram. PW 9 Lalit states
in his oral evidence that he agreed to act as a panch at the request of
the Police Inspector. He states that at about 4.30 to 4.45 p.m. he
went to the Police Station Sakkardara and the Police Inspector called
one accused and asked his name. He was Tushar Dalal. He states
that the Police Inspector told us that the said accused had hidden the
articles and he is going to discover it. The statement of the accused
was reduced in writing in memorandum panchanama of 1212013,
marked as Exhibit 138.
27. PW 9 states that he along with one another panch, Police
Inspector and other staff and the accused Tushar sat in one white
coloured Jeep and went to Sakkardara Chowk, then to Chhota
Tajbag, then to Tukdoji square and thereafter in front of Ajni Police
Station as per the direction of the accused. He further states that
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after reaching Ramteke Nagar, the accused asked to take turn and
accordingly the vehicle was turned and it was stopped on kaccha
road. All of them alighted from the vehicle. The accused along with
one constable were ahead and behind them the police and the
panchas. There was heap of soil and there was ditch, full of water.
There was one big stone on the heap. Accused moved the said stone
beside. Beneath the said stone, accused took out jeans pant, shirt
and one knife. The accused showed articles to them. There were
blood stains on the jeans pant, shirt and knife. Police took
possession of the articles and then they returned towards Jeep. The
articles were wrapped in the separate brown colour envelope which
was signed by the panchas, accused and the Police Inspector.
28. PW 9 further states that the seizure memo
dated 1212013 shown to him was prepared, bearing his signature,
marked as Exhibit 139. He identified the clothes seized in the Court
as also the knife. The knife seized from accused No.1 Tushar is
marked as Article 1A, whereas his jeans is marked as Article 16 and
the shirt as Article 17. PW 9 thus corroborates the evidence of
PW 18 Vitthal Salunke. There is no crossexamination on all these
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points. Relying upon the evidence of PW 9 and PW 18, it has to be
held that the document at Exhibit 139 is proved and the discovery of
knife as Article 1A and the clothes as Articles 16 and 17 of the
accused No.1 Tushar at Exhibit 139 becomes admissible in evidence.
Discovery under Section 27 of the Evidence Act by
accused No.2 Kunal :
29. PW 18 Vitthal Salunke, the Investigating Officer, states in
para 4 of his evidence that on 1312013, the
accused No.2 Kunal Maske told him that he is intending to make
voluntary statement and, therefore, two panchas were arranged, one
of which was PW 11 Akash Dhawale. PW 11 Akash states in his
evidence that he was asked the willingness to act as panch which he
expressed and accordingly when he went to the Police Station
Sakkardara, the constable brought one accused who told his name as
Kunal Maske. PW 11 identifies him in the Court.
The accused No.2 Kunal told that he would take out the knife which
is used in the crime and clothes which he wore at the time of
committing crime. The memorandum panchanama at Exhibit 146
was prepared.
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30. PW 11 states that he along with other panch, the accused
No.2 Kunal, constable and PSI Salunke left the Police Station
between 11.15 and 11.30 a.m. by the Government vehicle and
through Tiranga Chowk, Jagnade Chowk, Gangabai Ghat by cement
road, the accused asked to stop the vehicle in front of Syyed Ali
Dargah. All of them alighted from the vehicle. The accused was
heading them and all others followed him. The accused took them
in front of his house and knocked the door. One lady opened the
door. The accused called her as mother and went inside. There was
a speaker box on the loft ( sajja ). The accused No.2 took out the
knife behind the speaker box and gave it to PSI Salunke.
PSI Salunke measured the said knife. The drawing of it was drawn.
The knife was wrapped in Khaki envelope and it was sealed with
lock seal. The seizure memo at Exhibit 147 is proved to have been
drawn by PSI Salunke in presence of PW 11 Akash. There is no
crossexamination on these points. Relying upon the oral evidence
of PW 11 and PW 18, it has to be held that the documents at
Exhibits 146 and 147 are proved. Consequently, discovery of knife
as Article A2 vide Exhibit 147, at the instance of accused
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No.2 Kunal becomes admissible in evidence.
Discovery under Section 27 of the Evidence Act by
accused No.5 Bhupesh @ Rinku :
31. Exhibit 181 is the confessional statement of
accused No.5 Bhupesh on 1412013 under Section 27 of the
Evidence Act, and Exhibit 182 is the seizure memo of 'Ritz' car,
having registration No.MH31 EA 6696. It is the name of
Dr. Vitthal Moritam Chitkule, the father of accused No.5. The
photostat copies of tax invoice, RC book and insurance of the said car
are marked as Exhibit 183. PW 18 Vitthal, the Investigating Officer,
states that accused No.5 made a voluntary statement that he is going
to show the place where he has kept the vehicle used in the crime.
He proves Exhibits 181 and 182. He states that he went along with
the accused No.5, panchas and the staff in the Government vehicle,
and the accused No.5 showed the way and took them in front of
Shyam Palace Building, Congress Nagar Square. The vehicle was
stopped. All of them alighted from the vehicle. The accused No.5
showed the car besides the said building. PW 13 Jagdish Wankhede,
a panch witness, admits his signatures on seizure panchanama of car
at Exhibit 153 and on the seizure memo of clothes of accused No.5 at
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Exhibit 154 and also on Exhibits 155 and 156, but denies the
contents of it.
Discovery under Section 27 of the Evidence Act by
accused No.6 Sameer :
32. According to PW 18 Vitthal, accused No.6 Sameer intended
to make a voluntary statement on 1912013 that he is going to show
the place where he has kept the bike used in the crime. Two panchas
were arranged, one of whom was PW 12 Suresh Gupta, and the
memorandum of panchanama under Section 27 of the Evidence Act
was prepared at Exhibit 148. It was signed by him, panchas and the
accused No.6. All of them went in the Government vehicle and the
accused No.6 showed the way and took them near Shrikrishna. The
vehicle was stopped and all of them alighted from it. The accused
No.6 went near one house and knocked the door. One middleaged
person came out of the house and the accused No.6 called him as
'Papa'. Outside the house, the accused No.6 showed one covered
bike, i.e. 'Hero Honda Splendor', bearing No.MH31 AW 7400.
PW 18 further states that after minutely observing the bike, some
blood stains were found on the pillion seat cover, and the same were
collected with the help of cotton, which was sealed in one plastic
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bag. The bike was seized under the seizure panchanama at
Exhibit 149. PW 18 is completely supported by
PW 12 Suresh Gupta, a panch witness, to prove Exhibit 149. The
bike was standing in the name of Suresh Pandurang Katkar, the
father of the accused No.6. The tax receipt and the original invoice
of the vehicle were seized under the seizure panchanama at
Exhibit 188.
Seizure of the clothes of the deceased :
33. PW 18 states that on 1112013, he seized the clothes of the
deceased from Police Constable Premkumar under the seizure
panchanama in presence of panchas, bearing his signature and
marked as Exhibit 152A. The white coloured half shirt, sando
baniyan, jeans pant, underwear, pair of shoes, blue coloured socks,
chocolate coloured belt, white coloured handkerchief and wrist
watch of 'Titan' were shown to him and he identified the said items.
All these items were marked as Exhibits 18 to 26.
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Forwarding of clothes and articles seized and sealed, to
the Chemical Analyzer for opinion :
34. PW 18 further states that “On the same day (i.e. 1912013),
I sent the clothes of the accused and the deceased and the blood
samples of the accused and the deceased with my covering letter to
RFSL, which were kept in Malkhana .” The blood samples were
sealed by CMO, who affixed his seal impression on the covering
letter dated 1912013, marked as Exhibit 189. PW 18 took out the
weapons and samples from Malkhana and sent to the Chemical
Analyzer for analysis under the covering letter dated 422013 at
Exhibit 207.
Our findings on the issues of arrest of the accused
persons and discovery under Section 27 of the Evidence
Act at their instance :
35. The entire evidence on the arrest and discovery from the
accused persons, as narrated above, is not seriously challenged in the
crossexamination. The accused Nos.1, 2, 3, 4 and 5 were arrested
on 1112013. Weapons from accused Nos.1 and 2 were seized vide
Exhibits 138 and 139 on 1212013 and on 1312013 vide
Exhibit 147 respectively. Seizure from accused Nos.5 and 6 was on
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1412013 vide Exhibit 182 and on 1912013 vide Exhibit 149
respectively. The clothes seized were forwarded on 1912013 vide
Exhibit 189 to the Regional Forensic Laboratory at Nagpur. The
weapons seized and sealed were taken out from Malkhana and sent
to the Chemical Analyzer for analysis under covering letter
dated 422013 at Exhibit 207. There is no question of any
explanation in respect of clothes and articles seized, or the delay, if
any, as alleged. The defence under Section 313 of the Code of
Criminal Procedure is that it is false. There is a corroborative
evidence available on record and discussed above. We have,
therefore, no hesitation to accept the entire evidence and we do not
find any valid reason to discard it. We concur with such a view taken
by the Sessions Court. What is the effect of it and in what manner it
forms a chain of circumstantial evidence against the accused, can be
seen at a later stage.
Query Report in respect of weapons seized :
36. PW 10 Dr. Nitin Shyamrao Barmate conducted post mortem
over the body of deceased Jitu and has described 11 stab injuries,
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12 incised wound, constituting external injuries and internal injuries
in thorax, abdomen, cavity, stomach and kidney. He has proved the
post mortem report at Exhibit 141. In response to the requisition
letter dated 222013 at Exhibit 142 for weapon query in respect of
two knives – Articles 1 and 2 – sent to him, he gave his opinion
on 222013 at Exhibit 143. Paras 4, 5 and 6 of his opinion being
relevant, are reproduced below :
“4] First knife was having blade and handle. Length of
blade was 24 cm., breadth 5 cm, thickness .1 cm, 1 edge was
sharp other edge sharp and distal 1/3 portion and blunt and
serrated, pointed tip, reddish brown stains present over both
sides of the blade. Joint of blade and handle was fixed.
Handle of the said weapon was yellowish metal and wooden
covering, length 13 cms, breadth 6.5 cms and thickness
1.5 cm. Hilt of size 9 cm in length and 15 m breadth.
Reddish brown stains present over the handle. ”
“5] Second knife was having blade and handle. Length
of blade was 19 cm, breadth 4 cm, thickness .1 cm, 1 edge was
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sharp, other edge sharp and distal 1/3 portion and blunt and
serrated pointed tip, reddish brown stains present over both
sides of the blade. Joint of blade and handle was fixed.
Handle of the said weapon was yellowish metal and wooden
covering, length 11 cms, breadth 5.5 cms and thickness 1 cm.
Hilt of size 7 cm in length and 1 cm in breadth. No evidence
of stains or foreign body. ”
“6] All injuries No.1 to 24 mentioned in column no.17 of
PM report are possible by first knife. Injuries No.1, 4, 5, 9,
11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, mentioned
in column No.17 of PM report are possible by second knife. ”
The report issued is along with diagrammatic representation
of the weapons, which is reproduced below :
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37. Exhibit 66 is the report of the Chemical Analyzer in respect
of the blood sample of the accused No.2 Kunal, showing his blood
group as 'A'. Exhibit 72 is the report of the Chemical Analyzer in
respect of the blood sample of the accused No.1Tushar, showing his
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blood group as 'A'. The report of the Chemical Analyzer at Exhibit 68
in respect of the blood found on the knives seized from the accused
Nos.1 and 2 shows the human blood. Exhibit 69 is the report of the
Chemical Analyzer, showing the blood detected on Articles 16 and
17, the clothes of the accused No.1 Tushar, as of human, and the
group of it, is found to be inconclusive. The blood on the clothes
seized from the person of the deceased is found to be of group 'B' in
Exhibit 69, the report. Exhibit 69 shows that the blood stains on the
seized pant of accused No.3 Lashu were washed and no blood was
detected on his full shirt. On the clothes of accused No.5 Bhupesh,
No.4 Amol and No.6 Sameer, no blood was found.
Our findings on the weapons seized and the report of
the Chemical Analyzer :
38. The oral evidence of PW 10 Dr. Nitin, the post mortem
report at Exhibit 141, the query report at Exhibit 143 about two
knives, viz. Articles 1 and 2, and the reports of the Chemical
Analyzer at Exhibits 66, 68, 69 and 72, constitute an incriminating
evidence proved against the accused Nos.1 and 2. In response to the
question Nos.114 in respect of report at Exhibit 143, put in the
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statement under Section 313 of the Code of Criminal Procedure is
that “I do not know”; whereas in response to the question Nos.186 to
196 regarding the Chemical Analyzer's reports at Exhibits 66, 68, 69
and 72 is that “It is false”. The discovery of the weapons of knife
under Section 27 of the Evidence Act at the instance of accused
No.1 Tushar and accused No.2 Kunal at Exhibits 139 and 147 is
established and its user in crime is established as per query report at
Exhibit 143 and the reports of Chemical Analyzers at Exhibits 66, 68,
69 and 72. We concur with such a view taken by the Sessions Court.
39. It may have happened that some of the panch witnesses on
the weapons or clothes or other articles seized have not supported
the story of prosecution or have become hostile. In our view, once
the discovery is proved by examining the Investigating Officer, who
seized the weapons, clothes or other articles from the accused
persons under Section 27 of the Evidence Act and nothing is brought
adverse to the prosecution in his crossexamination, there cannot be
any hesitation to accept his evidence to hold that the discovery or
seizure is established. This is in concurrence with the view taken by
the Sessions Court.
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40. In this regard, we may usefully refer to the recent decision
of the Apex Court in the case of Mukesh and another v. State (NCT of
Delhi) and others , reported in (2017) 6 SCC 1 . Paras 448 to 450 of
the said decision being relevant, are reproduced below :
“ 448. While the prosecution has been able to prove the
recoveries made at the best of the accused, the defence counsel
repeatedly argued in favour of discarding the recoveries made,
on the ground that no independent witnesses were examined
while effecting such recoveries and preparing seizure memos.”
“ 449. The above contention of the defence counsel urges
one to look into the specifics of Section 27 of the Evidence Act.
As a matter of fact, need of examining independent witnesses,
while making recoveries pursuant to the disclosure statement
of the accused is a rule of caution evolved by the Judiciary,
which aims at protecting the right of the accused by ensuring
transparency and credibility in the investigation of a criminal
case. In the present case, PW 80 SI Pratibha Sharma has
deposed in her crossexamination that no independent person
had agreed to become a witness and in the light of such a
statement, there is no reason for the courts to doubt the
version of the police and the recoveries made.”
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“ 450. When recovery is made pursuant to the statement of
the accused, seizure memo prepared by the investigating
officer need not mandatorily be attested by independent
witnesses. In State (Govt. of NCT of Delhi) v. Sunil,
[(2001) 1 SCC 652 : 2001 SCC (Cri) 248], it was held that
nonattestation of seizure memo by independent witnesses
cannot be a ground to disbelieve recovery of articles' list
consequent upon the statement of the accused. It was further
held that there was no requirement either under Section 27 of
the Evidence Act or under Section 161 CrPC to obtain
signature of independent witnesses. If the version of the police
is not shown to be unreliable, there is no reason to doubt the
version of the police regarding arrest and contents of the
seizure memos.”
Oral evidence of PW 6 Vinay :
41. We now consider the oral evidence of
PW 6 Vinay Ramraj Dubey, a chance witness, about its
trustworthiness. PW 6 states that on the day of incident,
i.e. 1012013, he wanted to have beer at the Seven Hills Bar and
hence he proceeded at 6 to 6.30 p.m. In order to see a missed call, he
stopped just before Seven Hills Bar, outer wall of petrol pump, near
small tree. At that time, he saw the accused No.3 Lashu Faye
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(Laxman) coming out of the said Bar hurriedly and sitting in the car.
The car then moved from the place and stopped at some distance
away, proceeding towards Chhota Tajbag Chowk. The next was the
accused No.6 Sameer Katkar, who came out of the Bar on a two
wheeler. The third was the accused No.2 Kunal Maske, possessing a
bloodstained knife, who sat on the pillion seat on the vehicle of
Sameer Katkar. After some time, the accused No.1 Tushar Dalal came
out of the Bar, holding in his hand a bloodstained knife. The accused
No.5 Rinku (Bhupesh) and the accused No.4 Amol Mandale also came
along with Tushar and all of the three sat in the car, which was
standing ahead of Bollywood Centre Point Hotel and the car left. He
claimed to be knowing the accused as criminals in the locality and
identified all of them in the courtroom. PW 6 admits in his
examinationinchief that though he stayed at that place for some
time and came to know that somebody was murdered, he did not
speak of it to anybody. He was knowing that the area comes within
the jurisdiction of Police Station Sakkardara, and on the next day
morning at about 9 to 9.30 a.m., he went to Police Station
Sakkardara and stated the incident to the police. His statement was
typed on the computer in Marathi and was read over to him by
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translating it in Hindi.
42. PW 6 Vinay states that Bhande Plot Chowk is towards north
of the said Bar, at the distance of 300 meters. The distance between
Chhota Tajbag Chowk and Bhande Plot Chowk is about one
kilometer. There is a road in front of the Seven Hills Bar, flowing
from Bhande Plot Chowk to Bollywood Centre Point Hotel, and
thereafter up to Tpoint of Chhota Tajbag, the road has a cement
divider. He states that when one goes to Chhota Tajbag from Seven
Hills Bar, there is a road towards left after the petrol pump.
Bollywood Centre Point Hotel is facing road, which ends towards
Chhota Tajbag Chowk, where the divider ends at the Tpoint. He
states that if one has to go to Bhande Plot Chowk from Bollywood
Centre Point Hotel, he has to take Uturn.
43. PW 6 further states that he stayes at Dwarkapuri, and
Bhande Plot Chowk is about 4 to 5 kms. away from his house. He
admits that in the locality where he resides, there are 5 – 6 Beer Bars.
He states that he filled petrol in his two wheeler from the petrol
pump, which is at the distance of 25 to 30 feet from Bollywood
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Centre Point Hotel. He volunteers that the petrol pump is facing 25
to 30 feet on the road and the Bollywood Centre Point Hotel is facing
on the road about 300 to 325 feet. He then took Uturn, and since
there was a call on his mobile, which he missed, he stopped just
before Seven Hills Bar, outer wall of petrol pump, near small tree, to
see the call. It is from that place he claims to have seen the accused
persons at the distance of 25 – 30 feet.
44. In the crossexamination, PW 6 Vinay claims ignorance about
the existence of Battery Shop, Pan Thela, Tea Stall or Fabrication
Shop, near the petrol pump where he filled the petrol in his two
wheeler. He also claims ignorance about existence of certain
landmarks, confronted to him in the crossexamination. He states
that “I cannot assign any reason as to why the fact that he filled petrol
in his two wheeler from the petrol pump besides Bollywood Centre
Point Hotel and thereafter he took Uturn, does not find place in his
statement”. He states that “Since the police did not ask him about it,
I did not state”. He states that “I had stated to the police that Lashu
left from there and stopped some distance away, Lashu was
proceeding towards Chhota Tajbag Chowk and thereafter Sameer
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Katkar came to Seven Hills Bar and thereafter Tushar Dalal came out
of the said Bar and he was holding bloodstained knife, all the three
sat in the car by running, which was standing ahead of Bollywood
Centre Point Hotel, the car left, I was frightened and I stayed there for
some time”. However, he further states that “I cannot assign any
reason as to why these facts do not find place in his statement to the
police”. He states that “I cannot assign any reason why the portion
marked 'A' is appearing in my statement”. He denies the suggestion
that he is the childhood friend of Jitu Gawande and that he never
went to Seven Hills bar on 1012013 and that he was a regular
witness of Sakkardara Police Station. He denies the suggestion that –
(1) he had not seen the incident and police had falsely planted him as
an eyewitness, (2) he never visited Sakkardara Police Station prior to
incident, or (3) he acted panch in murder case of Sheetal Kale.
45. PW 18 Vitthal Salunke was the Investigating Officer, who
took over the investigation on 1112013 from PW 16 Rupali
Bawankar, who conducted initial investigation in the matter.
In para 30 of his crossexamination, he states that “I visited Seven
Hills Bar on 1012013 at 7 p.m. to 8 p.m., but did not take part in
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the investigation”. He started investigation on 1112013 at 7 p.m.
He recorded the statement of PW 6 Vinay on 1112013 from
9.30 a.m. to 9.45 a.m. In para 29, he states that the portion
marked 'A' in the statement of PW 6 Vinay was recorded as per his say
and it is at Exhibit 210. The said statement in Marathi, marked as
portion 'A', is reproduced below :
“ uarj iksfylkadMwu eyk ekfgrh feGkyh fd] [kqu >kysyk ble gk
ftrsanz xkoaMs vkgs- ”
[Later on I came to know from the Police that a person
murdered is Jitendra Gawande]
He further states that PW 6 had not stated that “I filled petrol in my
two wheeler from the petrol pump besides Bollywood Centre Point
Hotel and took Uturn, there was a call on my mobile which
I missed to see, I stopped just before Seven Hills Bar, outer wall of
petrol pump and near small tree, Lashu left from there and stopped
some distance away, Lashu was proceeding towards Chhota Tajbag
Chowk, thereafter Sameer Katkar came out of Seven Hills Bar,
thereafter Tushar Dalal came out of Seven Hills Bar and he was
holding bloodstained knife (the omission is in respect of coming out
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of Seven Hills Bar and bloodstained), all the three sat in the car by
running which was standing ahead of Bollywood Centre Point
Hospital, the car left, I was frightened and I stayed there for some
time, I returned back to house as I was frightened, I did not tell the
incident to anybody as I was frightened and I could not sleep for
whole night”.
46. In the crossexamination, PW 18 Vitthal, the Investigating
Officer, was shown rough sketch of the site location map, taken on
record and marked as Exhibit 209. He categorically states that the
position shown in the map is correct. Perusal of the map at
Exhibit 209 shows that to the north of Seven Hills Bar and
Restaurant, there is Bhande Plot Chowk, and the Bar is located on the
road flowing from Bhande Plot Chowk to Chhota Tajbag Chowk
Tpoint. Adjacent to Seven Hills Bar on the eastern side, is the place
of Ahmed Classes, and on the west side, is the Supreme Services. The
Indian Oil Petrol Pump is adjacent on the western side of Supreme
Services. The map at Exhibit 209 further depicts that adjacent to the
western side of Supreme Services, is the Hindustan Steel Traders, and
thereafter a lane before and adjacent to Bollywood Centre Point
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Hotel. Thus, there is a plot in between the Indian Oil Petrol Pump
and Seven Hills Bar and Restaurant on the western side.
Our findings on the oral evidence of
PW 6 Vinay Dubey :
47. Except the aforesaid evidence, there is no other evidence on
this point, relevant to be considered. We, therefore, proceed to
appreciate the evidence to test the veracity of the testimony of
PW 6 Vinay. On the eastern side of Seven Hills Bar and Restaurant is
Bhande Plot Chowk and on the western side of it is Chhota Tajbag
Chowk. This is very clear from the site location map at
Exhibit 209. The said Bar is on the road from Bhande Plot Chowk to
Chhota Tajbag. The road is 30meter wide and divided by a cement
divider in two parts – one for going to Tpoint at Chhota Tajbag from
Bhande Plot Chowk, and other, after Uturn, from Tpoint at Chhota
Tajbag, return to Bhande Plot Chowk. One cannot go to the other
side of the road divider, unless there is a crossing provided. It is not
the evidence that there is any crossing provided in the divider for the
vehicles. Even the map at Exhibit 209 does not show any crossing.
Once Seven Hills Bar is crossed while coming from Bhande Plot
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Chowk, and Uturn is taken from the Tpoint at Chhota Tajbag, one
cannot reach to the said Bar again unless, either another Uturn is
taken from Bhande Plot Chowk after crossing a distance of one
kilometer or comes back from Tpoint at Chhota Tajbag. This position
becomes very clear and established from the reading of oral evidence
of PW 6 Vinay in the light of the site location map at Exhibit 209,
proved by PW 18, the Investigating Officer.
48. The Seven Hills Bar is located on the left side of the road
flowing from Bhande Plot Chowk and going to Chhota Tajbag Chowk,
which is clear from the site location map at Exhibit 209. The vital
evidence as to the end from which PW 6 Vinay was going to the
Seven Hills Bar – whether Chhota Tajbag Chowk on the western side
or Bhande Plot Chowk from eastern side – is totally absent. It is not
the case of PW 6 that he went to Seven Hills Bar by entering wrong
side from Chhota Tajbag Chowk, located on the western side of the
said Bar. He also does not say that he went to the said Bar from
Bhande Plot Chowk on the eastern side.
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49. If it is assumed that he was going from Chhota Tajbag
Chowk on the western side and had reached the petrol pump near
Seven Hills Bar, it is not the version of PW 6 that before taking
Uturn, he witnessed the incident. Taking of Uturn means he was on
return from the Seven Hills Bar and also the petrol pump to Chhota
Tajbag and turning to the other side of the divider on the Tpoint to
reach Bhande Plot Chowk. In such situation, unless he takes another
Uturn from Bhande Plot Chowk after crossing the distance of one
kilometer and thereafter half kilometer, he will not reach to the Seven
Hills Bar. It is not the version of PW 6 that he took another Uturn
from Bhande Plot Chowk to reach the said Bar. In such a situation,
PW 6 could not be near Seven Hills Bar or the petrol pump, but he
went away from it, at the time of the incident.
50. If it is assumed that PW 6 went to Seven Hills Bar from
Bhande Plot Chowk on the eastern side, he will have to cross the said
Bar to reach to the petrol pump located on the western side of the
Bar. It is not his version nor it appears from the map at
Exhibit 209 that the petrol pump is located on the eastern side of the
said Bar. It is also not his version that he went to the petrol pump
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after crossing the said Bar. Be that as it may, it is his version that after
filling petrol, he took Uturn after Bollywood Centre Point Hotel,
which means that he went away from the said Bar up to Chhota
Tajbag on the western side and thereafter to the other side of road
divider. It is not the version of PW 6 that he witnessed the incident
before taking Uturn after Bollywood Centre Point Hotel. In such a
situation also, PW 6 could not be near the said Bar or the petrol pump
at the time of incident.
51. The positive case of PW 6 is that he stopped just before the
Seven Hills Bar, outer wall of petrol pump and near small tree, to see
a missed call at the distance of 25 to 30 feet and witnessed the
incident. It is, therefore, probable that he was going to Seven Hills
Bar from Bhande Plot Chowk on the eastern side. Though the petrol
pump shown in Exhibit 209, a site location map, is on the western
side of the said Bar, it is not adjacent to it, but there is one plot of
Supreme Services in between the said Bar and the petrol pump.
There is no evidence to show the width of this plot, though the width
of the plot of the petrol pump, as deposed by PW 6, is 25 to 30 feet,
facing the road. In such a situation, it is improbable that PW 6 was at
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the distance of 25 to 30 feet on the western side of the said Bar and
from the outer wall of the petrol pump, adjacent to the said Bar, he
witnessed the incident.
52. The theory of witnessing the incident from the petrol pump,
taking Uturn and thereafter checking missed call, is a complete
omission, which has been pointed out in earlier paras, is established.
There is complete improvement in the version of PW 6. His previous
knowledge about the accused persons has become doubtful. Leaving
apart inherent inconsistencies, the version of PW 6 Vinay becomes
untrustworthy and unbelievable. Not only that, but his acquaintance
with the accused persons is doubtful. The presence of PW 6 on the
spot at the time of incident seems to be also doubtful. The Sessions
Court ought not to have treated him as an eyewitness to establish the
identity of the accused persons. We do not concur with the view
taken by the Sessions Court to accept the version of PW 6 Vinay as
trustworthy.
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Finger Print of Accused No.1 Tushar :
53. PW 1 Raghuveer, the Manager of the Seven Hills Bar,
deposed that the incident took place on 1012013 at about 5 to 5.30
p.m. when four people entered the Bar. One of them came to his
counter and asked counter peg of Rum. PW 1 prepared a peg (liquor)
and gave it to him in a glass. The other three people were standing
behind him. In para 8, he deposes after watching the footage of
camera No.1 in which the incident, which happened in the Bar,
appears. He states that “In footage of camera no.1, on counter, there
are glasses on right side”. In the crossexamination, a suggestion was
put to him in para 26, in response to which, he states that “It is not
correct to say that the glasses which were lying on the counter broke
down in the said quarrel”. Except this, there is no crossexamination
on this aspect.
54. PW 16 Rupali, the first Investigating Officer, states in para 2
of her deposition as under :
“ 2] Manager told me that the glass which were kept on the
counter used by the assailants. Investigation Car had come
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there. Finger Print Expert took the finger prints from the
glass. Thereafter, the said glass were sealed. I also mentioned
location of camera in spot panchanama. Accordingly, spot
panchanama was prepared. I and panchas were put signature
on it. Spot panchnama now shown to me is the same. It bears
my signature and the panchas. It is marked at Exhibit 163. ”
Exhibit 163 is the spot panchanama under which four glasses
used for serving peg were seized.
55. PW 8 is Sunil Laxman Lonarkar, working as Junior Expert
API (finger print in I Car Unit Crime Branch, Nagpur). He states in
para 2 that on 1012013, he received message from police control
room at about 630 p.m. to visit the place of scene of crime of murder
at Seven Hill Bar, Nagpur. He states in para 2 that on 1012013, he
received the message from the police at about 6.30 p.m. to visit the
place of incident and, therefore, he along with the driver of the
vehicle and photographer went on the spot at about 7 p.m. API
Salunke and PSI Bawankar were there, who told him to check four
glasses kept on the counter of the Bar. In para 3, he states that
“I applied the universal powder on the said glasses with the help of
brush. Out of four, I could find the finger print on one of the glass.
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I encircled the said finger print and put my signature on it beside the
encircle on the glass. Photographer snapped photographs of the said
finger prints”. He states that the police gave him requisition and he
also issued spot inspection report dated 1012013 to the police,
which is at Exhibit 116 and it bears his signature.
56. Exhibit 116, which is the panchanama of four glasses on
which gray powder was applied, shows that on glass No.1, one finger
print was found, and on glass No.2 two finger prints were found. In
para 4, he states that after 2 – 3 days he received three photographs
of finger print of the said glasses, and out of it, he declared two
photographs as not fit for further process, and one photograph was
found fit for the process, as it contained 8 ridge character in the said
photograph. Exhibit 120 is the left thumb impression, marked as 'A1'
of accused No.1 Tushar, encircled with red ink, and Exhibit 127 is the
enlarged photograph of Exhibit 120. Exhibit 126 is the enlarged
finger print impression developed on drinking glass, marked as 'A'.
He states in his evidence that “During my examination, I found Nine
ridge characteristics of Exhibits 126 and 127 were matching”.
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57. Exhibit 128 is the report by the Deputy Director/Deputy
Superintendent of Police, Finger Print Bureau, CID, stating that out of
three chance finger prints, one chance finger print developed on the
glass ( dkpspk Xykl ) concerned in Sakkardara Police Station. It states
that the left thumb finger print on the F.I. Slip of
suspect (1) Tushar Sahebrao Dalal received for comparison.
Exhibit 129 is the report stating that out of three chance finger prints,
one chance finger print, marked 'A', developed on the glass is
identical with the left thumb finger print, marked 'A1' on the F.I. Slip
of suspect (1) Tushar Sahebrao Dalal received for comparison vide
letter No.604/2013, dated 2122013. Exhibit 131 is the statement of
reasoning and opinion in connection with crime in question, opining
that the chance finger print, marked 'A' is identical with left thumb
finger print, marked 'A1' on the finger impression clip of suspect –
Tushar Sahebrao Dalal.
Objection of the defence to the oral evidence of
PW 8 Sunil, Finger Print Expert, and his reports at
Exhibits 129 and 121 :
58. The objection to the admissibility of the evidence of
PW 8 Sunil, the Finger Print Expert, and the reports submitted by him
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at Exhibits 129 and 131 is that there is no evidence on record to show
as to when and how the finger prints of the accused No.1Tushar
were obtained at Exhibits 120 and 127, which were found matched
with the chance finger print. In this regard, paras 5 and 6 of the oral
evidence of PW 8 Sunil need to be seen, and hence the same are
reproduced below :
“ 5] I requested PS Sakkardara to send the finger
impression slip (specimen) of the suspected. On 1912013,
I received request letter of PS Sakkardara along with six finger
impression slips (specimen). I have brought the original
request letter. Witness produced the request letter, it is taken
on record and it is marked at Exh118. (On oral request of
witness the original letter is returned back to him after
verifying the xerox copy of the letter). On the said six finger
impression slips (specimen), there was no plain finger print of
the suspected and only rolled prints were there. Therefore,
I requested on telephone to send fresh finger print impression
slips containing plain print and roll print. I had also made
endorsement to that effect on the requisition letter Exh 118.”
“ 6] On 2222013, I received letter of P.S. Sakkardara
dt 2122013 along with finger print impression slips
containing plain print and roll print of six suspects. I have
brought the original letter. Witness produced the letter
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dt 2122013. It is taken on record and it is marked at
Exh119. (On oral request of witness the original letter is
returned back to him after verifying the xerox copy of the
letter). I have brought the original finger print impression
slips. Witness produced the six finger print impression slips,
these are taken on record and these are marked at
Exh120 to 125. (On oral request of witness the original letter
is returned back to him after verifying the xerox copy of the
letter). Chance finger print/photographs of finger print
collected from glass, was enlarged. Enlarge copy of photograph
of finger print collected from glass, now shown to me, is the
same. Enlarge copy is marked at Exh 126.”
The only crossexamination on the point is contained in
para 11, which is reproduced below :
“ 11] The earlier finger impression slips which I returned
back to police, are not on record. It is not correct to say that
as fresh finger prints were not sent to me along with letter
Exh 119, therefore, it is not mentioned so in the said letter. It
is not correct to say that letter Exh 118 and 119 are fabricated
by me in connivance with I.O.”
59. Query No.103 put to accused No.1Tushar and answer to it,
are reproduced below :
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“ Q.103 : It has further come in his evidence that on
22.2.2013 he received letter from PS Sakkardara along with
finger print impression slip containing plain print and roll
print of six suspects. What do you want to say about it?
Ans. : I do not know.”
60. The finger prints of all the accused were forwarded to
PW 8 Sunil under covering letter dated 2122013 at Exhibit 119,
received by PW 8 on 2222013. There is no objection to mark the
finger print of accused No.1 Tushar as Exhibit 120.
The crossexamination tries to raise a doubt about communications
at Exhibits 118 and 119 and without background, the suggestion is
that the said letters are fabricated. While recording the statement
under Section 313, in reply to a question about receipt of letter at
Exhibit 119 and finger prints at Exhibit 120, the stand is that
“I do not know.”
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Our findings on the issue of Finger Prints of
accused No.1 Tushar :
61. There is absolutely no crossexamination to raise any doubt
about the finger print at Exhibit 120 and enlarged at Exhibit 127 of
accused No.1Tushar, so obtained and forwarded under the letter at
Exhibit 119 to PW 8 Sunil, the Finger Print Expert, to compare it
with the chance finger print on Exhibit 126. There is no suggestion
that the finger prints of the accused No.1 Tushar were not obtained.
In the absence of any such crossexamination, we do not find any
reason to discard the oral evidence of PW 8, the documents at
Exhibit 120 and its enlargement at Exhibit 127 in respect of the
finger prints of the accused No.1 Tushar, and Exhibit 126 in respect
of chance finger print along with the report at Exhibit 131. We,
therefore, reject the contention of the accused that there is no
evidence to show that the finger prints at Exhibits 120 and 127 are
not of the accused No.1 Tushar. We hold that the prosecution has
proved the finger prints of accused No.1 Tushar, which established
his presence on the spot at the time of incident.
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Core Issue :
62. The identification of the accused persons as the assailants
in the present case constituting an unlawful assembly and conspiring
to commit an act of murder of Jitu Gawande on 1012013 between
17.45 and 17.56 hours in the Seven Hills Bar and Restaurant, is the
core issue to be decided in this case. Basically, there is no challenge
to the mode and manner in which an act of murder is committed, the
investigation carried out, and the arrest of and recovery from the
accused persons, and all these things are otherwise amply proved.
We now, therefore, turn to the core issue. The Sessions Court
essentially relied upon the oral evidence of PW 6 Vinay, a chance
witness, who saw the accused persons as the appellants fleeing away
from the spot of incident on the twowheeler and the car with knives,
stained with blood, in the hands of the two accused, namely, the
accused No.1 Tushar and the accused No.2 Kunal. We have already
found the evidence of PW 6 Vinay to be untrustworthy. We have
also held that the presence of the accused No.1 on the spot at the
time of incident is established on the basis of his finger prints found
on the glass of liquor in the said Bar.
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63. The other evidence available on record to identify the
accused as the assailants is the oral evidence of PW 19 Ms Puja, the
Scientific Officer in the Forensic Science Laboratory, Mumbai, who
proved her report at Exhibit 57, opining that the accused persons are
similar to the assailants, who committed the crimes in question. It is
based upon the photographs of the accused persons at Exhibits 197
to 202 and the persons selected as the assailants from the DVD,
marked as Article 18A, which is the backup or a copy of the footages
contained in the Hard Disk at Exhibit 1. The another evidence is that
of PW 4 Pramod, the brother of deceased Jitu Gawande, who
identified all the accused persons as the assailants and described the
role played by each of the accused in the crimes in question. This is
based on the CD, marked as 'X' for identification, or the DVD, marked
as Article 18A. We have, therefore, to see whether the photographs
at Exhibits 197 to 202 are proved. The another aspect is of the
admissibility of electronic evidence in the form of the DVD at Article
18A and the CD marked as 'X' for identification. All the arguments,
therefore, essentially revolve around it and we, therefore, proceed to
discuss it one by one.
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Consideration of electronic evidence in the form of
CD – 'X' marked for identification to establish the entire
incident of murder of Jitu at Seven Hills Bar :
64. PW 16 Rupali states in para 3 that “On our request,
Shubham showed us the recorded footage of the incident from DVR
on LCD TV. In footage recorded by camera no.7, we saw the
assailants came inside the Bar, thereafter, we saw the deceased came
inside the Bar. Thereafter we saw in the footage the assailants while
running away from the Bar.” PW 14 Shubham states in para 4 of his
deposition that “On the request of police, I showed them footage
recorded in CCTV system, on the LCD TV of Bar. I showed them
footage recorded after 500 p.m. to 530 p.m. In the said footage,
some people were assaulting one person.”
65. PW 16 Rupali states that “On enquiry, Shubham told us
that copies of the said footage can be done. I arranged a blank pen
drive and two DVD (CD). Shubham took the copy of said footages
from DVR in pen drive and copied it in DVD with the help of laptop.
We verified the pen drive and DVD in laptop and found the copies
were done properly. The said pen drive and two DVD were seized
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and sealed. On our request, Shubham took out Hard Disk from DVR
which was seized and sealed. DVR was also seized and sealed. DVR
Charging Wire, Mouse and Remote were also seized and sealed.
I and panchas signed on it. Seizure panchanama (Exhibit 99)
(Dated 1012013) now shown to me is the same. It bears my
signature and panchas. Its contents are correct. I had obtained the
bills of pen drive and DVD. The bills of pen drive and DVD now
shown to me are the same. It is marked at Exhibit 165.”
66. PW 16 Rupali identifies all the articles seized and her
deposition in para 7 being relevant, is reproduced below :
“ 7] I can identify the articles seized by me.
Article1 DVR, Article4 Hard Disk, Article7, Adapter,
Article10 Mouse, Article13 Remote, now shown to me are
the same which were seized by me. Label Article2, 5, 8, 11,
14 and 15 bear my signature. These are the same whereby
the above said articles respectively were sealed. (CD(DVD) X
for identification is now played in laptop. The footage of
camera nos.1, 2 and 7 are seen by the witness.) The
footages contained the CD(DVD) X for identification are the
same which were copied from the DVR to Pen Drive and Pen
Drive to DVD.”
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PW 5 Kailash Gulhane is a panch witness on the seizure
panchanama at Exhibit 99 and was called by PW 16 Rupali from
cyber cafe near the said Bar. He says that on 1012013,
PW 14 Shubham showed footages of all cameras one by one in the
said LCD TV. He saw the footages and thereafter in his presence,
PW 14 Shubham copied the data in footages in DVD and Pen Drive.
He saw the copied data on the laptop and he found it to be correctly
recorded in the Pen Drive and DVDs. All these articles were seized
and sealed in his presence. He says Hard Disk in DVR was of Toshiba
Company and it was taken out in his presence and sealed.
67. PW 14 Shubham further states in para 4 of his
examinationinchief that “On the request of the police, I prepared
copy of footage of three cameras from DVR and gave to the police.
For that purpose, police had provided me laptop, pen drive and two
CDs. Pen drive and CDs were brand new. I had provided copies of
footage, wanted by the police in pen drive. I had also copied the
wanted footage in two CDs from pen drive. I gave pen drive and
both CDs to the police. On enquiry by the police, I told them the
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footage are recorded in the Hard Disk of DVR. On the request of
police, I took out Hard Disk from the DVR and gave to the police. On
request of the police, I also detached DVR and provided to police.
Thereafter, police were engaged in the proceedings.
Our findings in respect of electronic evidence of
CD – 'X' for identification :
68. Immediately on 1012013 itself, within thirty minutes of
the occurrence of an incident, i.e. at 6.00 p.m., the police personnel,
led by PW 16 Rupali, the Investigating Officer, reached the spot. The
inquest and spot panchanamas were prepared. The installation and
locations of all the eight cameras were noted down in the sketch of
the spot at Exhibits 166 and 167. For the purposes of security, a
system of CCTV, consisting of eight cameras and one DVR containing
Hard Disk of 500 GB for storage of video recording, wellconnected
with the cables, was found installed and functioning properly. The
entire incident of murder of Jitu Gawande was recorded in the Hard
Disk at Exhibit 1, contained in the DVR. The Sessions Court accepts
the evidence of PW 14 and PW 15, the independent witnesses, who
have stated that the Hard Disk is of the same Company, which they
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had supplied and identified. The Sessions Court accepts such a view
corroborated by PW 5 Kailash and PW 16 Rupali, as all the witnesses
are found to be independent. We concur with such a view.
69. The evidence of PW 16 Rupali is supported by the oral
evidence of PW 14 Shubham and PW 5 Kailash Gulhane, a panch
witness. PW 16 Rupali, PW 5 Kailash and PW 14 Shubham identified
in their evidence before the Court the articles seized, viz. DVR, Hard
Disk, Adapter, Mouse and Remote, as also the CD, marked as 'X' for
identification, which was played in the laptop before the Court, from
which the footages from camera Nos.1, 2 and 7 were seen by the
witnesses. PW 5 Kailash, a panch witness, identifies the DVR as
Article 1 and label thereon as Article 2. He identifies envelope in
which DVR and label (Articles 1 and 2) were sealed in his presence.
He identifies Hard Disk as Article 4 and its label and envelope as
Articles 5 and 6 respectively. He identifies footages shown by
Shubham, i.e. DVDX played in the laptop as the same. We,
therefore, hold that the DVR, Hard Disk, Adapter, Mouse, Remote,
CD marked as 'X', produced before the Court are the same which
were seized and sealed under seizure panchanama at Exhibit 99 on
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1012013 on the spot of incident.
70. At the request of PW 16 Rupali, the Expert
PW 14 Shubham, showed the recorded footages of the incident from
DVR on LCD TV. In the footages, the assailants and the deceased
were seen inside the Bar. Some people were assaulting one person
and subsequently the assailants ran away from the Bar. On the
request of PW 16 Shubham the Expert PW 14, took the copies of the
footages from DVR in pen drive and copied it in DVD (CD) with the
help of laptop. The pen drive and DVD were verified and the copies
were found to be done properly. The pen drive and DVD were seized
and sealed along with the Hard Disk, taken out from DVR, the DVR
Charging Wire, Mouse and Remote under the seizure panchanama at
Exhibit 99. PW 16 states that CD (DVD) X for identification is played
in the laptop and the footages contained in it are the same which
were copied from the DVR to Pen Drive and Pen Drive to DVD. This
version is fully supported by PW 14 Shubham and PW 5 Kailash.
There is no reason to doubt the oral version of PW 5 Kailash,
PW 14 Shubham and PW 16 Rupali and we, therefore, hold that the
footages contained in CD marked as 'X' for identification were copied
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from those contained in the Hard Disk at Exhibit 1. CD – 'X' is,
therefore, a true and genuine copy of the footages in camera Nos.1, 2
and 7 in the Hard Disk at Exhibit 1.
Appreciation of the evidence on the snapping of the
photographs of all the accused persons – our findings on
it :
71. The photographs of all the accused persons at Exhibits 197
to 202, are compared with the frames of persons selected as
assailants in the CCTV footages copied in DVD at Article 18A from
the Hard Disk at Exhibit 1. Hence, we consider the evidence of
snapping the photographs of the accused persons. PW 18 Vitthal
states in para 13 of his examinationinchief that
“On 1812013, on my instructions, full size photographs of the
accused were snapped by Nitin Watkar, PW 20, of Diamond Photo
Studio. At that time, accused were in police custody. The said
photographs were snapped for investigation purpose and were
handed over to me in the evening. The amount was paid as per bill
dated 1812013 at Exhibit 204.”
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72. PW 20 Nitin, in his examinationinchief, states that a
Digital Camera is used by him for snapping the photographs and they
are saved in the memory card of the camera. Thereafter, the
photographs are uploaded on computer and with the help of
pen drive, the same are sent for developing. He further states that
six photographs at Exhibits 197 to 202 in the size of 4 x 6 inch might
have been snapped by him and he identifies bill at Exhibit 204 issued
to PW 18 Vitthal. He subsequently states that the photographs might
have been snapped by his worker. This witness was allowed to be
crossexamined as he resiled from his statement. The factum of
snapping photographs of the accused persons, has been proved. In
the crossexamination, no questions are put to challenge the method
by which photographs at Exhibits 197 to 202 were prepared. No
objection was raised at the time of his evidence in respect of the
mode and manner of proof of photographs or its admissibility in
evidence. We, therefore, hold that the photographs of accused, at
Exhibits 197 to 202 are proved.
73. PW 18 Vitthal states that on 222013, he prepared the
request letter to Forensic Science Laboratory, Kalina, Mumbai, for
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examination of Hard Disk and comparison of photographs of accused
with CCTV footage. The letter is at Exhibit 195, which he identifies.
He states that on 322013, he sent Hard Disk, blank Hard Disk, DVR,
Adapter, Remote, Mouse, photographs of the accused and deceased
in sealed condition along with covering letter at Exhibit 195 through
Police Constable Premkumar. He states that all the articles were
bearing seal as 'VSS'. He states that Police Constable Premkumar
collected those articles from Malkhana of Police Station Sakkardara.
He states that the officials at Kalina were not accepting the
photographs without seal on each photograph, and this was informed
to him by Police Constable Premkumar on mobile phone. Hence on
622013, he put the seal on all seven photographs and after
resealing photographs, he sent Police Constable Premkumar along
with all articles to Kalina, Mumbai. There is no reason to doubt the
seizure, sealing and forwarding of all the photographs at
Exhibits 197 to 202, to the Forensic Science Laboratory, Mumbai,
under the covering letter at Exhibit 195, which we accept it as
proved. Its receipt in sealed condition by the office of the Directorate
of Forensic Science Laboratory, Mumbai, on 822013 is also proved
by PW 19 Puja, who has vouched for it.
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Electronic evidence in the form of DVD – Article 18A :
74. On 822013, the office of the Directorate of Forensic
Science Laboratory, Mumbai, received all six photographs of the
accused snapped on 1812013, marked as C to I in
Exhibit 195letter along with Hard Disk marked as Exhibit A, DVR
marked as Exhibit B, and Remote, Charging Cable, Mouse, marked as
Exhibits B(1), B(2) and B(3) respectively. PW 19 Ms Puja, working
as Scientific Officer, prepared forensic image of the data, contained
in Exhibit 1 Hard Disk to blank Hard Disk provided by Police Station
Sakkardara. For the purposes of identification, the primary evidence
of Hard Disk having Image of CY 66/13 was marked as Exhibit 1.
The DVD in which images were copied, was marked as “Annexure
DVD CY 66/13”. We do not find any reason to create any doubt
about the receipt in a sealed cover, an electronic evidence of Hard
Disk, other connections, and blank Hard Disk by the Forensic Science
Laboratory, Mumbai, under covering letter at Exhibit 195
dated 222013. Hence, we accept such evidence.
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75. We have gone through the covering letter
dated 222013 at Exhibit 195, under which PW 18 Vitthal forwarded
on 622013 all the Articles 1 to 15 seized in connection with CCTV
cameras, including the Hard Disk of 500 GB of 'Toshiba' Company
Model No.HDKPC05A0A02J Part No.(P/N)9F13178 vide Exhibit 99
on 1032013, full size photographs of all the accused persons
snapped on 1812013 at Exhibits 197 to 202, to the Director,
Forensic Science Laboratory, Kalina, Santacruz, Mumbai, with a
request to submit the report on the following three queries, which
are in Marathi, but translated in English :
(1) Recordings of eight cameras in the Hard Disk at
ExhibitA be seen in respect of the crime occurred on
1012013 between 17.30 to 18.30.
(2) Whether frames of persons appearing in the Hard Disk
seized at Exhibit No.A are the same in the photographs of
the persons at Exhibit No.C to Exhibit No.I ?
(3) The backups of recording be obtained in DVD.
76. PW 19 Ms Puja, working as Scientific Officer in the office
of the Directorate of Forensic Science Laboratory at Mumbai, states
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that “On 822013, our office received 12 sealed parcel from PS
Sakkardara and one blank Hard Disk (According to us, instead of
“blank Hard Disk”, it should be “blank DVD”) in Crime No.12/13 of
PS Sakkardara under letter dated 222013 at Exhibit 195.” The
parcels were inspected with regard to seal and numbering and were
found in sealed condition and the same were sent for cyber analysis
of CCTV footage dated 1012013 between 5.30 p.m. to 6.30 p.m.
She states that all parcels were opened and were given Exhibit Nos.1
to 12 to the articles.
77. Paras 4, 5 and 6 of the deposition of PW 19 being relevant,
are reproduced below :
“4] On 16122013, the above said case came to me for
analysis. All the articles Exhs 1 to 12 were received by me.
I prepared forensic image of data contained in the
Exh.1 harddisk to blank harddisk provided by
PS Sakkardara. We gave identification to said harddisk as
Image of CY 66/13 Ex 1. The DVR was connected to the
said harddisk, wherein image was prepared. DVR was
connected to our screen and image was played. We searched
the question footage in the said image. We extracted footage
8 channel (camera) of the time 530 to 630 pm
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dt 1012013 from said image, and it was written in DVD.
We marked the DVD as Annexure DVD CY 66/13. We put
said DVD in system. We compared the reference photograph
Exhs 6 to 12 with the footage of DVD. We selected the
frames of persons from the footage and compared the said
frames with reference photograph Exhs 6 to 12. The frames
of persons selected, appeared to be similar with the reference
photograph of Exhs 6 to 12. ”
“5] Each digital record has its unique hash value.
I extracted the hash value of the entire data of harddisk.
Accordingly, I noted the hash value in my report.
I conducted the test of restoring CCTV harddisk, using
Tableau Forensic Duplicator Model D2. Hard disk Exh1
was in proper and working condition. I extracted the hash
value of question footage channel 1 to 8 and mentioned in
my report. After consultation with HOD, Jt. Director, and
Director, I prepared my report. Report Exh 57 now shown to
me, is the same. On 1312014 I sent the report along with
property and DVD in which footage was extracted in sealed
condition to PS Sakkardara through PC Dhok,
B.No.5710. I also sent Art.1 DVR, Art.4 Hard disk,
Art.7 Adapter,Art 10 Mouse, Art.13 Remote, now shown to
me, are the same. 7 brown colour sealed parcel, having seal
of FSL are opened, wherein each envelope 1 photograph with
one torn envelope are found. Exh 7 to 12 Photographs now
shown to me are the same, which were sent to me for
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reference. These are the same, which were sent to me as a
reference photographs. These are marked at
Exhs 196 to 202 . The envelopes in which these photographs
are found, are marked at Exh. 196A to Exh 202A and the
respective torn envelopes are marked 196B to 202B . DVD
X for identification now shown to me, is the same, in which
the image was extracted from Harddisk. DVD is marked at
Art.18A . ”
“6] During comparison of reference photographs, we
scanned the reference photographs. In the report, against
selected photographs, scanned reference photographs are
shown for ready reference. ”
PW 19 states that the Hard Disk has Image of CY 66/13
and it was marked as Exhibit1 for identification. The DVR was
connected to the Hard Disk, where the image was prepared and
transferred to the blank Hard Disk (According to us, instead of “blank
Hard Disk”, it should be “blank DVD”) provided by Police Station
Sakkardara. DVR was connected to the screen and image was
played. The footage concerned was searched. PW 19 states that “We
extracted footage 8 channel (camera) of the time 5.30 to 6.30 p.m.
dated 1012013 from said image, and it was written in DVD. We
marked the DVD as Annexure DVD CY 66/13. We put the said DVD
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in system. We compared the reference photograph Exhibits 6 to 12
with the footage of DVD. We selected the frames of persons from the
footage and compared the said frames with reference photographs
Exhibits 6 to 12. The frames of persons selected, appeared to be
similar with the reference photograph of Exhibits 6 to 12.”
78. PW 19 Ms Puja extracted the hash value of the entire data
of the Hard Disk, which was noted in her report. She conducted the
test of restoring CCTV Hard Disk, using Tableau Forensic Duplicator
Model D2. She found that the Hard Disk Exhibit1 was in proper
and working condition. She extracted the hash value of question
footage channel of 1 to 8 and mentioned in her report. She identifies
the report at Exhibit 57, which was sent along with the property and
DVD in which the footage was extracted in sealed condition to Police
Station Sakkardara through Police Constable Dhok, Buckle No.5710.
She also sent Article 1 DVR, Article 4 Hard Disk, Article 7 Adapter,
Article 10 Mouse, Article 13 Remote, which she identifies. She also
identifies the photographs at Exhibits 7 to 12 sent to her for
reference, which were marked as Exhibits 196 to 202. She states
that “DVD X for identification now shown to me, is the same, in
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which the image was extracted from Hard Disk and it was marked as
Article 18A.”
79. The report at Exhibit 57 given by PW 19 Ms Puja shows
the comparative analysis of selected frames of video files, named as
“CH01.AVI” and “CH07AVI”, with reference to photographs at
Exhibits 6 to 12 with the finding that “the persons present in the
mentioned video files are found similar with the photographs.”
PW 19 states that the report is in respect of comparison of selected
frames of the persons from the footages with those photographs of
the accused, marked as Exhibits 6 to 12 in the report (According to
us, it should be “Exhibits 7 to 12”). The photographs are identified
at Exhibits 197 to 202, and “Annexure DVD CY 66/13” was marked
as Article 18A in the deposition of PW 19. The opinion expressed
was that the photographs of the accused are found to be similar to
the frames of the persons selected from the footages.
80. We have been taken through the crossexamination of
PW 19 Ms Puja by Shri Subodh Dharmadhikari, the learned Senior
Advocate for the accused. In the crossexamination, she states that
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“I have done restoring process of CCTV, Hard Disk, extracting the
data and comparison with my eyes. I have not conducted any other
examination for comparison of reference photographs with selected
frames from the footage other than visual examination.” She states
that “I enlarged the pictures of people appearing in question footage
for comparison. I enlarged the photographs from the footage to the
size of the selected frames as appearing in the Court. I did not
measure the width and breadth of various parts of the faces of
selected frames for comparison with reference photographs.”
In para 9, she says that “I did not compare the hash value of the Hard
Disk with hash value of the footage of the DVD.” She states that if
the files of footage are tampered, it will have different hash value
than the hash value appearing in the Hard Disk. She states that
“I cannot certify the tampered media as an authenticated media.”
She states that “I have not conducted any test for ascertaining that
the samples received are not tampered, edited or mastered.
Our findings on electronic evidence of DVD –
Article 18A and the report at Exhibit 57 :
81. We hold that the DVR, Hard Disk, Remote, Charging Cable,
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Mouse along with blank DVD (Hard Disk) seized and sealed on
1012013 were forwarded by Police Station Sakkardara to the
Forensic Science Laboratory, Mumbai, under covering letter
dated 222013 at Exhibit 195. The same were received by the
Forensic Science Laboratory on 822013 in a sealed condition for
cyber analysis along with photographs of accused at Exhibits 197 to
202 with a request to submit report on the query. DVD, marked as
Exhibit 18A, is proved to be true and genuine copy of the CCTV
footages contained in the Hard Disk at Exhibit 1. The frames of
persons selected from CCTV footages are found matching with those
reference photographs at Exhibits 197 to 202. The report to that
effect at Exhibit 57 is proved.
82. We find that, PW 19 Ms Puja has furnished an explanation
in respect of the statements given by her in the crossexamination.
She states that it was not necessary to compare the hash value,
because the Hard Disk contained the entire files, including footage,
and it has different hash value than the files of footages. She states
that the video was continuous and there was no tampering in the
footages. She denies the suggestion that her comparison was not
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based on any scientific experiment, and all the experiments which
she did, was mentioned in her report at Exhibit 57. She states that
Tableau Forensic Duplicator Model D2 is an equipment, and if one
has licence of the said equipment with proper training, can restore
the data. She denies the suggestion that the reference photographs
are not even similar to selected photographs.
83. What we find from the crossexamination of
PW 19 is that, in the present case, it was not necessary to compare
the hash value of Hard Disk with the hash value of the footages of
DVD, as the Hard Disk contained the entire files and it has different
hash value than the files of footages. The video was continuous and
there was no tampering in the footages. The Sessions Court holds in
para 66 that nowhere it is the case that what is contained in the
DVD – Article 18A, is not contained in the Hard Disk (Article 4). The
primary evidence was produced on record and it is only for the
purposes of reference, DVD – Article 18A was prepared by
PW 19 Puja to prepare her report and is shown to the witnesses. It is
never contended that DVD – Article 18A does not contain footages in
the Hard Disk (Article 4). We concur with such findings.
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84. The crossexamination of PW 19 reflects the suggestion
that the hash value of the Hard Disk is different from the hash value
of the footages contained in CD – 'X' or DVD and, therefore, the only
inference which can be drawn is that there was tampering in the
recordings of CD – 'X' and DVD. We have seen the Hard Disk,
CD – 'X' and DVD. The report of PW 19 at Exhibit 57 shows the
storage capacity of Hard Disk as “465.76 GB”, whereas the capacity
of CD – 'X' is “52X 700 MB 18 MIN” and that of DVD is of
“4.7 GB/16X”. The report shows that 8 CCTV footage files (.AVI) of
time period 17.30 to 18.30 of date 1012013 found in the Hard Disk
at Exhibit 1 were given in the enclosed DVD, i.e. Article 18A. What
we find is that there was a comparative analysis made of the selected
frames of the video files named as CH01.AVI and CH07.AVI with
the reference photographs at Exhibit 6 to Exhibit 12. It is in this
background, PW 19 has explained that it was not necessary to
compare the hash value of Hard Disk with the hash value of the
footages contained in the DVD, as the Hard Disk contained the entire
files and it has a different hash value than the files of the footages.
We, therefore, are of the view that the suggestion in the
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crossexamination was of no significance in the facts and
circumstances of this case.
85. We find from the evidence discussed earlier that there was
no scope left out for tampering in the process of seizure, sealing,
forwarding and receipt of all the concerned articles by PW 19, who
has vouched that it is untampered and has withstood it in her
crossexamination on all the questions in respect of it. No questions
were put to this witness impeaching her credit, as required by
Section 155 of the Evidence Act. We, therefore, do not find that the
crossexamination of PW 19 is of any help to the accused persons.
On the contrary, we are of the view that there is no reason to
disbelieve the version of PW 19 on the comparison of photographs
with the faces of selected frames, as shown in the report at
Exhibit 57.
Oral evidence of PW 4 Pramod to identify the assailants
as accused persons :
86. PW 4 Pramod Gawande is the real brother of the deceased
Jitu Gawande. He claims to be knowing the accused Nos.1 to 6 as
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the friends of the deceased Jitu and on visiting terms to his house.
He talks about the motive of the accused Nos.1, 2 and 3 to assault
the deceased, who used to repeatedly demand the amount of
Rs.50,000/ paid to the accused No.1 Tushar Dalal on credit.
Undoubtedly, he is not an eyewitness to the incident, but claims to
have seen the accused persons not only in the crime in question on
the basis of CCTV footages shown to him in the Police Station on
1112013. This witness was also confronted in the Court with the
footages from camera Nos.1, 2 and 7. However, it is not clear
whether footages were from CD marked as 'X' or from DVD marked
as Article 18A. Be that as it may, CD – 'X' was confronted to
PW 1 Raghuveer, who identified it.
87. PW 4 Pramod identified all the accused persons.
According to him two accused were assaulting Jitu by knife, two
were watching outside the Bar, and remaining two accused were
inside the Bar with the accused, who were assaulting Jitu. He states
that the accused No.1 Tushar and the accused No.2 Kunal were
assaulting Jitu by knife, the accused No.5 Rinku provided the
knife, the accused No.3 Lashu Faye was standing along with the
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accused Nos.1, 2 and 5 inside the Bar, the accused No.4 Amol
Mandale came from backside of the Bar and took cold drink bottle
and brandished to the persons, including the waiters inside the bar,
and the accused No.6 Samir was standing outside, near the gate of
the Bar.
Our findings on the oral evidence of PW 4 Pramod on
the identification of accused persons :
88. The oral evidence of PW 4 Pramod claiming to have seen
CCTV footages on 1112013 in Police Station, was possible to get
corroboration from the Investigating Officer. The evidence of
PW 4 that he was shown CCTV footages on 1112013 in the Police
Station does not find any corroboration. In fact, all the items seized
on 1012013 were sealed and there is no evidence of reopening of
it. However, his oral evidence about previous acquaintance with the
accused persons as the friends of deceased Jitu and in respect of
motive, seems to us as natural. It is not questioned in the
crossexamination. We, therefore, do not find any impediment in
accepting this evidence and we hold that PW 4 Pramod has
unequivocally established the motive of the accused to finish the
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deceased Jitu and has identified all the accused persons as the
assailants of Jitu, on the basis of CCTV footages shown to him in the
Court.
89. The objection before the Court to confront
PW 4 Pramod with CCTV footages was that he is not an
eyewitness and, therefore, the footages can only be confronted to
him in the crossexamination. The Court has held that the witness
has stated to have seen the footages in the Police Station and,
therefore, the objection was overruled. The Court has also held that
the footages were shown only for the purposes of identification of
the accused persons. The crossexamination of PW 4 on the aspect of
his acquaintance with all the accused persons is conspicuously silent.
Whether PW 4 was confronted the CCTV footages from CD – 'X' or
DVD – Article 18A does not make any difference, as, in our view also,
CCTV footages were shown only to identify the assailants, which he
has done. This witness has clearly established his previous
acquaintance with all the accused persons as the friends of deceased
Jitu and in respect of money transaction between accused
No.1 Tushar and deceased Jitu. We do not find any reason to
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disbelieve the version of PW 4 and we hold that he has identified all
the accused persons as the assailants of deceased Jitu Gawande and
has attributed each of them the specific role which he has played in
the crime in question.
Rival contentions on the question of admissibility of the
certificate at Exhibit 160 issued under Section 65B of
the Evidence Act :
90. The prosecution has relied upon the certificate
dated 1222013 at Exhibit 160, issued under the signature of
PW 15 Sachin, the owner of ITG Solution Company, which installed
CCTV cameras in the Seven Hills Bar on 21122012 and continues to
monitor its working by sending the employees, including PW 14
Shubham, the Hardware Operator. The certificate at Exhibit 160 is
reproduced below :
“ITG Solution
Date : 12022013
Certificate
(U/S 65B of Indian Evidence Act)
I Sachin Kshirsagar Proprietor of M/s ITG Solution, Plot No79 Radhakrishna Nagar
Behind Radhakrishna Temple, Hudkeshwar Road, Nagpur. To the best of Knowledge
and belief certify as under :
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1) That I Sachin KS am running the Business of CCTV System and IT Solution by
ITG Solution.
2) That I have Installed the CCTV System in 7 Hill BAR, Near Sakkardhara lake,
Sakkardhara Nagpur On 21st Dec 2012, Receipt NoITG026
3) That CCTV System in 7 Hill BAR, Sakkardhara
Nagpur was installed by our Technical Team.
4) That the CCTV System was in Operation from 21st Dec 2012 to till Date of
Incidence That is 10th Jan 2013.
5) That On dated 10th Jan 2013 the CCTV System was working till time after
8:30 pm when Mr. Shubham Padgilwar visited 7 hill Bar, Sakkardhara
Nagpur, and CCTV System (HDD and DVR) in the Presence of Investigation
Team Of Sakkardhara Police Station and Handed Over CCTV System (HDD
and DVR) to the Police
Note: Copy of Bill is Already Hand Over to the Police Station
Seal of ITG Solutions,
Nagpur and
Signature as Sachin
Place: Nagpur Signature and Seal
Regd.Off.79, Rarhakrishna Nagar, B/H Radhakrishna Temple, Hudkeshwar Rd, Nagpur34. ”
The prosecution claims it to be one issued under
Section 65B of the Indian Evidence Act.
91. Relying upon the provision of Section 65B of the Indian
Evidence Act, it is urged by the learned counsels appearing for the
accused persons that unless the conditions mentioned under
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subsection (4) therein are complied with, the proof of an electronic
record by oral evidence is not permissible. Our attention is invited to
a threeJudge Bench decision of the Apex Court in the case of Anvar
P.V. v. P.K. Basheer , reported in (2014) 10 SCC 473 , more
particularly para 14 therein, which is reproduced below :
“ 14. Under Section 65B(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 65B(2) of the
Evidence Act; and
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(e) The certificate must be signed by a person occupying
a responsible official position in relation to the operation
of the relevant device.”
It is urged that the certificate in the present case, marked
as Exhibit 160, does not comply with the mandatory conditions (a)
to (e), as aforestated, laid down by the Apex Court. It is, therefore,
inadmissible in evidence.
92. According to the defence, the certificate at Exhibit 160
ought to have been signed either by the owner of the Seven Hills Bar
and Restaurant or PW 1 Raghuveer, the Manager, who were
occupying the responsible official position in relation to the
operation of the CCTV system installed in the Seven Hills Bar and
Restaurant, as required by condition (e) in para 14 above. The
certificate at Exhibit 160 is signed by PW 15 Sachin, the owner of
ITG Solution Company, who has installed the CCTV cameras, and
this is no compliance of the mandatory provision. It is further urged
that the certificate at Exhibit 160 also does not conform to the
conditions stipulated under clauses (a) to (d) in para 14 of the
decision in Anvar's case, reproduced above.
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93. According to the defence, though there was primary
evidence available, what was used during the investigation and also
before the Court to confront the witnesses, was the secondary
evidence in the form of CD, marked as 'X' for identification, and DVD,
marked as Article 18A, in respect of which the certificate, as
contemplated under Section 65B of the Evidence Act has not at all
been issued. It is, therefore, urged that the identification of the
accused persons as the assailants in the present case being based
exclusively upon the secondary evidence of electronic record, the
same is inadmissible.
Consideration of precedents :
94. In the decision of a twoJudge Bench of the Apex Court in
the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru ,
reported in (2005) 11 SCC 600 , an issue of production of electronic
evidence on record was considered. In para 150 of the said decision,
it was held as under :
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“ 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 serviceproviding 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 65B, which is a provision dealing
with admissibility of electronic records, there is no bar to
adducing secondary evidence under the other provisions of
the Evidence Act, namely, Sections 63 and 65. It may be that
the certificate containing the details in Subsection (4) of
Section 65B is not filed in the instant case, but that does not
mean that secondary evidence cannot be given even if the law
permits such evidence 5to be given in the circumstances
mentioned in the relevant provisions, namely, Sections 63
and 65.”
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The aforesaid decision holds that “It may be that the
certificate containing the details in subsection (4) of Section 65B is
not filed in the instant case, but that does not mean that secondary
evidence cannot be given even if the law permits such evidence to be
given in the circumstances mentioned in the relevant provisions,
namely Sections 63 and 65.”
95. The aforesaid decision came up for consideration before a
threeJudge Bench of the Apex Court in the case of Anvar P.V. v. P.K.
Basheer , reported in (2014) 10 SCC 473 . In para 21 of the said
decision, the Court holds that in Navjot Sandhu's case, cited supra, a
responsible official had duly certified the document at the time of
production itself. The signatures in the certificate were also
identified. That is apparently in compliance with the procedure
prescribed under Section 65B of the Evidence Act. Probably what the
Court intended to say is that the question did not fall for
consideration in Navjot Sandhu's case.
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96. The Apex Court, however, holds that in Navjot Sandhu's
case, the Court omitted to take note of Sections 59 and 65A dealing
with the admissibility of electronic record. It holds that Sections 63
and 65 have no application in the case of secondary evidence by way
of electronic record; the same is wholly governed by Sections 65A
and 65B. The Court, therefore, holds that the statement of law on
admissibility of secondary evidence pertaining to electronic record,
as stated in Navjot Sandhu's case, does not lay down the correct legal
position. The decision in Navjot Sandhu's case to the effect that
though the certificate containing details in subsection (4) of
Section 65B is not filed, that does not mean that the secondary
evidence cannot be given, even if the law permits such evidence to be
given in the circumstances mentioned in the relevant provisions,
viz. Sections 63 and 65, has been overruled. The Court holds in
para 22 of Anvar's case that an electronic record by way of secondary
evidence shall not be admitted in evidence unless the requirements
under Section 65B are satisfied.
97. In Anvar P.V.'s case, the Apex Court holds in para 22 that in
the case of CD, VCD, chip, etc., the same shall be accompanied by the
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certificate in terms of Section 65B obtained at the time of taking the
document, without which, the secondary evidence pertaining to that
electronic record, is inadmissible. In para 24, the Apex Court holds
that the CDs cannot be admitted in evidence since the mandatory
requirements of Section 65B of the Evidence Act are not satisfied. It
holds that only if the electronic record is duly proved in terms of
Section 65B of the Evidence Act, the question as to its genuineness
thereof in that situation, resort can be made to Section 45A –
Opinion of Examiner of Electronic Evidence. It is held that Section
65B of the Evidence Act is a complete Code.
98. The Court in Anvar P.V.'s case, however, clarifies that
notwithstanding what we have stated in the preceding paragraphs on
the secondary evidence on electronic record with reference to
Section 59, 65A and 65B of the Evidence Act, if an electronic record
as such is used as primary evidence under Section 62 of the Evidence
Act, the same is admissible in evidence, without compliance of the
conditions in Section 65B of the Evidence Act.
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99. In the decision of a threeJudge Bench of the Apex Court in
the case of Tomaso Bruno and another v. State of Uttar Pradesh ,
reported in (2015) 7 SCC 178 , it was a case where it was held that
CCTV footage is a strong piece of evidence which would have
indicated whether the accused remained inside the hotel and
whether they were responsible for the commission of the crime. It
further holds that it would have also shown whether or not the
accused had gone out of the hotel. CCTV footage being a crucial
piece of evidence, it is for the prosecution to have produced the best
evidence which is missing. It holds that omission to produce CCTV
footage, in our view, which is the best evidence, raises serious doubts
about the prosecution case. The Court, therefore, drew an adverse
inference against the prosecution under Section 114, illustration (g)
of the Evidence Act, that the prosecution withheld the same as it
would be unfavourable to them had it been produced. The
conviction was, therefore, set aside.
100. In the decision of the Division Bench of the Apex Court,
consisting of two Judges, in the case of Sonu @ Anvar v. State of
Haryana , reported in 2017 SCC OnLine SC 765 , it was a case where
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CDRs were not certified in accordance with subsection (4) of
Section 65B of the Indian Evidence Act. The question, which fell for
consideration, was about permissibility of an objection regarding
inadmissibility of CDRs in evidence before the Apex Court.
In para 29, the Court holds that admittedly, no objection was taken
when the CDRs were adduced in evidence before the Trial Court. It
holds that it does not appear from the record that any such objection
was taken even at the appellate stage before the High Court.
101. In para 32 of Sonu @ Anvar's case, the Apex Court holds
that it is nobody's case that CDRs which are a form of electronic
record are not inherently inadmissible in evidence. The objection is
that they were marked before the Trial Court without a certificate as
required by Section 65B(4). The Court holds that the crucial test in
such a case is whether the defect could have been cured at the stage
of marking the document. Upon an objection relating to the mode or
method of proof, the Courts holds that in the present case if an
objection was taken to the CDRs being marked without a certificate,
the Court could have given the prosecution an opportunity to rectify
the deficiency. It holds that the mode or method of proof is
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procedural and objections, if not taken at the trial, cannot be
permitted at the appellate stage. It holds that if the objections to the
mode of proof are permitted to be taken at the appellate stage by a
party, the other side does not have an opportunity of rectifying the
deficiencies. An example was taken as to the statements under
Section 161 of the Code of Criminal Procedure, which fall under the
category of inherently inadmissible evidence and CDRs do not fall in
the said category of documents.
102. In the order dated 3012018 passed by a twoJudge
Bench of the Apex Court in the case of Shafhi Mohammad v. The
State of Himachal Pradesh , all the decisions, cited supra, were taken
into consideration and it is held in paras 14 and 15 as under :
“ 14. The applicability of procedural requirement Under
Section 65B(4) of the Evidence Act of furnishing certificate
is to be applied only when such electronic evidence is
produced by a person who is in a position to produce such
certificate being in control of the said device and not of the
opposite party. In a case where electronic evidence is
produced by a party who is not in possession of a device,
applicability of Sections 63 and 65 of the Evidence Act
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cannot be held to be excluded. In such case, procedure
under the said Sections can certainly be invoked. If this is
not so permitted, it will be denial of justice to the person
who is in possession of authentic evidence/witness but on
account of manner of proving, such document is kept out of
consideration by the court in absence of certificate Under
Section 65B(4) of the Evidence Act, which party producing
cannot possibly secure. Thus, requirement of certificate
Under Section 65B(h) is not always mandatory.”
“ 15. Accordingly, we clarify the legal position on the
subject on the admissibility of the electronic evidence,
especially by a party who is not in possession of device from
which the document is produced. Such party cannot be
required to produce certificate Under Section 65B(4) of the
Evidence Act. The applicability of requirement of certificate
being procedural can be relaxed by Court wherever interest
of justice so justifies.”
The aforesaid decision of a twoJudge Bench accepts the
view taken in Anvar P.V.'s case delivered by a threeJudge Bench,
but creates one more exception by clarification that in a case where
electronic evidence is produced by a party who is not in possession of
a device, the applicability of Sections 63 and 65 of the Evidence Act
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cannot be excluded. It holds in such situation, there cannot be
insistence upon the production of certificate under Section 65B(4)
of the Evidence Act. It further holds that the applicability of
requirement of certificate being procedural can be relaxed by the
Court wherever interest of justice so require.
Law summarized on electronic evidence :
103. We are not impressed by an argument that the order in
Shafhi Mohammad's case is not the law laid down under
Article 141 of the Constitution of India. We may now, therefore,
summarize the law laid down by the Apex Court in the aforesaid
decisions in respect of admissibility of electronic evidence :
(1) The purpose of the provisions of Sections 59, 65A and
65B of the Evidence Act, is to sanctify secondary evidence.
(Para 14 of Anvar's case ) .
(2) Only if the electronic record is duly produced in terms
of Section 65B of the Evidence Act, the question would
arise as to genuineness thereof and in that situation, resort
can be made to Section 45A – Opinion of Examiner of
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Electronic Evidence. (Para 17 of Anvar's case ) .
(3) The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence, if
requirements under Section 65B are not complied with.
(Para 18 of Anvar's case ) .
(4) An electronic record by way of secondary evidence
shall not be admitted in evidence unless the requirements
under Section 65B of the Evidence Act are satisfied. In the
case of CD, VCD, chip, etc., the same shall be accompanied
by the certificate in terms of Section 65B of the said Act,
obtained at the time of taking the documents, without
which, the secondary evidence pertaining to that electronic
record is inadmissible. (Para 22 of Anvar's case ) .
(5) The view taken by the Apex Court in Navjot Sandhu's
case that even if the certificate containing the details in
subsection (4) of Section 65B of the Evidence Act is not
filed, that does not mean that secondary evidence cannot
be given even if the law permits such evidence to be given
in the circumstances mentioned in the relevant provisions,
namely, Sections 63 and 65 of the said Act, stands
overruled and is declared to be no longer a good law.
(Para 22 of Anvar's case ) .
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(6) If an electronic record as such used as primary
evidence under Section 62 of the Evidence Act, the same is
admissible in evidence without compliance of the
conditions in Section 65B of the said Act.
(Para 24 of Anvar's case ) .
(7) The objection that the electronic record tendered in
evidence is inadmissible in the absence of a certificate, as
required by Section 65B(4) of the Evidence Act pertains to
the mode or method of proof which is procedural, and
objections, if not taken at the trial, cannot be permitted to
be taken at the appellate stage.
(Paras 29 and 32 of Anvar's case ) .
(8) Withholding of the best evidence in the form of
electronic record clinching the issue, raises a serious doubt
about the case of the prosecution and an adverse inference
against the prosecution under Section 114, illustration (g)
of the Evidence Act can be drawn that the prosecution
withheld the same, as it would be unfavourable to them
had it been produced. (Paras 21 and 28 of Tomaso
Bruno's case ) .
(9) The applicability of procedural requirement under
Section 65B of the Evidence Act of furnishing certificate is
to be applied only when such electronic evidence is
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produced by a person who is in a position to produce such
certificate being in control of the said device and not of the
opposite party. In a case where electronic evidence is
produced by a party who is not in possession of a device,
applicability of Sections 63 and 65 of the Evidence Act
cannot be held to be excluded. The requirement is not
always mandatory. (Para 14 of Shafhi Mohammad's
case) .
(10) The applicability of requirement of certificate being
procedural can be relaxed by Court whenever interest of
justice so justifies. (Para 15 of Shafhi Mohammad's case ) .
Certificate at Exhibit 160 does not fulfil the
requirements of subsection (4) of Section 65B of
Evidence Act :
104. Keeping in view, the law laid down by the Apex Court, we
must hold that the certificate at Exhibit 160 does not comply with all
the requirements of subsection (4) of Section 65B of the Evidence
Act in relation to the proof of CD, marked as 'X' for identification,
and DVD, marked as Article 18A, though it may be possible to urge
that some of the conditions are complied with. The certificate is in
fact not in respect of the secondary evidence of CD – 'X' or DVD –
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Article 18A, which are used in evidence. Exhibit 160 Certificate is
proved in respect of the evidence of what it conveys through it, but it
does not satisfy the requirements of subsection (4) of Section 65B,
as are laid down in para 14 of Anvar's case by the Apex Court and is,
therefore, inadmissible in evidence as certificate under Section 65B.
We, therefore, hold it against the prosecution that the certificate at
Exhibit 160 cannot have presumptive value as is attached to it under
the said provision. The Sessions Court has held that PW 15 Sachin
has issued such certificate at Exhibit 160 and he was occupying a
responsible position in respect of installation and functioning of the
system. In our view, this is not enough to hold that Exhibit 160
satisfies the requirements of Section 65B.
105. The findings recorded by us in the aforesaid paras on the
inadmissibility of Exhibit 160 as an evidence under
Section 65B of the Evidence Act does not relieve us from considering
the position of law laid down by the Apex Court in its various
decisions on the question as to whether the provision of Section 65B
of the Evidence Act is attracted or not in the facts and circumstances
of this case. Hence, we proceed to deal with all such decisions.
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Our understanding of law on electronic evidence:
106. What we understand from the law summarized as above is
that Section 65B of the Evidence Act deals with the secondary
evidence and not with the primary evidence in the form of electronic
record. If the reliance is placed on the primary evidence, then it is
not necessary to produce the certificate under Section 65B of the
Evidence Act in compliance with the conditions stipulated by the
Apex Court in para 14 of its decision in Anvar's case. In case where
the electronic evidence is produced by a party, who is not in
possession of the device, the applicability of Sections 63 and 65 of
the Evidence Act is not excluded, and in such a case, the procedural
requirement under Section 65B of the Evidence Act is not at all
attracted. In cases where the provision of Section 65B is not
attracted, oral evidence of electronic record becomes admissible and
recourse could be to the provisions of Sections 59, 63 and 65 of the
Evidence Act.
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107. Though the provision of subsection (4) of
Section 65B of the Evidence Act is mandatory and noncompliance
of it, makes the secondary evidence of electronic record inadmissible,
nonetheless, it is procedural dealing with the mode and manner of
proof. Any objection as to its admissibility has, therefore, to be
raised at the time when such evidence is sought to be tendered.
However, if such secondary evidence is permitted to be tendered
without any objection, the demand for compliance of the conditions
in subsection (4) of Section 65B is deemed to have been waived, as
has been considered in the case of Tomaso Bruno , cited supra. Such
objection cannot subsequently be entertained by the Court to deprive
the party tendering such evidence, an opportunity to rectify the
defects or the deficiencies. Therefore, the question as to whether the
provision of subsection (4) of Section 65B of the Evidence Act is
attracted or not, will have to be decided in the facts and
circumstances of each case and the Court can relax such requirement
whenever interest of justice so requires or justifies.
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Our view on the admissibility of electronic evidence in
the facts and circumstances of this case :
108. PW 14 Shubham states that he had also copied the
wanted footage of three cameras from DVR in the Pen Drive. He
states that “I had also copied the wanted footage in two CDs from the
Pen Drive, which were given to the police.” The Sessions Court,
relying upon the oral evidence of PW 14, holds in para 66 that the
copies of footages, which were made in Pen Drive, were kept by
police for investigation purpose and they are not produced before the
Court. We do not find any fault in such a view taken by the Sessions
Court.
109. The Hard Disk, which is a primary electronic evidence,
containing Image of CY 66/13, is marked as Exhibit 1 without any
objection as to its admissibility. A DVD, which is the copy of the
Image or a copy of the Hard Disk prepared and identified by
PW 19 Ms Puja is marked as “Annexure DVD CY 66/13” Article 18A
is also admitted in evidence without any objection of it being a true
copy of the footages in the Hard Disk. On our independent
consideration of the entire evidence, we find that the DVD at
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Article 18A is the true and genuine copy of footages contained in the
Hard Disk and no fault can be found with the comparison report at
Exhibit 57. The Sessions Court records the finding in para 78 that
PW 19 Ms Puja has clarified that the video is continuous and she
ruled out the possibility of tampering of Hard Disk or even DVD –
Article 18A. We concur with it. Thus, the primary as well as the
secondary evidence of electronic record produced on record is true
and genuine.
110. On the basis of the oral evidence of PW 5 Kailash,
PW 14 Shubham, PW 16 Rupali, Exhibit 99 seizure panchanama, bill
of Pen Drive and DVD/CD at Exhibit 165, sketch of spot at
Exhibits 166 and 167 and bill for purchase of CCTV system at
Exhibit 84, we have already held that – (1) CCTV system containing
Hard Disk and cameras to record all happenings in the Bar was
installed, (2) it was functioning on the date of incident, (3) it
recorded the entire incident of murder of Jitu on 1012013 at 5.30
p.m. onwards, (4) recorded footages in cameras were viewed on
LCD TV on the spot, (5) copies of footages from cameras 1, 2 and 7
in the Hard Disk, taken in CD – 'X' are true and genuine, and
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(6) CD – 'X' and entire system of CCTV cameras was seized and
sealed under panchanama at Exhibit 99, and (7) all these articles are
identified by the witnesses in Court. The Sessions Court also records
the finding in para 73 that from the date of seizure till opening of
parcel, containing Hard Disk, by PW 19 Ms Puja, the label seal
(Article 5) on the parcel was intact. We accept such finding.
111. One more additional aspect we would like to consider.
On CD – 'X' placed on record, it is written “CAPTAIN PRO COMPACT
DISC RECORDABLE” and on DVD, it is written as “DVDR”. After its
search on Internet, we find that it is known as “CDR” or “DVDR”,
which is a type of “Write Once, Read Many” (WORM) compact disc
format that allows onetime recording on disc and it is different from
CDRW which allows you to write data and then erase to reuse the
disc. As long as CDR disc has not been finalized, you can erase it
and reuse it the same way you could a standard CDRW disc. The
finalization process makes it impossible to reuse a CDR after its
been recorded to and so long as that has not happened you can
continue to record data to a disc as often you would like. In our
view, it means that the CD – 'X' and DVD – Article 18A placed on
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record are of type “Write Once, Read Many” and are not capable of
multiple recordings, once the process is finalized. No questions were
put in the crossexamination of PW 14 Shubham or PW 19 Ms Puja,
on the question of reuse of CD – 'X' and DVD – Article 18A before
finalization of recording. It was not the suggestion to
PW 14 Shubham or PW 19 Puja that multiple CDs or DVDs were used
while copying the data in CD – 'X' or DVD – Article 18A. It was not
the suggestion that CD – 'X' or DVD – Article 18A were of “RW” type
and not “R” type. There was no suggestion that the Hard Disk, other
than one at Exhibit 1, was used for copying purposes. Once the
recording in CD – 'X' and DVD was complete, there was no scope to
tamper with it as they were not reusuable.
Significant aspects to be noted in respect of electronic
evidence produced :
112. We would like to note most significant aspects in respect
of the electronic evidence produced on record. It was not the
objection raised that the CCTV system installed in the said Bar was
neither functioning at the time of incident nor did record the incident
of murder of Jitu Gawande. It was also not the objection raised that
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the Hard Disk at Exhibit 1 was tampered or contained something
other than what was recorded by the cameras in operation connected
to it. It was neither the objection raised nor was there any
crossexamination suggesting that the CD 'X' in question does not
contain images of the footages contained in the Hard Disk or that it is
not a true copy of footages contained in three cameras recorded in
the Hard Disk at Exhibit 1. It is also not an objection that DVD at
Article 18A is not the true copy of the Hard Disk at Exhibit 1. It was
also not the objection raised before the Court that the witnesses
should be shown the CCTV footages from the primary evidence of
Hard Disk produced on record. PW 14 Shubham, who prepared
CD – 'X', and PW 19 Puja, who prepared DVD – Article 18A, have
deposed that they have copied it from the Hard Disk at Exhibit 1.
There is no challenge to this version of independent witnesses, which
is not tested in the crossexamination, as required by Section 155 of
the Evidence Act; impeaching their credit. In view of such position,
we hold that the objection raised to the admissibility, loses its
significance and is, therefore, rejected.
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Other objections to electronic evidence :
113. The Sessions Court has dealt with two objections raised by
the defence in paras 76 and 77 as under :
“ 76. Evidently, in the requisition letter (Exh. 195)
model number of harddisk, which was sent for forensic
examination is HDKPOK02J, whereas in report (Exh. 57),
the number of harddisk is mentioned as WD5000AAKX
00ERMA0. Taking help of this discrepancy, learned
Advocate for the accused No.1, vehemently submits that the
harddisk examined by the expert is not the same. Bare
perusal of harddisk (Article4) goes to show that apart
from number mentioned in the requisition letter (Exh. 197),
various other numbers are mentioned on the harddisk
itself. The number WD5000AAKX00ERMA0 is one of the
numbers printed on the said hard disk Apart from
HDKP05AOK02J. So, it appears that the expert has written
in her report one of the another number, which is appearing
on the harddisk (Article4) containing number
HDKP05AOK02J. Therefore, I do not find force in the
argument of learned Advocate for accused No.1 that it is not
the same harddisk.”
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“ 77. It is also submitted by learned Advocate for the
accused that the CD as well as harddisk are not exhibited
and they have been given Article Numbers, therefore, they
cannot be read in evidence. Let me state, in general practice
any document of paper is given an exhibit number and
whereas, any article, though it may be document within the
meaning of Evidence Act, are given article numbers for the
convenience purpose. So, mere on this ground it cannot be
said that harddisk and DVD/CD are marked as Article No.4
and 18, respectively and not given exhibit numbers,
therefore they cannot be read in evidence. Article or Exhibit
Numbers are given only for identification and convenience
purpose during the trial. Deciding its probative value is
entirely different thing. So, if the other criteria is satisfied,
then they can be read in evidence, irrespective of the fact
that they are given article numbers. Therefore I do not find
force in the argument of Learned Advocate for defence.”
We do not find any fault in rejecting the objection and we
concur with it.
Ourselves witnessing CCTV footages from the Hard Disk,
CD and DVD :
114. The Hard Disk at Exhibit 1 contained in the DVR is
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available on the record of the Sessions Court. The witnesses
PW 1 Raghuveer, PW 2, Raju, PW 3 Sitaram, PW 4 Pramod,
PW 5 Kailash, PW 14 Shubham, PW 16 Rupali and PW 18 Vitthal
were confronted with the relevant portion in CD – 'X' and
Annexure DVD CY66/13 (Article 18A) during the course of their
examinationinchief. We asked the learned counsels appearing for
the parties as to whether there is legal impediment for this Court to
view the footages from the Hard Disk, DVD and CD, and their
response is that there cannot be. In fact, all of them expressed that
the Sessions Court should have got the entire system produced on
record assembled and the witnesses should have been confronted
with the footages recorded in the Hard Disk at Exhibit 1.
We, therefore, called upon the Technicians from the establishment in
the High Court in our Chamber. We opened the seals of the articles
sealed and produced. We got it assembled and have ourselves
viewed the footages contained in the Hard Disk at Exhibit 1, which
was connected to the DVR, CD – marked as 'X' and DVD at
Article 18A.
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115. After witnessing the footages in the Hard Disk, CD and
DVD, we neither find any difference nor any discontinuity or
insertions in the Hard Disk at Exhibit 1. On the contrary, we find
that the recordings in the Hard Disk and the DVD and CD are in the
same continuity and corresponds with each other. We find that the
DVD at Article 18A and CD – 'X' are the true and genuine copies of
the footages in camera Nos.1, 2 and 7 in CCTV recorded in the Hard
Disk at Exhibit 1. We also find that the entire electronic evidence
produced on record is not only consistent with each other, but also
consistent with the oral evidence of the witnesses. Probably for this
reason, there was no insistence from the defence for showing the
footages from the Hard Disk, which is a primary electronic evidence.
116. We do not find it necessary to consider the question as to
the admissibility of secondary evidence produced by a person not in
power and possession of the CCTV system. We find that the primary
as well as secondary evidence of electronic record is produced, and
that the secondary evidence is a true and genuine copy of relevant
primary evidence available on record. In the absence of any
objection or crossexamination of the witnesses, PW 1 Raghuveer,
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PW 2 Raju, PW 3 Sitaram, PW 4 Pramod, PW 5 Kailash, PW 14
Shubham, PW 16 Rupali and PW 18 Vitthal, on the aspect of
CD – marked as 'X' and DVD at Article 18A not being the true and
genuine copies of the footages contained in the Hard Disk at Exhibit
1, in our view, the provision of Section 65B of the Evidence Act is
not at all attracted so as to make the electronic evidence in the form
of CD and DVD inadmissible to establish the incident and the identity
of the assailants. We, therefore, hold that the electronic evidence
tendered in the form of Hard Disk at Exhibit 1, CD – 'X' and DVD –
Article 18A is admissible in the facts and circumstances of the case
without a certificate under Section 65B of the Evidence Act. We,
therefore, accept such a view taken by the Sessions Court to be legal,
correct and proper.
Activities in the Seven Hills Bar :
117. PW 1 Raghuveer states that the Bar used to open
at 10.30 a.m. and used to close at 11 p.m. There are six waiters, one
cook and one security guard. In the morning, two waiters used to
come for a work and they used to remain in the Bar upto 2 p.m.
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Four waiters used to come at 2 p.m. and used to remain in the Bar
till 11 p.m. Cook and guard used to come at 2 p.m. He states that
“I used to come to Bar at 2 p.m. and my job was to provide service to
the customers by sitting on the counter.” He states that the Bar
provides service of liquor for drinking to the customers at the
counter. Waiters used to provide service to the customers at the
table. After taking orders from the table, waiters used to come to the
counter and used to take liquor from him as per the orders of the
customers. He states that in the year 2013, Raju Vargat, Anil Tiwari,
Vinay Tiwari, Manish Tiwari, Devendra and Gajanan were working
as waiters in the Bar, whereas Rupesh Gade and Sitaram Wankhede
were the security guard and cook respectively.
Actual incident, complaint, the persons present on the
spot, and their oral evidence :
118. PW 1 further states that the incident took place on
1012013, on which date he came to the Bar at 2 p.m., and Sitaram
Wankhede, Anil Tiwari, Raju Vargat and Rupesh attended the duty.
At about 5 to 5.30 p.m., four people came in the Bar. He states that
“One of them came to my counter and asked counter peg of Rum.
I prepared peg (liquor) and gave it to him. Other three people were
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standing behind him. I provided Rum to the said person in a glass.
Thereafter, I was busy in my work. In our Bar, there is door of glass
which is adjacent to the shutter of the Bar. Besides the said door,
there is partition of glass. I saw from the glass partition, one car
came there. Those three persons were looking towards car. I felt that
they were waiting for somebody because those persons were looking
outside the Bar again and again. The said car was of white colour. It
was big car. After some time, one person came out of the said car
and entered in the Bar. He was talking to all four persons. They
were talking in Marathi. I do not know Marathi. They started
talking loudly, therefore, I paid attention towards them. One of
them, closed the door of the Bar. The said person was one of the
four persons. Those four persons started quarrelling with a person
who came in the car. Out of four, two persons started assaulting the
said person by means of knives. Those knives might have brought by
those persons. Rest of two persons went outside. The person to
whom assault was made fell down. In spite of that those persons
were assaulting the said person, who fell down. Thereafter they left
the Bar. There was pool of blood. I had been to rescue him but one
of them brandished knife towards me and asked me to go inside.
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Therefore, I went inside the counter.”
119. PW 1 Raghuveer states that at the time of incident, CCTV
cameras were on. In para 7, he states that “When incident
happened, I, Raju Vargat, Sitaram Wankhede and Anil Tiwari were
present. Nobody other was present there except us. I made phone
call on 100 number and informed the incident.” In para 11, he states
that within 20 to 25 minutes, police came there and enquired with
him about the deceased. He further states that “I told police that I do
not know deceased. I was taken to police station. I informed the
police about the incident.” He states that “What I told, police wrote.”
He identifies the oral complaint dated 1012013 at Exhibit 85, and
the printed complaint at Exhibit 86. He says that “No further enquiry
was made by police with me at Bar.”
120. PW 1 states that “I do not remember the description of the
said persons. I cannot identify those persons due to passage of time.”
The Court, therefore, granted permission to the prosecution to cross
examine PW 1. The portions marked 'A', 'B', 'C', 'D', 'E' and 'F' in the
complaint at Exhibit 85 were confronted to this witness in the
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crossexamination. The said statements are reproduced below :
“ Portion 'A' :
FkksMh nsj ckn mues ls ,d vkneh 30 rs 35 lky
mez ds vkneh dks ftlus OgkbZV jax dh 'kVZ igsuh Fkh mls ysdj
”
vk;sA
[ Portion 'A' – Translated – After some time one amongst
them brought a person aged about 30 to 35 years wearing
white Tshirt. ]
“ Portion 'B' :
ckn es OgkbZV 'kVZ okyk vkneh ml CY;q 'kVZ okys
yMds dks ckjckj psd dj jgk Fkk vkSj ckdh yksx mlds vktqcktq [kMs
”
gksdj ns[k jgs Fks A
[ Portion 'B' – Translated – Subsequently a person wearing
white shirt was checking the person wearing blue shirt and
rest of the persons standing were watching him. ]
“ Portion 'C' : og ,d nqljs ds [kansij gkr j[kdj xys feydj
ckrfpr dj jgs Fks rks eq>s yxk dh og lHkh yksx ,d nqljs dks
igpkurs gS A rc CY;q 'kVZ igus gq;s vknehus OgkbZV 'kVZ okys vkneh
”
dks xkyhxyksp djuk 'kq# fd;k A
[ Portion 'C' – Translated – They were keeping hands on the
shoulder of each other and were talking and hugging. I
therefore thought that they were knowing each other. At
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that time person wearing blue shirt started abusing the
person wearing white shirt. ]
“ Portion 'D' :
fQjls dkmaVj ds ikl vkdj mlus mlds lkFkokys
vkneh ls votkj ekaxk rc mlds lkFk okys vkneh us mldks votkj
fn;k vkSj mlus votkj ysdj OgkbZV 'kVZokys vkneh dks fn[kkdj
Mjkus yxk A ”
[ Portion 'D' – Translated Again he came near the counter
and asked one of his accomplices to give weapon and the
accomplice gave it to him and threatening started to a
person wearing white shirt. ]
“ Portion 'E' :
rc muds lkFk okyk vkSj ,d yMdk nqcyk iryklk
yacs cky okyk ckj ds vanj ls vk;k vkSj mlus ogkWij j[kh dksYMªhad
dh ckWVy mBk;h vkSj mlls gekjs osVjksa dks Mjk;k A rc muds lkFk
okys vkSj nks vkneh ckgj ls dksbZ vk jgk gS dh ugh ;g ns[k jgs Fks
vkSj njokts ls vanj ckgj dj jgs Fks A ”
[ Portion 'E' – Translated – At that time, the accomplice or
one another of slim and heighted personality with long hair
came in the Bar, took up a bottle of cold drink and started
threatening the waiters. Two other persons accompanying
them started watching outside to see if there is someone
coming inside and they were going out and coming in. ]
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“ Portion 'F' : eS vxj mu vkneh;ksa dks okil ns[kaqxk rks igpku
yaqWaxk A ”
[ Portion 'F' – Translated – If I see the said persons I can
identify them. ]
The witness says that “I do not remember whether
deceased was wearing white shirt. I do not remember whether I had
stated to police that after some time one of them brought a person
aged 32 to 35 years wearing white shirt. I cannot assign any reason
why portion 'A' is appearing in my report.”
PW 1 further states that “I do not remember whether I had
stated to the police that the person wearing white shirt was checking
the person, wearing blue shirt. I do not remember whether other
persons were looking to them. I cannot assign any reason why
portion 'B' is appearing in my report.”
He further states that “I do not remember that all persons
were talking each other by hugging. It is not correct to say that I felt
that all those persons might be knowing each other. I do not
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remember person wearing blue shirt, started abusing the person
wearing white shirt. I do not know why portion 'C' is appearing in
my report.”
PW 1 further states that “As I was busy in my work,
therefore, I could not pay attention whether the person wearing blue
shirt, demanded weapon to the person who showed the weapon to
the person wearing white shirt and frightened him. I do not know
why portion marked 'D' is appearing in my report.”
PW 1 further states that “I do not remember whether out of
four persons, a thin person having long hair came from one side of
hall by taking one cold drink bottle and threatened the waiters of the
Bar. I do not remember out of those, two persons were looking
outside to see whether anybody come inside the bar and were
coming and existing from the door. I cannot assign any reason why
portion marked 'E' is appearing in my report.”
He further states that “I do not remember whether
I stated to police if, I had seen assailants, I can identify them.
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I cannot assign any reason why portion marked 'F' is appearing in my
report.”
PW 1 further states that “It is not correct to say that I am
deposing false that I do not remember, portion marked 'A' to 'F' to
police. It is not correct to say that I had stated portion marked 'A' to
'F' to police.”
121. The complaint at Exhibit 85 by PW 1 Raghuveer was
recorded by Police SubInspector Jagdish Pawar, PW 17. He states
that “I was asked to take the complaint of complainant. At about
8.00 p.m. complainant came to police station. I recorded his oral
complaint on computer. Complainant signed on the said
computerized report.” He identifies the complaint at Exhibit 85
shown to him and states that it bears his signature. He states that
the contents are written as per the say of the complainant and he
prepared the printed FIR and registered the offence under relevant
Sections vide Crime No.12/13 and the printed FIR is identified at
Exhibit 86, which bears his signature and the signature of the
complainant. He states that the portion marked 'A' to 'F' in the
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complaint at Exhibit 85 are written as per the say of the complainant.
In the crossexamination, he denies that the said portions were
written by him on his own.
122. PW 18 Vitthal, who took over the investigation on
1112013 at 9 a.m., states that the complainant approached him and
told that he wants to state something and, therefore, the
supplementary statement of the complainant was recorded as per his
say. The portions marked 'A' to 'F', appearing in the statement of
PW 1, recorded on 1112013, were confronted to him as
Exhibits 174A to 174F. The said statements are reproduced below :
“ Portion 'A' : dy eSus esjh vkW[kks ls [kqu gksrs gq;s ns[kus ls eS Mj
x;k Fkk vkSj [kqu djusokys xqaMks dh ng'kr dh otg ls iwjh tkudkjh
ugh ns ik;k Fkk vkSj [kqu djusokys xaqMks dk uke eq>s ekywe gksrs gq;s
Hkh eSus iqyhl dks ugh crk;k Fkk A ”
[ Portion 'A' – Translated – Yesterday I witnessed the
murder. However, I was scared and because of terror of
gundas I could not give the complete information to the
police in spite of knowing their names. ]
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“ Portion 'B' : dy rk- 10-01-2013 dks 'kke 05-30 cts ds vklikl
gekjs ckj es ges'kk vkusokys xzkgd rq”kkj nyky] dq.kky EgLds] yPNq
Qk;s vkSj fjadq fVpdqys vk;s A eSus dbZ ckj mudks m/kkj nk# fn gS
blfy, eS mUgs vPNs ls igpkurk gwW A ml fnu og yksx ckj esa
”
vkusij eSus ges'kk fd rjg mudks Xykl es 'kjkc fn A
[ Portion 'B' – Translated – Yesterday on 1012013 at
about 5.30, the usual customers in the Bar Tushar Dalal,
Kunal Maske, Lashu Faye and Rinku Tichkule came. I had
supplied them liquor on credit on earlier occasions and
therefore I know them very well. On that day I served them
liquor in the glass as usual, when they came in the Bar. ]
Portion 'C' : “ dqN le; ckn yPNq Qk;s gekjs ckj esa ges'kk
vkusokyk xzkgd ftldks esa m/kkj nk# fiykrk Fkk blfy, mls igpkurk
Fkk ml ftrw xkaoMs dks ckj esa ysdj vk;k A ”
[ Portion 'C' – Translated – After some time Lashu Faye who
is our usual customer to whom I know and used to serve
liquor regularly brought with him Jitu Gawande. ]
Portion 'D' : “
rq”kkj ftrw xkaoMs dks fganh esa cksyk] lkys ckj ckj
iSls ekWxrk gS rq>s fn[kkrk gWw A mrus es rq”kkj us fjadw dks dqN ekaxk
rc fjadw us mlds ikl dk pkdw tSlk votkj rq”kkj ds gkFk eS
”
fn;k A
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[ Portion 'D' – Translated – Tushar said in Hindi to Jitu
Gawande “Sale bar bar paise mangta hai, tuze dikhata hu”.
Immediately Tushar demanded something from Rinku and
Rinku immediately gave him weapon like knife to Tushar. ]
Portion 'E' : “ mrus esa dq.kkyus vius ikl dk pkdw fudkydj ftrq
xkaoMs dks ekjus ds fy,s nkSMk rc yPNq Qk;s dq.kky vkSj rq”kkj dks
cksy jgk Fkk “ ftR;k dks NksMks er ekj Mkyks ” A rc rq”kkj vkSj dq.kky
”
us ftrq xkaoMs dks pkdq tSls votkj ls ekjuk 'kq# fd;k A
[ Portion 'E' – Translated – Immediately Kunal took out the
knife and started assaulting Jitu Gawande and at that time
Lashu Faye told Kunal and Tushar “Don't leave Jitya, kill
him.” At that time Tushar and Kunal started assaulting Jitu
Gawande with knife. ]
Portion 'F' : “
mrus esa esjs ckj ds vksiu jsLVkWjaV dh rjQ ls
gekjs ckj es ges'kk vkusokyk veksy ekankGs ;g Hkh ogkWij vk;k A ”
[ Portion 'F' – Translated – Immediately Amol Mandale our
usual customer came inside the Bar from the open
restaurant. ]
PW 18, in response to the questions put to him in
crossexamination in para 22, states that on 1112013 at
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about 9 a.m., he recorded the statement of the complainant and it
lasted for 15 minutes.
123. PW 1 Raghuveer states that “On 1112013, my statement
was not recorded by police.” He states that “I cannot assign any
reason why portion marked 'A' is appearing in my supplementary
statement.”
He states that “It did not happen that the customer Tushar
Dalal, Kunal Maske, Lassu Faye and Rinku Chitkule who used to visit
frequently in our bar, had been to my bar on 1012013 at about
5.30 p.m.” He states that “I cannot assign any reason why portion 'B'
is appearing in my supplementary statement.”
PW 1 states that “It did not happen that after some time,
Lashu Faye brought Jitu Gawande in the bar. I cannot assign any
reason why portion marked 'C' is appearing in my supplementary
statement.”
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He states that “As I was busy in my work, therefore, I do
not say that after some time Tushar asked Jitu Gawande “ sale bar bar
Paise mangta hai, tuze dikhata hu ”, therefore, Tushar demanded
something to Rinku then Rinku gave weapon like knife to Tushar.
I cannot assign any reason why portion marked 'D' is appearing in my
supplementary statement.”
PW 1 states that “ It did not happen that when Kunal also
rushed to assault Jitu Gawande by taking out knife, Lashu Faye told
Kunal and Tushar “ Jitya ko chodo mat, mar dalo ”. ” He states that “It
is not correct to say that I had stated to police that Tushar and Kunal
started assaulting Jitu Gawande by means of knife.” He further
states that “I cannot assign any reason why portion marked 'E' is
appearing in my supplementary statement.”
He states that “It did not happen that Amol Mandale, who
used to often visit my bar, came there. I cannot assign any reason
why portion marked 'F' is appearing in my supplementary statement.
It is not correct to say that as I was knowing the name of assailants,
therefore, I had stated their names to police. I cannot say that
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accused are the same persons, who are assailants in the incident
dt 1012013.”
124. Though PW 1 Raghuveer stated that Raju Varghat was
present on the spot of incident when the incident happened,
PW 2 Raju denies his presence on the spot and claims ignorance
about the incident. He was confronted with the statements said to
have been recorded by the police under Section 161 of the Code of
Criminal Procedure on 1012013, marked as 'A', 'B', 'C', 'D', 'E', and
'F', which are reproduced below :
“ Portion 'A' :
'kke 05-30 cts ds vklikl ckj es fHkM ugh Fkh rc
ckj es pkj ikWp yksx vk, ftudh mez vanktu 25 ls 30 lky gksxh
og dkmaVj ds ikl [kMs gksdj mUgksus mudk vkWMZj fn;kA FkksMh nsj
ckn ,d 30and35 lky mez dk vkneh ftlus OgkbZV jax dh 'kVZ
igus Fkh og vk;k vkSj og yksx dkmaVj ds ikl [kMs jgdj ejkBh es
ckrphr djus yxs A rc OgkbZV 'kVZ iguus okys vkneh CY;q 'kVZ
igus gq;s vkneh ls tksjtksjls ckr dj jgk Fkk vkSj CY;q 'kVZokyk
vkneh OgkbZV'kVZ igus vkneh ds lkFk iSls ds ysu nsu ds ckjs es
ckrfpr dj jgk FkkA ”
[ Portion 'A' – Translated – In the evening at about 5.30
there was no rush in the Bar and at that time 4 to 5 persons
aged about 25 to 30 years came near the counter in the Bar
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and gave order. After some time one person wearing white
shirt aged about 30 to 35 years came inside and all of them
were standing in front of the counter and talking in Marathi.
At that time, person wearing white shirt started talking to
person wearing blue shirt in a loud voice on the money
transaction. ]
“ Portion 'B' : ckn es ckrks gh ckrks es mudk >xMk gks x;k vkSj og
,d nqljs dks xkyhxyksp djus yxsA rc CY;q 'kVZ okys ftldh mez
25 ls 30 lky dh] nqcyk iryk vknehus mlds lkFk vk;k gqvk xksy
psgjsokyk ftldh mez vanktu 25 ls 30 lky gksxh mlls pkdq ekaxk
”
rks mlus vius ikl dk pkdq CY;q 'kVZ okys yMds ds gkr es fn;k A
[ Portion 'B' – Translated – Subsequently the altercations
between them started, converting in quarrel and abusing
each other. At that time person wearing blue shirt aged
about 25 to 30 years having slim personality demanded knife
from a person with a round face aged about 25 to 30 years,
who gave it to him. ]
Portion 'C' : “ rc CY;q 'kVZ okys yMds us OgkbZV 'kVZ okys vkneh
dks votkj ls ekjuk 'kq# fd;kA rc esjs eWustjus mudks >xMk er
djks ,slk dgkA mrus es ekjusokys vkneh ds lkFk vk;k gqok lQsn Vh
'kVZ okyk] mapk vkSj ftlus nk<h j[kh Fkh og vkneh us Hkh mlds ikl
”
dk pkdq fudkydj ml OgkbZV 'kVZokys vknehij okj fd;sA
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[ Portion 'C' – Translated – At that time, person wearing
blue shirt started assaulting the person wearing white shirt.
At that time Manager started intervening. One amongst the
assaulters wearing white Tshirt, heighted and having beard,
took out the knife and started assaulting a person wearing
white shirt. ]
Portion 'D' : “ rc esjk eWustj >xMk NqMkus x;k rks mlh nk<hokys
us pkdq fn[kkdj esjs eWustj dks Mjk;kA ”
[ Portion 'D' – Translated – At that time Manager tried to
pacify but the person having beard threatened the Manager
with knife. ]
Portion 'E' : “ rHkh ,d vkneh ftldh mez 30and35 lky gksxh
ftlds lj ds lkeus ds cky de Fks vkSj xksjk fpV~Vk Fkk tks ekjus
okys yksxks ds lkFk vk;k Fkk vkSj ogh dkmaVj ds ikl [kMk Fkk A og
vkneh pkdq ls okj djusokys nksuks dks dg jgk Fkk ftR;k dks ekj
MkyksA ”
[ Portion 'E' – Translated – At that time, a person aged
about 30 to 35 years, having thin hair on the head and came
along with the assailants, was also standing near the
counter. He started saying the assaulters “Kill Jitya”. ]
Portion 'F' : “ ,d vkneh nqcyk vkSj yacs ckyksokyk] 25 ls 30
lky mezokyk ekjusokys yksxks ds lkFk Fkk vkSj OgkbZV 'kVZokyk vkneh
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fups fxj ugh jgk Fkk mlus ekjus okys nksuks ds pkdq idM j[ks Fks
rch OgkbZV 'kVZokys dks fxjkus ds fy, mlus vius gkr es ckj es
j[kh gqbZ dksYMªhax dh ckWVy mBk;h rc rd OgkbZV 'kVZ okyk vkneh
Q'kZij fxj x;k vkSj rc yacs ckyokys vknehus gedks ns[kdj ml
ckWVyls Mjk;k A ”
[ Portion F – Translated – The person wearing white shirt
was not falling down and he caught the knife in his hand.
At that time, another person of a slim personality, having
long hair, aged about 25 to 30 years, accompanying the
assailants, picked up a cold drink bottle. In the meantime,
the person wearing white shirt fell down and we were
threatened with the bottle of cold drink. ]
PW 16 Rupali, the Investigating Officer, states in para 4 of
her deposition that “I recorded the statement of Raju Varghat.
Portion marked 'A' to 'F' in his statement were recorded as per his
say. It is marked at Exhibits 168A to 168F.”
125. PW 1 Raghuveer also states that Sitaram Baburao
Wankhede, PW 3, was also present when the incident occurred. The
statement of PW 3 was recorded on 1012013 by
PW 16 Rupali, the Investigating Officer. Portion marked 'A' in the
statement of PW 3 recorded in Marathi is reproduced below :
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Portion 'A' : “
eyk vkeps ckjps dkmaVjps fn'ksus HkkaM.k gks.;kpk
vkokt vkyk o rs ikg.;klkBh eh frdMs xsyks- rsOgk dkmaVj leksj
,dk ika<jk 'kVZ ?kkrysY;k O;Drhoj nksu yksd pkdqus okj djhr gksrs-
okj dj.kkand;k blekaiSdh ,d map o nk<h vlysyk o ika<jk fV
'kVZ ?kkrysyk etcqr cka/;kpk gksrk rj nqljk lk/kkj.k maphpk lMikrG
o fuG;k jaxkpk 'kVZ ?kkrysyk gksrk- rsOgk vkeps eWustj ;kauh R;kauk
HkkaM.k d# udk vls lkafxrys vlrk ekj.kkand;k blekaiSdh nk<hokY;k
blekus vkeps eWustjyk pkdq nk[koqu /kedkoys- njE;ku ,d 30 rs
35 o;kpk o ekj.kkand;kaP;k cjkscj vlysyk iq<s VDdy vlysyk
xksjk ble dkmaVjoj mHkk gksrk o rks pkdqus okj dj.kkand;k blekauk
ekj.;klkBh lkaxr gksrk- rsOgk ekj.kkand;kapk ,d lkFkhnkj tks xksy
psgand;kpk] xksjk] Qqy ckghpk fV'kVZ ?kkrysY;k 20 rs 30 o;kpk gksrk
rks ckjps vkr ckgsj djhr gksrk- R;akpk vk.k[kh ,d lkFkhnkj lMikrG]
dkGklkoGk o ykac dsl vlysyk tks vkeps vksiu jsLVkWjaV dMqu
vkyk o ekj [kk.kkjk tehuhoj iMr uOgrk o R;kus ekj.kkand;kaps
nksUgh pkdq idMysys gksrs o ekj.kkjs R;kl [kkyh ikM.;kpk iz;Ru
djhr gksrs o rks iMr uOgrk rsOgk R;kus ckje/khy ,d dksYMªhadph
ckWVy mpyyh o ekj [kk.kkand;kps fn'ksus xsyk brD;kr ekj [kk.kkjk
[kkyh iMyk rsOgk dksYMªhad ckWVy gkrkr ?ksrysyk ble ekxs vkyk o
R;kus vkEgkyk ikgqu /kedkoys o dkgh osGkus rs loZ ekjsdjh ekj
”
[kk.kkjk esyk vls letqu rsFkqu ckgsj fu?kqu xsysA
[ Portion 'A' – Translated – I heard the noise from the
counter and therefore I went there. I saw that a person
wearing white shirt was being assaulted by two persons with
knife. One was strong and stout, having beard, wearing
white shirt, and the other was slim and wearing blue shirt.
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At that time our Manager asked them not to quarrel, but he
was threatened by a person having beard with knife. In the
meantime, one accomplice aged about 30 to 35 years was
standing on the counter and asking the assailants to kill. At
that time, one of the assailants, having a round face, fair in
colour, wearing full Tshirt, aged about 20 to 30 years, was
going out and coming in the Bar. Along with him, one more
accomplice of slim personality, having long hair, came inside
from the open restaurant and picked up a cold drink bottle,
as he saw the person assaulted was not falling on the floor
and had caught hold of the knives. However, immediately
the person assaulted fell on the floor and the person having
cold drink bottle in his hand came back and started
threatening us. Subsequently all of them left, presuming that
the person assaulted has died. ]
PW 16 states in her deposition in para 5 that “I recorded
statement of Sitaram Wankhede. Portion marked 'A' in his statement
was recorded as per his say and it is marked as Exhibit 169.”
126. PW 1 Raghuveer, the Manager, though deposed the entire
incident, states in para 7 of his deposition that “I do not remember
the description of the said persons (assailants). I cannot identify
those persons due to passage of time.” He stated that at the time of
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incident, CCTV cameras were on and he can identify footages of the
incident, and after seeing it, he can identify the assailants. At that
stage, APP made request to the Court to show CCTV footage from the
CD deposited in the Court. It was objected on the ground that the
accused are not shown to the witness and the witness has not turned
hostile. Keeping the objection open, the Court granted permission to
the learned DGP to show the CCTV footage. The CD deposited in the
Court was, therefore, opened and played in the laptop. The Court
noted that none of the defence counsel or the DGP objects about
nonfunctioning of the laptop. However, the objection of the defence
was that it is only after showing CD, further evidence of this witness
can be recorded. The Court, keeping aside the objection to be
decided subsequently, permitted playing of CD in the laptop.
127. In the footage of camera No.1 started running,
PW 1 identified himself and one Anil Tiwari present at the time of
happening of the incident and says that “I can identify the
assailants”, immediately turns around, and says that “I cannot
identify the assailants because the video is not so clear.” Except
refusing to identify the accused persons/assailants, the deceased and
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the clothes worn by them, there is complete narration of
incident – step by step – identifying every other thing shown in the
footages. The CD, which was played, was marked as 'X' for
identification and it was resealed by the Court.
128. PW 2 Raju Vargat, the Waiter in the Bar, who also admits
his presence at the time of incident along with 2 to 3 other Waiters,
refused to identify the accused persons even in the Test Identification
Parade. He states that at the time of incident he was inside the
kitchen and does not know what happened after 2.30 p.m. He was
permitted to be crossexamined by APP. In crossexamination, he
states that “My statement was recorded by police on 1012013.” He
further states that “I cannot assign any reason why portion marked A,
B, C, D, E and F is appearing in his statement.” After he was
confronted with CD, marked as 'X' for identification, which was run
in the laptop, he fails to identify the accused persons or the
assailants.
129. PW 3 Sitaram, working as Cook, admits that at the time of
incident, he was himself and PW 1 Raghuveer, PW 2 Raju Vargat,
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and one Tiwari were present inside the Bar. He, however, says that
“I was inside the kitchen and, therefore, I do not know what
happened in the Bar and I came to know about murder after the
incident, which took place near the counter.” He accepts to have
signed the inquest panchanama at Exhibit 92. This witness also
refused to identify the assailants in the Test Identification Parade.
The Court permitted APP to crossexamine him. He claimed complete
ignorance about the incident and the assailants.
Concurring with the findings of Sessions Court :
130. The Sessions Court holds that though PW 1 Raghuveer,
the Manager, identified his Bar, the entire articles in the Bar,
including the staff, and also the incident happened, as appearing in
the CD, he fails to identify the assailants as the accused persons.
This witness did not support the theory of the prosecution to identify
the assailants. It further holds that PW 2 Raju saw the murder, but
went on deposing that he does not know who committed the murder.
He identified the Bar and the Manager, but failed to identify the
assailants as the accused persons when he was confronted with
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DVD – Article 18A. It further holds that PW 3 Sitaram was also
shown CCTV camera footages. Though he identified the Manager,
waiter Anil did not identify the assailants in the CD as the accused
persons. We endorse the view taken by the Sessions Court. Not only
that, but we proceed further and hold that there is a deliberate
design on the part of the eyewitnesses in failure to identify the
assailants as the accused persons, obviously for the reasons best
known to them.
Law on unlawful assembly and criminal conspiracy :
131. The accused are held guilty of the offences punishable
under Sections 302 read with Sections 120B and 149 apart from the
offences under Sections 147, 148 and 506B of IPC. The offences
under Section 147 deals with punishment for rioting, Section 148
deals with rioting, armed with deadly weapon, and Section 149
makes every member of unlawful assembly guilty of offence
committed in prosecution of common object. Section 120B of IPC
deals with punishment for 'criminal conspiracy', as defined under
Section 120A of IPC.
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132. So far as the offence punishable under Section 149 of IPC
making a member of unlawful assembly guilty of offence committed
in prosecution of common object is concerned, three ingredients are
required to be satisfied – (1) there must be an unlawful assembly of
five or more persons, (2) there must be commission of offence by any
member of an unlawful assembly, and (3) such offence must be
committed in prosecution of the common object of that assembly, or
such as the members of that assembly knew to be likely to be
committed in prosecution of that object. The common object has to
be inferred from the facts and circumstances of the case. It is enough
if each has the same object in view and their number is five or more
and they act as an assembly to achieve that object. The common
object may be formed at any stage by all or a few members of the
assembly and the other members may join or adopt it. Once the
ingredients of the offence punishable under Section 149 of IPC are
established, it is immaterial that any person of unlawful assembly did
nothing with his own hands. It is the common object which makes
the person vicariously liable for the acts of an unlawful assembly.
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133. Section 120A of IPC defines 'criminal conspiracy'. It states
that when two or more persons agree to do, or cause to be done
(1) an illegal act, or (2 ) an act which is not illegal by illegal means,
such an agreement is designated a criminal conspiracy. The proviso
clarifies that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act besides
the agreement is done by one or more parties to such agreement in
pursuance thereof. The explanation clarifies that it is immaterial
whether the illegal act is the ultimate object of such agreement, or is
merely incidental to that object. Section 120B of IPC, dealing with
the punishment of criminal conspiracy, stipulates in subsection (1)
that whoever is a party to a criminal conspiracy to commit an offence
punishable with death imprisonment for life or rigorous
imprisonment for a period of two years or upwards, shall, where no
express provision is made within Code for the punishment of such a
conspiracy, be punished in the same manner as if he had abetted
such offence.
134. In the decision of the Apex Court in the case of Mukesh v.
State (NCT of Delhi) , reported in (2017) 6 SCC 1 , the purpose of the
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provisions and principles are highlighted, which we propose to state.
The underlying purpose for the insertion of Sections 120A and
120B of IPC was to make a mere agreement to do an illegal act or an
act which is not illegal by illegal means punishable under law.
Criminal thoughts in the mind when take concrete shape of an
agreement to do or cause to be done an illegal act or an act which is
not illegal by illegal means then even if nothing further is done an
agreement is designated as a criminal conspiracy.
135. The decision in Mukesh's case lays down that it is
extremely rare that direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested quarters or from utter
strangers. Hence, the criminal conspiracy can be proved by
circumstantial evidence. The illegal act may or may not be done in
pursuance of agreement, but the very agreement is an offence and is
punishable. Entering into an agreement by two or more persons to
do an illegal act or legal act by illegals means is the very
quintessence of the offence of conspiracy. While dealing with the act
of criminal conspiracy, the Court has to enquire whether the two
persons are independently pursuing the same end or they have come
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together in the pursuit of an unlawful object. The former does not
render them conspirators, but the latter does. It is essential that an
offence of conspiracy requires some kind of physical manifestation of
agreement. The evidence as to the transmission of thoughts sharing
the unlawful design may be sufficient.
136. The decision in Mukesh's case further holds that to
constitute a criminal conspiracy, it is not necessary that all the
conspirators must know each and every detail of the conspiracy.
Neither is it necessary that every one of the conspirators takes active
part in the commission of each and every conspiratorial acts. The
conspiracy is seldom an open affair and agreement can be inferred by
necessary implication. Everything said, written or done by any of the
conspirators in execution or furtherance of the common purpose is
deemed to have been said, done, or written by each of them. And
this joint responsibility extends not only to what is done by any of
the conspirators pursuant to the original agreement, but also to
collateral acts incident to and growing out of the original purpose.
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Objection to the identification of accused :
137. Shri Adwait Manohar, the learned counsel appearing for
one of the accused, invited our attention to the oral evidence of the
complainant PW 1 Raghuveer, who has deposed that on the date of
the incident at about 5 to 5.30 p.m., four persons entered the Bar
and one of them came to his counter and made a demand for peg.
The other three persons were standing behind him and all of them
looking outside the Bar again and again giving an impression of
waiting for someone's arrival. He submits that in the absence of
identification of these four persons out of six, and attributing specific
acts to each of them, it is not possible to convict the accused persons
in respect of the offences alleged to have been committed by them.
Our findings on identification of accused, unlawful
assembly and criminal conspiracy :
138. It is not in dispute that PW 1 Raghuveer was the Manager
in the enclosed Bar, sitting on the counter. Obviously, he could say
something definite about the persons who entered the Bar. He
deposes that the four persons entered the Bar and one of them came
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to his counter and demanded a peg. The other three persons were
standing behind him. He deposes that the assault was by two
persons by means of knives which they might have brought with
them. He does not speak of the remaining two assailants, other than
four. In our view, if the evidence brought on record establishes an
unlawful assembly of six persons/assailants, who have conspired to
commit an offence of murder of deceased Jitu, which is
accomplished, the question as to which four out of six assailants have
assaulted the deceased by knives, loses its significance, for the reason
that they are found to be the members of unlawful assembly and the
participants in the conspiracy. Merely because PW 1 Raghuveer
could see only the activities of four assailants, would not be enough
to destroy the story of the prosecution.
139. We ourselves have seen the CCTV footages recorded in the
primary document of Hard Disk seized at Exhibit 1, by getting DVR
seized assembled. We also saw the footages in CD – 'X' and
DVD Article 18A seized, in the laptop. The assailants were six in
number. Four of them came inside the Bar. They were waiting for
someone to come in the Bar. One of them wearing blue coloured
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shirt was near the counter and started consuming a peg of liquor
served to him, probably on his demand. The other three assailants
were standing behind him and all of them were seen to be waiting
for somebody, as they were looking outside the Bar again and again.
After some time, a white coloured big car came outside the Bar and a
person wearing white shirt (referred to now as “the deceased”, since
his identity is not in issue) alighted from it and came along with one
another accomplice, inside the Bar. Thus we found in the CCTV
footages a group or an assembly of five assailants/persons inside the
Bar along with the deceased.
140. Then we saw in the footages, the altercations were
between the deceased and the person wearing blue shirt who was
consuming liquor. The accomplice, who brought the deceased, left
the Bar and went outside. One of the accomplices in the assembly of
four inside the Bar, supplied a knife to a person wearing blue shirt,
who started assaulting the deceased. Thereafter one another
assailant/person in the assembly wearing white Tshirt having beard
and heighted strong personality, took out a knife, which was already
with him, and joined the assault on the deceased. When the inmates
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other than the assailants in the Bar tried to proceed, one of the
accomplices brandished them with cold drink bottle picked up from
the Bar. After some time only two persons assaulting the deceased
remained in the Bar and others went outside. After the object was
accomplished, one of the two assailants firstly came out and fled
away from the spot as a pillion rider, on a motorcycle of one more
accomplice waiting as rider on it. The assailant wearing blue shirt
came outside the Bar and along with four others, boarded a 'Ritz' car
standing outside the gate of the Bar and fled away. Thus, it was
clearly a group or an assembly of six assailants involved in the attack
on the deceased Jitu, playing different roles to attain a common
object.
141. We find that an assembly of six assailants was constituted,
as all of them came together at the Bar. Some of them were inside
the Bar and the others were outside. Their body language and the
movements in and out of the Bar were uncomfortable and suspicious.
The stability was in the movement of one of the assailants in blue
shirt, consuming a peg of liquor besides the counter. There was a
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close watch by all of them on the inmates of the Bar as well as the
surroundings outside the Bar. One of the assailants outside the Bar
brought the deceased inside the Bar. The deceased also seemed to
be in a drunken condition, as he came with the support of one of the
assailants. The assailant in blue shirt and the deceased started
talking to each other. The deceased was also hugging the said
assailant and the body language of both showed their previous
acquaintance or friendship.
142. After some time, the deceased checked the person of the
assailant in blue shirt. The other assailants were in a position
protective to the assailant in blue shirt. None other than the
assailant in blue shirt was talking to the deceased and they were
watchful on the movements of both. The assailant in blue shirt was
trying to find an opportunity which he exploited when none other
than the four assailants were in the Bar, apart from the staff. He
shut the glass door, demanded the knife, which was provided by one
of the assailants, and started assaulting the deceased. The other
assailant, who was already having a knife, took it out and joined the
assault on the deceased. Rest of the assailants inside the Bar took
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care to see that no one intervenes and at times brandished those who
tried to intervene. The deceased was multipally stabbed by both the
assailants. After some time, the other assailants left the Bar, except
the two who continued the assault probably till the deceased was
finished. The assaulter in white Tshirt having beard and strong
personality tried to leave the Bar, but then again turned and pulled
the assailant in blue shirt to come out. The assailant in blue shirt
was continuing the assault probably to ensure that the deceased does
not survive and thereafter both of them went outside. Four
assailants boarded the 'Ritz' car standing outside the gate of the Bar
and one assailant having beard, sat as a pillion rider on the
motorcycle. Thus, the two assailants fled away on the motorcycle.
143. PW 4 Pramod was shown CCTV footages and he has
identified all the six accused and attributed to all of them the specific
acts appearing in the CCTV footages. His evidence of identifying the
assailants as the accused persons has already been held to be
trustworthy by us. He states that accused No.1 Tushar and accused
No.2 Kunal were assaulting Jitu by knife, accused No.5 Rinku
Tichkule provided the knife, accused No.3 Lashu Faye was standing
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along with the accused Nos.1, 2 and 5 inside the Bar, accused
No.5 Amol Mandale came from backside of the Bar and brandished
the persons in the bar with a cold drink bottle, accused No.6 Sameer
was standing outside the Bar near the gate, and he identified all the
accused Nos.1 to 6.
144. We are of the view that the oral evidence of PW 4 Pramod
and the CCTV footages contained in the primary evidence of Hard
Disk and those contained in CD – 'X' and DVD – Article 18A read
with the oral evidence of PW 19 Ms Puja and her report at Exhibit 57
clearly establish an unlawful assembly of six accused persons, who
had conspired to commit the murder of deceased Jitu at the given
time and place. It was preplanned or premeditated. Each of the
member of unlawful assembly was assigned a specific role, which
everyone has performed. It was a smooth operation carried out. The
offence of murder was committed in prosecution of common object
to get rid of the demand for money by the deceased. Upon
accomplishing the purpose, they fled away from the spot of incident
with the bloodstained knives in their hands on two vehicles, i.e.
'Ritz' car and Hero Honda 'Splendor' motorcycle. The common object
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of murder of the deceased got terminated or accomplished. We
have, therefore, no hesitation to confirm the findings of the Sessions
Court that the offences punishable under Section 149 and 120B of
IPC are fully established.
Chain of the facts and circumstances established :
145. We now turn to the facts and circumstances of the case,
which are established and we narrate the same serially as under :
(1) The deceased Jitu was murdered in the Seven Hills
Bar and Restaurant (“the said Bar”) on 1012013 at
5.30 p.m.
(2) The spot of incident, its surroundings, installation
of CCTV system and its functioning on the date and time of
incident are established. [Para 23] .
(3) The accused No.1 Tushar and accused No.2 Kunal
were arrested on 1112013 at 05.30 hours, the accused
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No.3 Lashu, No.4 Amol and No.5 Bhupesh were arrested
subsequently on 1112013. The accused No.6 was arrested
on 1712013. They continue to remain in jail till today.
[Para 24].
(4) Consequent upon the information given by the
accused No.1 Tushar, knife stained with blood as
Article 1A, was recovered under Section 27 of the Evidence
Act along with jeans and shirt, i.e. Articles 16 and 17,
having blood stains, wore by him vide Exhibit 139.
[Paras 28 and 35].
(5) The information furnished by the accused
No.2 Kunal led to recovery of bloodstained knife under
Section 27 of the Evidence Act, seized on 1312013 vide
Exhibit 147 and marked as Article A2. [Paras 30 and 35].
(6) The accused No.5 Bhupesh alias Rinku furnished
the information on the basis of which the 'Ritz' car having
registration No.MH31 EA 6696 was recovered and seized
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on 1412013 vide Exhibits 182 and 153.
[Paras 31 and 35].
(7) The accused No.6 Sameer furnished the
information in respect of twowheeler Hero Honda
'Splendor', bearing registration No.MH31 AW 7400, which
was seized on 1912013 under the seizure memo at
Exhibit 149. [Paras 32 and 35].
(8) The clothes of the deceased having blood stains
were seized on 1112013. [Para 33].
(9) All the clothes seized and sealed were forwarded to
the Regional Forensic Science Laboratory at Nagpur for
chemical analysis on 1912013 vide Exhibit 189. The
weapons, i.e. knives, seized and sealed were forwarded on
422013 to the Chemical Analyzer vide Exhibit 207.
[Para 34] .
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(10) Exhibits 68 and 69 are the reports of the Chemical
Analyzer in respect of the blood found on the knives seized
from the accused Nos.1 and 2 and on Articles 16 and 17,
the clothes of the accused No.1 Tushar as of human.
[Para 37].
(11) PW 10 Dr. Nitin, who conducted the post
mortem over the body of the deceased Jitu, gave his
opinion at Exhibit 143 on 222013 in respect of the
weapon queries at Exhibit 142 dated 222013, stating that
the injuries on the body of the deceased Jitu are possible
by the knives at Articles 1A and A2. User of weapons
recovered and seized under Section 27 of the Evidence Act,
in the crime in question, is established. [Para 38].
(12) The finger prints of the accused No.1 Tushar are
found on the glass seized from the counter of the said Bar
on 1012013 and the report at Exhibit 131 compares the
chance finger prints at Exhibit 126 with the finger prints of
the accused No.1 Tushar at Exhibit 120 and establishes
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the presence of accused No.1 on the spot of incident at the
time of occurrence. [Para 61].
(13) For the purposes of security, a system of CCTV,
consisting of eight cameras and one DVR containing Hard
Disk of 500 GB for storage of video recording, well
connected with cables, was found installed and functioning
properly. The entire incident of murder of Jitu Gawande
was recorded in the Hard Disk at Exhibit 1, contained in
the DVR. [Para 68] .
(14) The entire system of CCTV cameras installed and
functioning in the said Bar at the time of incident,
consisting of DVR, Hard Disk, Adapter, Mouse, Remote,
and CD 'X' were seized and sealed at Exhibit 99 on
1012013 and PW 16 Rupali identified the same in Court.
[Para 69].
(15) CD – 'X' is a true and genuine copy of the
footages in camera Nos.1, 2 and 7 in the Hard Disk at
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Exhibit 1. [Para 70] .
(16) Full size photographs of all the accused were
snapped by PW 20 Nitin Watkar of Diamond Photo Studio
on 1812013 at Exhibits 197 to 202. All these photographs
of the accused along with the Hard Disk, DVR, Remote,
Charing Cable, Mouse, etc., were forwarded on 322013 in
a sealed envelope along with the covering letter
dated 222013 at Exhibit 195 to the Directorate of
Forensic Science Laboratory at Mumbai for submitting the
report on the queries made therein. [Paras 71 to 74].
(17) PW 19 Ms Puja, the Scientific Officer, working in
the office of Forensic Science Laboratory at Mumbai, has
proved the DVD, marked as “Annexure DVD CY 66/13”
(Article 18A), as the true and genuine copy of the Hard
Disk at Exhibit 1. The frames of persons selected from
CCTV footages are found matching with those reference
photographs at Exhibit 197 to 202 and report at Exhibit 57
is proved. [Para 81].
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(18) There was no scope left out for tampering in the
process of seizure, sealing, forwarding and receipt of all
the articles sent to PW 19 and no questions were put to
PW 19 impeaching her credit, as required by Section 155
of the Evidence Act. [Para 85] .
(19) PW 4 Pramod, the brother of the deceased, has
proved motive on the part of accused No.1 Tushar, to
whom the deceased was demanding refund of Rs.50,000/
lent to him. [Para 88].
(20) PW 4 Pramod identified the assailants as the
accused persons and attributes to each of them the specific
role played by them, on the basis of the CCTV footages
shown to him during the examinationinchief before the
Court. [Para 89].
(21) The primary evidence in the form of electronic
evidence of Hard Disk and the copies of it in the form of
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CD, marked as 'X' for identification, and DVD as
Article 18A, found to be true and genuine copies of the
footages contained in the Hard Disk, are produced on
record and proved. [Paras 109 to 113].
(22) We ourselves have seen/viewed the primary
electronic evidence in the form of CCTV footages from the
Hard Disk at Exhibit 1 and we have also viewed CD – 'X'
and DVD – Article 18A and we neither find any difference
in it or discontinuity or insertions not found in the Hard
Disk at Exhibit 1. On the contrary, we find that it
corresponds with each other and are true and genuine. It
is consistent with the oral evidence of the witnesses also.
[Paras 114 and 115] .
(23) The electronic evidence tendered in the form of
Hard Disk at Exhibit 1, CD – 'X' and DVD – Article 18A, is
admissible in the facts and circumstances of this case,
without a certificate under Section 65B of the Evidence
Act. [Para 116] .
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(24) The eyewitnesses to the incident, who are
PW 1 Raghuveer, PW 2 Raju, and PW 3 Sitaram, have
turned hostile and refused to identify the accused persons
for the reasons best known to them. [Para 130].
Unlawful assembly and criminal conspiracy :
(25) CCTV footages in the Hard Disk at Exhibit 1
clearly indicate that the assailants were six in number,
constituting an unlawful assembly, out of whom, four were
inside the Bar, one of them wearing blue shirt was near the
counter and consuming the peg of liquor, and the other
three were standing behind him. [Para 138] .
(26) A person wearing white shirt (the deceased)
alighted from the car outside the gate and he was brought
inside the Bar by one another accomplice. Thus, there was
a group of five persons inside the Bar along with a person
who came in the white shirt. [Para 139] .
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(27) A person wearing blue shirt was supplied a knife
by one of the accomplices and he started assaulting the
deceased who came in the car. One another assailant
wearing white Tshirt having beard and heighted
personality also joined the assault on a person wearing a
white shirt. One of the five accomplices in the Bar
brandished the inmates of the Bar other than the assailants
with cold drink bottle when then tried to intervene.
[Para 140] .
(28) After the object of killing the deceased was
accomplished, the assailant wearing blue shirt came out of
the Bar and along with four others boarded the 'Ritz' car
outside the gate and fled away and two others fled away
on the motorcycle. [Para 140] .
(29) PW 4 Pramod has identified all the six accused
persons as the assailants and attributed to all of them the
specific acts appearing in the CCTV footages confronted to
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him during the course of his examinationinchief.
[Para 143] .
Our conclusion :
146. After narrating the facts and circumstances proved on
record and keeping in view the law laid down in para 153 by the
Apex Court in the matter of circumstantial evidence in the case of
Sharad Birdhichand Sarda v. State of Maharashtra , reported in
(1984) 4 SCC 116 , we hold that the facts and circumstances
established in the present case are conclusive in nature pointing
towards the guilt of all the accused persons for the offences alleged
against them. The chain of circumstantial evidence is completely
established, without any missing link. The facts and circumstances
proved are consistent only with the hypothesis of the guilt, without
leaving any reasonable ground for the conclusion consistent with the
innocence of the accused persons and exclude every possible
hypothesis except the one which is proved, i.e. the guilt of the
accused for the offences alleged. The offences alleged against all the
accused are established beyond reasonable doubt. We are, therefore,
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constrained to maintain the conviction of the accused persons
recorded by the Sessions Court for the offences punishable under
Sections 302, 120B, 147, 148, 149 and 506B of IPC along with the
sentence imposed upon each of them for the offences established and
the fine imposed.
147. We, therefore, dismiss all these appeals. We direct the
office to reseal all the articles, which were opened by us, and remit
back to the Sessions Court along with the R & P.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
PD Lanjewar, PS
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