IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Appeal Nos. 503, 507, 572 of 2013, 278 and 279 of 2014
Decided On: 05.09.2019
Lalit Ramesh Prabhawat Vs. State of Maharashtra
Hon'ble Judges/Coram:
Z.A. Haq and Vinay Joshi, JJ.
Author: Vinay Joshi, J.
Citation: 2019 SCC OnLine Bom 1808,MANU/MH/3348/2019
1. These appeals arise out of a judgment and order of conviction dated 30.7.2013, passed in Sessions Trial No. 14/2000 by the learned Additional Sessions Judge, Warora. Accused were charged for criminal conspiracy, abduction, abatement and murder of Advocate Pradeep Nalamwar and Vijay Bisne. One of the accused was also charged for the offence punishable under the Arms Act. After holding trial, the Court below has convicted accused Nos. 1, 3, 4, 7 and 8 for criminal conspiracy punishable under section 120B of the Indian Penal Code, and for Murder, punishable under section 302 of the Indian Penal Code. Accused Nos. 1, 7 and 8 are also convicted for the offence punishable under section 364 read with section 109 of the Indian Penal Code. Besides that accused No. 1 is convicted also for the offence punishable under section 3 read with section 25 of the Arms Act. However, the trial Court has acquitted accused Nos. 2, 3 and 6 of all the charges.
2. Being aggrieved and dissatisfied by the said judgment and order of conviction, the accused Nos. 1, 3, 4, 7 and 8 have preferred separate appeals, challenging their conviction on almost similar grounds. For the sake of convenience we prefer to decide all these appeals by this common judgment. The State Government has neither challenged the acquittal of accused Nos. 2, 5 and 6, nor sought for enhancement of sentence of the convicted accused.
3. In the course of trial, the prosecution has examined as many as 38 witnesses, besides exhibiting large number of documents. The statement of accused in terms of section 313 of the Code of Criminal Procedure has been recorded to obtain explanation of accused on incriminating material. At the conclusion of the trial, while accused Nos. 2, 5 and 6 are exonerated of the charges leveled against them, the rest have been convicted as aforesaid and are sentenced to undergo separate punishment for each proved offence.
4. Briefly stated, the case of prosecution is that deceased Pradeep Nalamwar was an Advocate by profession and at the relevant time was living with his wife at Sarkar Nagar area in Chandrapur. Advocate Nalamwar was earlier residing in Swami Compound owned by the accused No. 4 Swami. Though later on Advocate Nalamwar shifted his residence at Sarkar Nagar, however, he continued his office at Swami Compound, and was attending the office daily. On the fateful day i.e. on 5.9.2009, Advocate Nalamwar returned to his house around 5.30 to 6 p.m. and was attending some clients at his residence, where also he asked to attend the clients. Wife of Advocate Nalamwar, P.W. 9 Sadhana Nalamwar, was present at their residence. At that time, Advocate Nalamwar received a phone call from Rajik and talked to him. Within short time, accused No. 1 Rajik arrived at the residence of Advocate Nalamwar. Informant P.W. 9 - Sadhana Nalamwar, while preparing tea, noticed from kitchen that a sumo vehicle had stopped near the house from which accused No. 1 Rajik had alighted, whilst one person was sitting on the driver seat and another was sitting beside the driver's seat. Advocate Nalamwar had a talk with accused No. 1 Rajik for short while and then he informed to his wife P.W. 9 Sadhana Nalamwar, that he was going to Rajura for Rajik's work, and had left the house. While Advocate Nalamwar was leaving the house, P.W. 9 Sadhana Nalamwar and neighbouring lady P.W. 12 Harsha Dharamsare, followed him upto the gate, where Advocate Nalamwar sat in the sumo vehicle and all four went away.
5. Around 1 a.m. in the midnight, P.W. 9 Sadhana Nalamwar received a phone call from P.W. 14 - Sadhana Bisne (wife of deceased Vijay Bisne), informing that her husband Vijay Bisne had gone with Advocate Nalamwar by sumo vehicle towards Rajura, but, had not return. Informant Sadhana Nalamwar tried to telephonically contact her husband as well as Vijay Bisne, but, their phones were not reachable. Therefore, P.W. 9-Sadhana Nalamwar alongwith her brother-in-law Dipak Bhimanwar, and brother Samir, went to the house of Sadhana Bisne at Ballarshah and then all of them had gone towards Rajura to search Advocate Nalamwar and Bisne. They searched for accused No. 1 Rajik, since Advocate Nalamwar and Vijay Bisne had gone with him. When they met accused No. 1 Rajik and made enquiries, the later gave evasive answers, therefore, they took accused No. 1 Rajik to Rajura Police Station, where P.W. 9 - Sadhana Nalamwar lodged a missing report. While the missing report was reduced into writing, at that time, the then PSI Mane, received a telephonic message that two bodies were found in Jogapur Forest within the jurisdiction of Virur Police Station. Thereafter, Santosh Channe brother of Sadhana Bisne, and Samir Bhimanwar brother of informant Sadhana Nalamwar, went to the place and identified the dead bodies as of Advocate Nalamwar and Vijay Bisne. Since the dead bodies were found within the jurisdiction of Virur Police Station, informant P.W. 9 - Sadhana Nalamwar went to Virur Police Station and lodged report.
6. During the course of investigation, the police had recorded statement of several witnesses, and seized various documents. Several articles were seized from the spot. Call details record (CDR) was obtained from the service provider. Postmortem was conducted on the dead bodies. Seized articles, including empty and live cartridges were sent for chemical analysis. During the course of interrogation, several articles including 6.7 mm. Pistol and blood stained clothes were seized at the instance of accused. Specimen signature of accused No. 3 Lalit and accused No. 4 Swami were obtained under panchnama. All the articles were sent for expert analysis and report.
7. The police had seized bank cheques to show that accused No. 4 Swami had paid certain amount to accused No. 3 La-lit to engage contract killer. Moreover, CDRs were collected to demonstrate that accused Nos. 3, 4, 1, 7 and 8 were in constant touch with each other soon before the incident. On the basis of said material, final report was filed alleging that at the behest of accused No. 4 Swami, accused No. 3 Lalit had employed accused Nos. 1, 7 and 8 to commit murder of Advocate Nalamwar, since there was deep rooted enmity in between accused No. 4 Swami and Advocate Nalamwar. Precisely, criminal conspiracy has been hatched to eliminate Advocate Nalamwar, and by chance Vijay Bisne was also killed since he accompanied Advocate Nalamwar.
8. Accused were committed to Sessions Court, where charges were framed against them to which they pleaded not guilty and claimed to be tried. To bring home the guilt of accused, prosecution has examined 38 witnesses and proved several documents. Upon appreciation of the evidence, the learned Sessions Judge, vide the impugned judgment and order has convicted accused Nos. 1, 3, 4, 7 and 8 as stated aforesaid.
9. The prosecution has led evidence to establish the motive behind the commission of crime. It is alleged that Advocate Nalamwar, was tenant of accused No. 4 Swami, who was the king pin of the episode. Advocate Nalamwar was not vacating the tenanted premises because of which accused No. 4 Swami was facing difficulties in disposing the property. Therefore, accused No. 4 Swami had conspired with his man of confidence accused No. 3 - Lalit, to eliminate Advocate Nalamwar and had also paid Rs. 2.10 lakhs to him for the said purpose. It is the case of the prosecution, that in order to execute the plan, accused No. 3 Lalit had engaged services of 10 contract killer accused No. 1 Rajik, along with accused Nos. 7 and 8.
10. The defence of accused is obviously of total denial. Accused No. 4 Swami in his defence stated that he had family relations with accused No. 3 Lalit, and used to ask to do petty work, since he was of old age. As a part of routine work, he had asked accused No. 3 Lalit to withdraw cash amount for himself by giving two self cheques. Accused No. 3 Lalit had only encashed the two cheques from the bank and had handed over the amount to him. He specifically denied that he had conspired to kill Advocate Nalamwar and had paid for that.
11. Similar is the defence of accused No. 3 Lalit, who stated that accused No. 4 Swami was like his uncle, he used to do all miscellaneous work for accused No. 4, and as a part of gratuitous service, he had withdrawn cash from the bank for accused No. 4 Swami. Besides that, the entire episode has been flatly denied by all accused.
12. The prosecution case was solely dependent upon circumstantial evidence. Admittedly there was no eye witness to the incident. The trial Court after considering the oral as well as documentary evidence, held that the prosecution was successful in establishing the following circumstances:-
[1] Both deceased Advocate Nalamwar and Vijay Bisne died of homicidal death.
[2] Bullets were recovered from brain matter of both dead bodies by the Medical Officer;
[3] Post-mortem reports of both deceased showed that the bullets were fired from the point of blank range;
[4] Empty cartridges and two live cartridges were found on the spot of incident;
[5] Country made pistol, which was used in commission of offence, recovered at the instance of accused No. 1;
[6] Ballistic report opined that the bullets found in body of both deceased were fired from same country made pistol which was seized from accused No. 1;
[7] Motive behind the crime that accused No. 4 had animus against deceased Nalamwar for not vacating the premises;
[8] Presence of accused No. 1 Rajik at the house of deceased Nalamwar on 5.9.2009 in evening;
[9] Accused No. 4 Vangipuram Krushnaswami was the landlord of deceased Nalamwar;
[10] There was dispute between deceased Nalamwar and accused No. 4 for vacating the house;
[11] Accused No. 4 sold property to Hasani builders and deceased Nalamwar was the hurdle;
[12] Accused No. 4 had given life threats to deceased Nalamwar that if house was not vacated he would be finished and deceased Nalamwar had lodged the report with Police Station regarding threats given by accused No. 4 and had expressed apprehension that there was danger to his life.
[13] Accused No. 4 and 3 conspired to hire the contract killer accused No. 1 Rajik;
[14] Accused No. 4 had given cheques of Rs. 50,000/- and Rs. 1,60,000/- to accused No. 3;
[15] Accused No. 3 Lalit had withdrawn the amount of Rs. 50,000/- and Rs. 1,60,000/- for payment,
[16] On 5.9.2009, accused No. 1 had made phone call to Adv. Nalamwar at about 8 p.m.
[17] Accused No. 1 along with accused No. 7 and 8 had visited the house of deceased Nalamwar on 5.9.2009;
[18] Deceased Nalamwar had gone along with accused No. 1, 7 and 8 by Tata Sumo vehicle No. MH34/K8723;
[19] Deceased Nalamwar had gone to Ballarsha to the house of deceased Vijay Bisne and he had accompanied them in Tata Sumo vehicle;
[20] Mobile phones of deceased Nalamwar and Vijay Bisne later on were found to be switched off;
[21] Deceased Nalamwar and Vijay Bisne had not returned to their respective home that night;
[22] P.W. 9, 14 alongwith P.W. 6, 10, 3 had gone to search for deceased and accused No. 1 Rajik;
[23] P.W. 9, 14, 3, 6 and 10 had searched for accused No. 1 and had traced him out, but, accused No. 1 was avoiding to till whereabouts of deceased;
[24] P.W. 9 had given missing report of her husband and Vijay Bisne at police station, Rajura by giving details of accused Rajik;
[25] At the time of giving missing report (Ex. 258), informant came to know about the discoveries of dead bodies of Nalamwar and Vijay Bisne in Jogapur forest;
[26] The FIR (Ex. 261) lodged by P.W. 9 at Virur Police Station;
[27] The seized clothes of accused No. 1, 7 and 8 having blood stains;
[28] Mobile phone of both deceased, accused No. 1, 7 and 8, recovered from accused No. 8 Mohan;
[29] Accused No. 7 Sahebrao was driver of Tata Sumo vehicle owned by Dharamsingh Chouhan (P.W. 28) on the day of incident;
[30] Abscondence of accused No. 7 after receiving phone call from Jivti police by the owner of Tata Sumo, and his conduct of absconding leaving the owner midway;
[31] Accused No. 7 made entry in register maintained by Dharamsingh Chouhan (P.W. 28) regarding booking of his vehicle in which name of accused No. 1 was written and later on it was scored off;
[32] Accused No. 7 Sahebrao was driver when accused No. 1 Rajik took deceased Nalamwar and Bisne from their houses and accused No. 8 Mohan also accompanied them;
[33] Accused No. 1, 3, 4, 7 and 8 having conversation amongst themselves and connectivity through mobile phones before and after the date of incident;
[34] Scene of spot of incident and both dead bodies lying having head injuries shown in photographs, proved by. photographer (P.W. 15);
[35] Recovery of weapon, clothes, SIM card pieces, mobiles and identification of the same by witnesses;
[36] Medical Officer and ballistic expert found that the bullets recovered from the brain matter were fired from the same firearm country made pistol and the same is recovered and identified.
13. On that basis, the trial Court held that the prosecution has successfully proved all the circumstances which are consistent with the hypothesis of guilt of the accused. It is held that the chain of circumstances is complete, and is of a conclusive nature which excludes the possibility of innocence of accused and ultimately passed the order of conviction.
14. Heard the learned Advocates for the parties, exhaustively. With the assistance of learned Advocates appearing for the parties, we have scrutinized the entire material on record. Several citations have been referred by the learned Advocates. However, we do not wish to reproduce or refer to all of them, which would unnecessarily flex the size of the judgment. Needless to mention that we will be referring the judgments, which we consider to be relevant.
15. The present case is based on circumstantial evidence. The law on the cases based on circumstantial evidence is well crystallized by Their Lordships of the Supreme Court in the case of (Sharad Birdhichand Sarda Vs. State of Maharashtra), MANU/SC/0111/1984 : 1985 (1) Bom. C.R. 208 (S.C.) : A.I.R. 1984 S.C. 1622. At the inception, it will be appropriate to refer to the observations of Their Lordships in paragraph Nos. 152 and 153 of the judgment, which read as under:
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in (Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra), MANU/SC/0167/1973 : (1973) 2 S.C.C. 793 : A.I.R. 1973 S.C. 2622 where the following observations were made:
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the judgment innocence of the accused and must show that in all human probability the act must have been done by the accused.
"153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." It could thus be seen that Their Lordships have held that before convicting an accused in a case based on circumstantial evidence, it will have to be established that the circumstances from which the conclusion of guilt is to be drawn are fully established. It is further necessary that the facts so established should be consistent, only with the hypothesis of the guilt of the accused. It should be established that the facts established should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of conclusive nature and tendency. It is necessary that the facts established should exclude every possible hypothesis, except the one to be proved, i.e. the guilt of the accused. It has further been held that there must be a chain of evidence so complete as not to leave any reasonable doubt for the conclusion consistent with the innocence of the accused and must show that in all human probability the acts must have been done by the accused.
16. The principle for basing conviction on circumstantial evidence has been discussed in number of decisions. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence, and the circumstances so proved must form a chain of events from which only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Various judgments have clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.
17. At the inception, the learned Advocate for accused has submitted that mere suspicion cannot take the shape of proof, but, to establish the offence, the prosecution has to prove the case beyond reasonable doubt. In this regard, he relied on the reported judgment in case of (Sujit Biswas Vs. State of Assam), MANU/SC/0564/2013 : 2013 (3) Bom. C.R. (Cri.) 352 (S.C.) : (2013) 12 S.C.C. 406. In the said case, the Hon'ble Supreme Court held that it is the duty of the Court to ensure that mere conjectures or suspicion do not take place of legal proof. Clear, cogent and unimpeachable evidence is must before the accused is condemned as convict.
18. Contextually, we wish to state that while appreciating the oral testimony of witnesses and the circumstantial evidence in a criminal case, the Courts should advert to the observations laid down in case of (State of Punjab Vs. Jagbir Singh, Baljit Singh & Karam Singh), MANU/SC/0193/1973 : 1974 (3) S.C.C. 277, wherein it is observed as under:
"A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and fantasy. It concerns itself with the question whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused the courts should not at the same time reject evidence which is ex facie trusts worthy on grounds which are fanciful or in the nature of conjectures."
19. It is settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the case of (G. Parashwanath Vs. State of Karnataka), MANU/SC/0614/2010 : (2010) 8 S.C.C. 593, it has been observed by the Hon'ble Supreme Court in paragraph No. 24 as under:
"In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to he proved. But, this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the Court".
20. Bearing in mind these settled principles of law, the evidence needs to be scrutinized. However, before adverting to the evidence, we find it appropriate to make brief reference to some undisputed facts, to ease the discussion. Accused No. 4 Swami, was owner of the premises namely Swami Compound. Advocate Nalamwar (deceased) was his tenant since the year 1989, and till the date of incident, his office was in the said tenanted premises, though he had shifted residence elsewhere. There is no dispute that there were exchange of notices in between accused No. 4 Swami and Advocate Nalamwar i.e. in between the landlord and the tenant. A Civil Suit was also pending in between them. Moreover, it is not disputed that accused No. 4 Swami was having intimacy with accused No. 3 Lalit, and the later had withdrawn cash amount of Rs. 2.10 lakhs by self cheques issued by accused No. 4 Swami. Besides that, everything is in dispute.
21. Indeed the prosecution is shouldering dual responsibility, firstly to prove homicidal death caused by accused Nos. 1, 7 and 8, and secondly the role of conspirator who were behind the curtain i.e. accused No. 4 Swami and accused No. 3 Lalit. In order to discharge the burden, the prosecution has relied on various circumstances, however, we have culled out some major circumstances on which the prosecution case rests to prove the offence of murder and the criminal conspiracy. These circumstances are precisely as below:-
(1) Homicidal death of Advocate Nalamwar and Vijay Bisne.
(2) Motive for commission of Crime.
(3) Last seen theory.
(4) Recovery of various articles at the instance of the accused.
(5) Ballistic experts report.
(6) Serological experts report.
(7) Handwriting experts report.
(8) Frequent connectivity by phone between accused, during the relevant period.
(9) Conspiracy.
(10) Abscondence of accused No. 7.
22. In order to establish the aforesaid circumstances, the prosecution has examined in all 38 witnesses. The prosecution evidence consists of several witnesses who are on different circumstances. Each one has to say little bit relating to one of the circumstance independently. The trial Court has analyzed in detail the oral as well as documentary evidence. We have gone through the entire evidence and all the documents, which are held to be proved in the case. We prefer to deal with each of the circumstance separately.
23. In case of offence punishable under section 302 of the Indian Penal Code, the very foundation of the prosecution case is obviously to establish the homicidal death. Herein, it is the case of the prosecution that Advocate Nalamwar and Vijay Bisne met with homicidal death i.e. death by firearm injury on head. In true sense, the defence has not challenged the homicidal death, rather there was no escape since both died due to fire of bullets on their head in close range. However, to establish the factum of homicidal death, the prosecution relied on the evidence of P.W. 13 - Dr. Ashok Jadhav, who has conducted autopsy and the evidence of Ballistic expert P.W. 32 Pramod Misal. The prosecution has also relied on the post-mortem notes and inquest panchnama.
24. Coming to the evidence of Dr. Ashok Jadhav (P.W. 13), it can be seen that he was the Medical Officer attached to Rural Hospital, Rajura and possessed qualifications of M.B.B.S. and had performed postmortem in around 120 cases. On 6.9.2009, he had conducted postmortem examination of both dead bodies of Advocate Nalamwar and Vijay Bisne vide requisition letters Ex. 284 and 285. Along with requisition letters, he had received a letter from police station Virur making queries, and had also received inquest panchnamas (Ex. 166 and 167) of both dead bodies. According to the Medical Officer, he had initially performed the autopsy on the dead body of Vijay Bisne and then on the dead body of Advocate Nalamwar.
25. On external examination of the dead body of deceased Vijay Bisne, the Medical Officer had found cut lacerated wound on left side of occipital region 3 x 2 x 1 inch deep and circular wound. He had also found fracture on left occipital region and on right temporal region. On internal examination he had found following injuries:-
26. Whereas, on external examination of the dead body of Advocate Nalamwar he had found cut lacerated wound on left side of occipital region 3" x 2" x 1" inch deep and circular irregular wound. On dead body, he had found fracture on left occipital region.
27. On internal examination he had found following injuries:
28. Medical Officer Dr. Jadhav (P.W. 13) had specifically opined that death of Vijay Bisne was caused due to hypovolemic shock with neurogenic shock precipitated by vital organ, injury to the brain was caused by bullet. He opined that death of Advocate Nalamwar, was caused due to hypovolemic shock with neurogenic shock precipitated by vital organ and injury to the brain was caused by bullet. The Medical Officer had prepared notes of post-mortem examination of both dead bodies which were filed on record at Ex. 288 of Vijay Bisne and Ex. 289 of Advocate Nalamwar.
29. In short, it was death by gunshot injury on head. The nature of injury itself shows that death was homicidal. As there is no other possibility, we hold that the prosecution has established that Advocate Nalamwar and Vijay Bisne met with homicidal death.
30. Once the homicidal death is established, naturally the next step is to establish as to who is the author of the crime. In this regard, the prosecution case is based on circumstantial evidence. Rather, the job of the prosecution is tough in view of the settled position of law in the field. No doubt, the ocular evidence is not a prerequisite to establish the crime, since it can be established by bringing various circumstances from which inference of guilt can be certainly and definitely drawn.
31. The first circumstance on which the prosecution is relying, is about a strong motive for commission of crime. The presence of motive for crime helps the prosecution to establish the case as a matter of circumstance and it strengthens the conclusion against the accused. When the case is based on circumstantial evidence, it provides an important link to satisfy the judicial mind about culpability of the accused.
32. Normally, there can be a proposition that every criminal act is done with a motive. In other words, motive is something which permits a man to form an intention to commit an act, meaning thereby, the motive is a desire and crime is a desired accomplishment. In true sense, motive is a hard nut to crack, since motive is always hidden in the mind of the culprit which is a psychological phenomena. Keeping in mind the psychological aspect, the evidence on motive is to be understood and appreciated. Obviously, motive is to be gathered from variety of circumstances.
33. Though it is a difficult area for the prosecution, in case at hand, the prosecution has brought overwhelming evidence to establish the motive, which seldom happens. It is the case of the prosecution that Advocate Nalamwar, was the tenant of accused No. 4 Swami for considerable period. There was usual landlord-tenant hustle in between them, which is a ubiquitous phenomena. The landlord like others, was keen in getting possession of the tenanted premises from Advocate Nalamwar. It has come on record that the landlord accused No. 4 Swami, had intended to sale the entire premises and obviously he desired to have premises vacant for smooth transaction.
34. It is the case of the prosecution that accused No. 4 Swami, had left no stone unturned to bother his tenant Advocate Nalamwar, with the hope that one day or other he would vacate the premises, but, the later did not. Advocate Nalamwar had filed several complaints against accused No. 4 Swami to various authorities, including Police. The prosecution has projected this reason or motive for landlord accused No. 4 Swami, to eliminate Advocate Nalamwar. True, neither accused No. 4 Swami intended, nor desired to eliminate Vijay Bisne, however, in the chain of events, Vijay Bisne was also killed since his destiny demanded so.
35. In order to establish motive, the prosecution has relied on the evidence of P.W. 9 Sadhana Nalamwar (informant and wife of Advocate Nalamwar); P.W. 6 Samir Birewar [brother of informant] and P.W. 10-Deepak Bhimanwar [brother-in-law of informant]. Undisputedly, accused No. 4 Swami was the landlord, whilst deceased Nalamwar was his tenant since the year 1989. It has come in the evidence of P.W. 6 Samir Birewar, that he was erstwhile tenant of accused No. 4 Swami. His sister Sadhana Nalamwar and her husband Advocate Nalamwar also started to reside in the tenanted premises owned by accused No. 4 Swami, since the year 1989. For initial one year, the relations were smooth, however, thereafter, their relations got sour for multiple reasons. There used to be frequent quarrels in between Advocate Nalamwar and Swami. The reasons for quarrel were very mini scale, like clients of Advocate Nalamwar were looking towards house of Swami, main gate was left open etc. Moreover, Advocate Nalamwar had disclosed co-ownership rights on Swami Compound of Swami's sister, which was disliked by accused No. 4 Swami. He had testified that accused No. 4 Swami, was trying to harass Advocate Nalamwar by every possible mode. In the process of bothering the tenant - Advocate Nalamwar, accused No. 4 Swami had dug a small drain in front of his house, had discontinued electric and water supply, as well had given life threat. He had also stated about the complaints filed by Advocate Nalamwar to the authorities about the misdeeds of his landlord i.e. accused No. 4 Swami.
36. Contextually, we have gone through the evidence of P.W. 9 Sadhana Nalamwar. Of course she being the wife of the tenant - Advocate Nalamwar, was in better position to unfold the mystery. She stated that, in the year 1989 they started to reside in the tenanted premises owned by accused No. 4 Swami. Though over the period time, they shifted residence to Sarkar Nagar area, still office of Advocate Nalamwar was very much in the tenanted premises of Swami Compound. She deposed about the frequent quarrels in between her husband and accused No. 4 Swami for petty reasons. It is her specific evidence that accused No. 4 Swami was troubling her husband to vacate the premises and for that accused No. 4 Swami gave threats, disconnected electricity, water, had put lock on the main entrance etc. Particularly, she stated that accused No. 4 Swami abused her husband in filthy language, and gave life threats.
37. P.W. 10 - Deepak Bhimanwar is the husband of elder sister of Sadhana Nalamwar. Obviously, he was on visiting terms at the house of Advocate Nalamwar. His evidence is on the same lines about the landlord-tenant relationship, harassment by accused No. 4 to Advocate Nalamwar and life threats. Precisely, these three witnesses have stated in one voice about the strained relations of accused No. 4 Swami with Advocate Nalamwar. So far as the relationship of P.W. 6 Birewar and P.W. 10 Bhimanwar with the informant Sadhana Nalamwar is concerned, it is not in dispute. Therefore, they can be termed as natural witnesses since they had occasion to know the things, being frequent visitors at the place of Advocate Nalamwar. The evidence of these witnesses is to be appreciated on the compass of undisputed fact that since the year 1989, Advocate Nalamwar was the tenant of accused No. 4 Swami and usual landlord-tenant dispute was going on in the Civil Court.
38. We may state that it is hard to get credible evidence on the point of motive. However, besides the oral testimony of these witnesses, the prosecution has proved several documents, which strongly corroborate the evidence adduced by these witnesses. It has come in the evidence of P.W. 9 Sadhana Nalamwar, that her husband had lodged reports against accused No. 4 with the police, municipal corporation, Advocates Bar Association and M.S.E.B. There were exchange of notices in between them as well as civil litigation was pending. The prosecution has proved several documents of which we prefer to refer few, as trial Court has exhaustively dealt with all the documents.
39. Communication/letter (Exh. 210) dated 28.2.1992, is a complaint made by Advocate Nalamwar to the police, alleging that accused No. 4 Swami had physically assaulted him as well as his wife. Likewise there is another police report dated 12.10.1992 (Exh. 211), by which Advocate Nalamwar reported to the police about assault. Letter Exh. 213, dated 12.10.1992 is an information to police that accused No. 4 Swami had disconnected electric supply. Advocate Nalamwar had sent notice [Exh. 214] dated 25.1.1994 to accused No. 4 Swami for disconnection of electricity. Pertinent to note that Advocate Nalamwar vide letter [Exh. 217] dated 12.10.1996 had specifically put the grievance against accused No. 4 Swami to Advocates Bar Association, which bears a specific reference that accused No. 4 Swami had threatened to kill him. Likewise, there are some other letters sent by Advocate Nalamwar to police, which are at Exh. 218 dated 10.12.1996 and Exh. 221 dated 17.2.2004.
40. There were some exchange of notices in between Advocate Nalamwar and Advocate Khajanchi for accused No. 4 Swami, which are of August, 2009. Moreover, copy of M.A. No. 248/2004 in between the landlord and tenant i.e. accused No. 4 Swami and Advocate Nalamwar has been produced. Moreso, a copy of Regular Civil Suit No. 6/2007 (Exh. 257), is produced to show that Advocate Nalamwar had filed a suit against accused No. 4 Swami for perpetual injunction to restrain him from disturbing peaceful possession over the tenanted premises.
41. The long line of communication running from the year 1992 to 2009 conveys that, for long period of 16-17 years, the relationship between accused No. 4 Swami and Advocate Nalamwar was quite strained. Of course, we are not required to see as to who was at fault, but, fact remains that several complains were made by Advocate Nalamwar against accused No. 4 Swami to police and different authorities, as well as suit for injunction was filed.
42. It assumes significance because there was no stray incident of quarrel, but, the various documents convey that, till the year 2009 when the incident occurred, the dispute was going on. Particularly, in some communications Advocate Nalamwar specifically complained about life threats given by accused No. 4 Swami, which assumes significance from our point of view.
43. Though it is argued that accused No. 4 Swami had already sold the premises and P.W. 9 Sadhana Nalamwar has vacated the tenanted premises, however, the incidence of vacating the premises is post incident. Therefore, there were overwhelming reasons for accused No. 4 Swami to grind the axe against Advocate Nalamwar. Perhaps Advocate Nalamwar being an Advocate by profession had ventilated the grievance against accused No. 4 Swami to several authorities, as well as had instituted civil suit which had enraged accused No. 4 Swami. In short the oral evidence is well supported by voluminous documents which show that there was deep rooted enmity between accused No. 4 Swami and Advocate Nalamwar. Thus, the bitter enmity running for two decades is the motive for accused No. 4 Swami to eliminate Advocate Nalamwar, so as to get rid from a chronic tenant. Of course, motive is one of the link in the chain of circumstances, which will assist the Court to arrive at a conclusion, if the other links are established.
44. Then as an important link, the prosecution heavily relied on the well known last seen theory. The principle of last seen theory is explained by the Supreme Court in the decision in the case of (State of Uttar Pradesh Vs. Satish), (MANU/SC/0090/2005 : 2005 (3) S.C.C. 114. It is observed that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small, that the possibility of any person other than the accused being the author of the crime becomes impossible. Obviously, it is an inferential circumstance to rule out intervention of third party when there is proximity of time in between last seen and death of the victim.
45. Where the prosecution is relying upon the last seen theory, it must essentially establish the time when the accused and deceased were last seen together as well as the time of death of the deceased. If these two aspects are not established then it would create a major dent in the case of the prosecution. To establish last seen theory, possible link with the proximity of time is required to be established. This proportionately is to be applied depending upon the facts and circumstances of the given case. The reasonableness of the time gap, is, therefore, of great significance. If the time gap is very large, then it is not only difficult, but, may not be proper to infer that the deceased was last seen alive with the accused. If the proximity in between two things is established then inevitably it leads to the inference that the accused person was responsible for commission of the crime.
46. According to the prosecution, on 5.9.2009 in the evening around 8.30 p.m., accused No. 1 Rajik had gone to the house of Advocate Nalamwar in Sumo vehicle along with accused Nos. 7 and 8. Thereafter deceased Advocate Nalamwar in their company left his house in presence of his wife P.W. 9 - Sadhana Nalamwar and neighbouring lady P.W. 12 - Harsha Bhimanwar by saying that they are going to meet Patwari for the work of accused No, 1 Rajik. On their way, they took Vijay Bisne [second deceased], and it was seen by wife of Vijay Bisne namely P.W. 14 - Sadhana Bisne. Later on dead bodies of Advocate Nalamwar and Vijay Bisne were found by the police at Jogapur Forest on the following day around 12 noon. Thus, it is prosecution's case that there was live link in between last seen of deceased in the company of the accused and finding of dead bodies on the very next day morning and according to the prosecution, this is a vital link to establish nexus of accused Nos. 1, 7 and 8 with the death since time gap was so small.
47. In order to establish the theory of last seen together, the prosecution relied on the evidence of P.W. 9 Sadhana Nalamwar. It is her evidence that on 5.9.2009, she was at her residence at Sarkar Nagar, Chandrapur along with her husband Advocate Nalamwar. In the evening, she served dinner to her husband and then her husband received a phone call on which her husband said that "are Rajik turn aye kya? Kaise aye? Bus se aye kya? Acha Sumo laye. Theek hai aajao." P.W. 9 Sadhana Nalamwar, within short time, while in kitchen, noticed that one Silver Colour Sumo vehicle stopped besides her house, accused No.. 1 Rajik had alighted from the vehicle, whilst one person was sitting on the driver's seat and another was sitting besides the driver. Accused No. 1 Rajik, who was her husband's client, had come to her husbands' office, which was in their residence, she had served tea to her husband, there was a talk between Advocate Nalamwar and accused No. 1 Rajik for 5 to 10 minutes and then Advocate Nalamwar, had told her that he was going for Rajik's work at Rajura.
48. It is her specific evidence that she was knowing accused No. 1 Rajik, as he was her husband's client, and was on visiting terms from 2/3 months. P.W. 9 Sadhana Nalamwar, further testified that while her husband was leaving with accused No. 1 Rajik, she along with neighbouring lady P.W. 12 Harsha, followed them upto the main gate. When they went near the vehicle, she had noticed that a person who was sitting besides the driver seat, had alighted from the vehicle. Then her husband and accused No. 1 Rajik occupied rear seat. The person who had alighted from the vehicle sat besides the driver and all of them went away. This is precisely the evidence of P.W. 9 Sadhana Nalamwar regarding the last occasion she had seen her husband.
49. On the point of identification, her evidence is material. She has specifically stated that she was knowing accused No. 1 Rajik, who was on visiting terms, being her husband's client. She has also stated about the exact telephonic conversation which took place between her husband and accused No. 1 Rajik. Pertinent to note that the conversation bears reference of accused No. 1 Rajik, which is confirmed by the later event of arrival of accused No. 1 Rajik. It emerges from her evidence that accused No. 1 Rajik was at her residence for 5 to 10 minutes and during that time, she served tea to heir husband, which reasonably conveys that she had ample opportunity to see accused No. 1 Rajik. Rather, her identification of accused No. 1 Rajik is natural, since Rajik was client of her husband. Moreover, P.W. 9 Sadhana Nalamwar, had accompanied them upto the main gate and had occasion to see the sitting position of all the occupants of the sumo vehicle. Therefore, the minute details given by the witness, lends assurance to identification of rest of the two culprits by her.
50. P.W. 9 Sadhana Nalamwar has identified accused Nos. 1, 7 and 8 in Court. It is her evidence that she had identified them during pre-T.I. parade. In true sense, prior test identification parade as regards accused No. 1 is concerned, was futile exercise, since she was knowing accused No. 1 since prior to the incident. The fact remained that she had identified accused Nos. 7 and 8 during the test identification parade. Of course, the evidence on test identification parade is criticized by the defence from various angles, which we will be dealing after a short while. The statement of P.W. 9 Sadhana Nalamwar despite undergoing searching cross examination, remained un-impeached. Though there are some minor inconsistencies in her statement, they are not material. In this regard, reference can be made to the judgment of Hon'ble Supreme Court in case of (Shymal Ghosh Vs. State of West Bengal), (2012) 7 S.C.C. 643, wherein it is observed that, minor contradictions, inconsistencies or embellishment of trivial nature which do not affect core of prosecution case should not be taken to be a ground to reject prosecution evidence in its entirety.
51. It is settled scale of appreciation of evidence that the Court should not draw any conclusions by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Omission or discrepancy that may amount to material contradiction would only give advantage to defence. The statement of P.W. 9 Sadhana Nalamwar about the core issue is unshattered. Moreover presence of P.W. 9 Sadhana at relevant time at her residence is quite natural.
52. On the same line, the prosecution has adduced evidence of neighboring lady namely P.W. 12 Harsha, who had occasion to see the persons in whose company Advocate Nalamwar departed at the crucial moment. It is not in dispute that P.W. 12 Harsha was a neighbouring lady. It is her evidence that on 5.9.2009, around 8 to 8.30 p.m., she visited house of Advocate Nalamwar to remind for giving call to one Mr. Gour, with whom she had work. She stated that at relevant time, 3 to 4 clients were sitting in the office of Advocate Nalamwar. Particularly she deposed that P.W. 9 Sadhana Nalamwar was also present at her husband's office. She deposed that thereafter Advocate Nalamwar proceeded to go out with his client on which she along-with P.W. 9 Sadhana Nalamwar, accompanied them up to the main gate. In her presence P.W. 9 Sadhana Nalamwar had asked her husband whether he had taken his mobile. Advocate Nalamwar had replied in the affirmative and had said that he was going for the work of accused No. 1 Rajik to Rajura and would/return within 1 and 1% hours. Thereafter, Advocate Nalamwar sat in Sumo and went away with his clients.
53. P.W. 12 Harsha, being neighbouring lady, it was natural for her to visit the house of Advocate Nalamwar, for some work. Evidence of P.W. 12 Harsha is consistent with the evidence of P.W. 9 Sadhana Nalamwar about the visit of client at the relevant time and departure of Advocate Nalamwar by sumo vehicle with his clients. Moreover their testimony is consistent on the point that both of them went with Advocate Nalamwar upto the gate, meaning thereby they had sufficient opportunity to see the persons in whose company.
54. Pertinent to note that P.W. 12 Harsha gave description of clothes which were worn by the person with whom Advocate Nalamwar had gone by sumo vehicle. She stated that one person was wearing T-shirt having cream and brown strips on which word "Bad Boys" was embossed, as well she had identified the said T-shirt in the Court. She has also identified accused No. 1 Rajik in the Court. Though she was cross examined from various angle, however, she withstood to the core issue about seeing deceased Nalamwar leaving the house in the company of accused No. 1 - Rajik. We do not find any reason to discard her natural version which provides corroboration to the evidence of P.W. 9 Sadhana Nalamwar.
55. Further on the same line, the prosecution sought to rely on the evidence of P.W. 14 Sadhana Bisne, who is wife of the second deceased, Vijay Bisne. It is her evidence that deceased Nalamwar was a good friend of her husband. On 5.9.2009, around 7.30 p.m. her husband Vijay Bisne had received a phone call from Advocate Nalamwar, expressing that he intended to visit Patwari at Rajura. Then Vijay Bisne told her that he was accompanying Advocate Nalamwar to Rajura and would return shortly. Thereafter, Advocate Nalamwar had come to their house, and then her husband Vijay Bisne had left with him. She testified that while her husband was leaving, she went with him upto the gate and saw one silver colour Tata Sumo vehicle waiting on the junction of the subway. She had seen that her husband and Advocate Nalamwar sat in the sumo and one person was standing near the vehicle. This is precisely her evidence on the point of last seeing her deceased husband with the accused.
56. It is argued that the evidence of P.W. 14 - Sadhana Bisne, was totally silent about presence of three persons when her husband left the house. True, she has stated that when she went upto the gate to leave her husband and Advocate Nalamwar, both sat in the silver colour tata sumo and at that time one person was standing near the said vehicle. However, it does not mean that the said person was not accompanied by anybody else. It is to be borne in mind that the said incident took place within short while. In the circumstances, it is not expected from the witness to observe as to whether anybody was sitting in the vehicle or it was empty. Inasmuch as, there was no reason for her to suspect or inspect the vehicle since it was an usual affair. Moreover, there was no special reason for P.W. 14 Sadhana Bisne, to remain attentive to this circumstance. One can understand that temperament, awareness, attentiveness are inherent human qualities which differ from person to person. Therefore, merely because this witness has not stated, it would not exclude the presence of other two persons at relevant time.
57. On the background of the evidence of P.W. 14 Sadhana Bisne, it is argued that the evidence of earlier two witnesses i.e. P.W. 9 Sadhana Nalamwar and P.W. 12 Harsha, cannot be termed as evidence on the point of last seen together. The said submission cannot be accepted because P.W. 9 Sadhana Nalamwar and P.W. 12 Harsha, had last seen Advocate Nalamwar in the company of the accused, and particularly, the entire episode was in quick succession. No sooner Advocate Nalamwar left his house along with the accused, within short time he reached the house of Vijay Bisne and thus, the incident being in same chain, the evidence of P.W. 9 Sadhana and P.W. 12 Harsha cannot be detached and discarded. The evidence is to be assessed on the factual background and not on technicalities. It is not the case that there was quite long time gap in between the story narrated by P.W. 9 Sadhana and P.W. 12 Harsha at one hand and P.W. 14 Sadhana Bisne on the other hand. The sequence is so closely connected with each other, that it cannot be separated or delinked. True, P.W. 14 Sadhana Bisne, spoke only about one assailant, as well as P.W. 12 Harsha stated about accused No. 1 Rajik only, however, P.W. 9 Sadhana Nalamwar, gave detail account of happenings with minute specifications, which lends assurance that she had seen all the three accused leaving with Advocate Nalamwar.
58. It emerges from the evidence of P.W. 9 Sadhana Nalamwar, P.W. 3 - Vijay Channe and P.W. 10 Dipak Bhimanwar, that after short while from the departure of Advocate Nalamwar, there was extensive search by his family members. It has come in the evidence of P.W. 9 Sadhana Nalamwar that, since her husband did not return, around 11.30 p.m., she gave a call to her husband, but, was unable to connect. Then around 1 o'clock midnight, she received a phone call from Smt. Bisne asking whereabouts of her husband deceased Vijay Bisne, and Advocate Nalamwar. She again tried to contact both the deceased, but, in vain. It is her specific evidence that since Advocate Nalamwar had left alongwith accused No. 1 Rajik, she searched the mobile number of Rajik from the office diary and gave call to him, but, he was also out of coverage area. The said aspect assumes significance, rather it provides corroboration to the prosecution case, that he was either in secluded area i.e. out of mobile coverage or had switched off the mobile obviously for some oblique motive. It is to be remembered that as per prosecution's case, at that time he was at Jogapur forest, which assumes significance.
59. It is the evidence of P.W. 9 Sadhana Nalamwar that, as her husband was not reachable through phone, hence, she called her brother-in-law P.W. 10 Dipak Bhimanwar, and both of them along with her brother Samir, went to the house of Smt. Bisne around 3 a.m. At Ballarshah. The search mission continued and they went to Rajura Police Station to enquire about information if any, about untoward incident. All of them had gone to the house Santosh Channe at Rajura who was influential fellow in the locality. P.W. 3 Santosh Channe used his resources and ultimately learnt that accused No. 1 Rajik was at Gadchandur. Then Samir Channe and Dipak Bhimanwar had gone to Gadchandur and had brought Rajik at the house of Santosh Channe at Rajura. On inquiry, they received no information except some evasive and perfunctory answers from Rajik, which created suspicion, therefore, all of them had taken accused No. 1 Rajik to Rajura Police Station.
60. At this stage, it would be apposite to consider the evidence of prior T.I. parade. Prior Test Identification parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on one hand and to make sure that persons named as accused in the case are actually the culprits. Essentially it is a stage of investigation by the police. In other words, identification parades are not meant for the Court, but, meant for investigation purpose. The object is two fold; first is to enable the witness to satisfy himself/herself that the accused whom they suspect is the one who was seen by him/her in connection with the commission of crime and, secondly, to satisfy the investigating authority that the suspect is the person who is connected with the crime. The law in this regard is well settled by the Hon'ble Supreme Court in case of Shymal Ghosh Vs. State of West Bengal, MANU/SC/0544/2012 : (2012) 7 S.C.C. 646, wherein paragraph Nos. 80 and 81, the Hon'ble Supreme Court has observed as under:
"80. It is equally correct that the Cr.P.C. does not oblige the investigating agency to necessarily hold the Test Identification Parade. Failure to hold the test identification parade while in police custody does not by itself render the evidence of identification in Court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the witnesses in the Court for the first time. One of the views taken is that identification in Court for the first time alone may not form the basis of conviction, but this is not an absolute rule. The purpose of the Test Identification Parade is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is, however subjected to exceptions. Reference can be made to (Munshi Singh Gautam Vs. State of M.P.), MANU/SC/0964/2004 : (2005) 9 S.C.C. 631, (Sheo Shankar Singh Vs. State of Jharkhand and Anr.), MANU/SC/0116/2011 : 2011 (3) Bom. C.R. (Cri.) 381 (S.C.) : (2011) 3 S.C.C. 654.
81. Identification Parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named accused in the case are actually the culprits. The Identification Parade primarily belongs to the stage of investigation by the police. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court. Thus, it is only a relevant consideration which may be examined by the Court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case.
61. So far as accused No. 1 Rajik is concerned, in true sense his identification by P.W. 9 Sadhana Nalamwar in prior T.I. Parade is meaningless, as she was knowing Rajik by name since prior to the incident. The prior T.I. parade assumes significance only when the accused are unknown to the witnesses. However, evidence of P.W. 9 Sadhana is relevant from the view point of her identification of the associates of accused No. 1 Rajik, i.e. accused Nos. 7 and 8, who were unknown to her.
62. On this point, the prosecution has examined P.W. 19 Shri Pandurang Dhapkas (Executive Magistrate), who had conducted T.I. Parade. It has come in his evidence that on 7.10.2009, he had received requisition from concerned police to hold prior T.I. parade. Since he had some urgent work, he had conducted T.I. parade on 23.10.2009 at District Prison, Chandrapur and had drawn panchnama [Exh. 326] of entire process.
63. It has come in the evidence of P.W. 19 Executive Magistrate, that on 23.10.2009, at about 11.35 a.m. He went to District prison, Chandrapur and at his requisition, jail superintendent had arranged for dummies having similar complexion. Thereafter, assistant superintendent Shri Kadam, had brought 3 accused and 8 dummy persons having similar complexion. He had asked the accused and dummies to stand in one row, they were informed that if they desired, they were free to change their clothes, on which some of them had exchanged their shirts. Then two Panch witnesses i.e. P.W. 8 - Bhaskar Sahare and Trilok Shende were called. After necessary inquiry, he had summoned witnesses for actual identification. P.W. 9 Sadhana Nalamwar, was called first, who had identified accused No. 1 Abdul Rajik by touching his body, standing at Sr. No. 9 in the row. Then she had identified another person standing in the row at Sr. No. 6, who disclosed his name as Mohan i.e. accused No. 8; lastly, she had identified third suspect, standing at Sr. No. 3 namely Sahebrao Tonge i.e. accused No. 7.
64. It is his evidence that after identification of culprits by P.W. 9 Sadhana, he had asked all the suspects and dummies to change their clothes and position. Accordingly the suspects had changed their clothes and then another witness Vandana Bhimanwar (not examined) was called, who had identified the assailants. The Executive Magistrate had identified accused No. 1 Abdul Rajik, accused No. 7 Sahebrao and accused No. 8 Mohan in Court to whom witnesses have identified during T.I. parade. Accordingly he had drawn detailed panchnama Exh. 349 of the entire process.
65. The prosecution has examined P.W. 8 Sahare, who acted as a panch to the prior T.I. parade. He has corroborated the evidence of Executive Magistrate, as well as identification of suspects by P.W. 9 Sadhana Nalamwar, during T.I. parade.
66. The defence has criticized the evidence on T.I. parade from every possible angle. It is assailed on technical as well as factual front. It is argued that the whole process of T.I. parade was flagrantly in contravention of the guidelines and procedure laid down in paragraph No. 16 of the Criminal Manual. It is argued that T.I. parade was a farce manipulated by the investigating agency to strengthen the prosecution case. It emerges from the evidence of P.W. 19 Dhapkas and T.I. parade panchnama Part-I (Exh. 249) and Part-II (Exh. 326), that the T.I. parade of 3 suspects was simultaneously held in one process by using 8 dummies.
67. Paragraph No. 16 of the Criminal Manual lays down the procedure and the practice to be adopted while holding T.I. parade. We reproduce sub-clause [h] and [i] to paragraph No. 16[2] of the Criminal Manual, which we consider to be relevant:
"(h) The suspect should be placed among persons [if practicable eight or more] who are as far as possible of the same age, height, general appearance [including standard of dress and grooming] and position in life. Two suspects of roughly of similar appearance should be paraded with atleast twelve other persons. Where, however, the two suspects are not similar in appearance or where there are more than two suspects, separate parades should be held using different persons on each parade.
(i) All members of a group of suspects more than two should not be paraded together. There should be more parades than one, each including not more than two. Two suspects of obviously dissimilar appearance should not be included in the same parade. Identification numbers should be concealed."
68. Having regard to the said position, it is apparent that the Executive Magistrate had given complete go-bye to these guidelines, while holding the questioned T.I. parade. Though sub-clause [h] provides that for holding T.I. parade of 2 suspects, at least there shall be 12 dummies, and clause [i] provides that there shall not be more than 2 suspects in one T.I. parade, still T.I. parade was conducted by contravening these guidelines. As noted above, only one T.I. parade for three suspects that too with only 8 dummies was conducted, which is against the procedure laid down in the criminal manual.
69. Apart from the above, we have gone through the T.I. parade panchnamas, which nowhere speaks that necessary instructions were given to the suspects and dummies to change their position, or clothes before actual identification. There is no reference that the suspects had changed the clothes before actual parade. In fact the T.I. parade should be fair, and precaution must be taken as well as shall be demonstrably proved to be followed. Apparently, the T.I. parade panchnama was carried in casual manner with no specifications. Therefore, it is difficult to vouch such panchnama, which is against the guidelines.
70. In order to impeach the foundation of T.I. parade, it is argued that as per jail register, P.W. 9 - Sadharia Nalamwar, barely remained in jail for 7 minutes, therefore, it is difficult to comprehend that within such short span, the entire process of introduction, instructions, identification and drawing of panchnama was carried out. The defence has invited our attention to the relevant extract of jail register (Exh. 276), wherein entry No. 61, shows that P.W. 9 Sadhana Nalamwar had entered the jail at 12.20 p.m. and had left the jail at 12.27 p.m. Therefore, it is difficult to accept that entire exercise was conducted within 7 minutes and thus, we find considerable force in the argument advanced by the defence in this regard. Moreover, it is to be noted that T.I. parade panchnama, Exh. 326, does not bear signature of panch witnesses which adds to suspicion.
71. The next limb of attack is about delayed T.I. parade. It is argued that unexplained delay in holding T.I. parade has been caused because of which, it looses its significance. To support said contention, defence has relied on reported judgment of Hon'ble Supreme Court in case of (Md. Sajjad @ Raju @ Salim Vs. State of West Bengal), MANU/SC/0025/2017 : (2017) 11 S.C.C. 150. In the said case, it is observed that the aspect of delay in holding T.I. parade, in absence of explanation is vital. No doubt, the Court has to examine the facts of each case to find out whether the time gap can be construed as delay, Accused No. 1 Rajik was arrested on 7.9.2009, accused No. 7 Sahebrao was arrested on 10.9.2009, whilst accused No. 8 Mohan was arrested on 11.9.2009. The requisition for holding T.I. parade was issued on 7.10.2009, whilst the T.I. parade was conducted on 23.10.2009. As such, there was total 42 days time gap in between arrest and T.I. parade.
72. The purpose of holding quick T.I. parade is to preserve the image of culprit Which has been captured by the witnesses at the time of occurrence. In this regard the defence has also relied on the reported judgment in cases of-(1) (Siddanki Ram Reddy Vs. State of Andhra Pradesh), MANU/SC/0521/2010 : 2011 All S.C.R. 49, (2) (State of Goa and another Vs. Sanjay Thakran and another), MANU/SC/7187/2007 : 2007 (1) Bom. C.R. (Cri.) 584 (S.C.) : 2007 (3) S.C.C. 755 : 2007 All S.C.R. 1861, and (3) (Mongol Tukaram Warkhade Vs. State of Maharashtra), MANU/MH/1220/2011 : 2011 (4) Bom. C.R. (Cri.) 439 : 2012 Cr.L.J. 510. We can gather from the series of judgments that particularly when witness saw assailant for very short time, and there was unexplained delay in holding the T.I. parade, it is not safe to rely on such piece of evidence. In case at hand there is total delay of 42 days in holding T.I. parade. No explanation is forthcoming to explain the delay. In the circumstances, we find that the whole process of T.I. parade is defective and does not appeal us to act upon the same.
73. Even if T.I. parade is kept aside, the fact is that P.W. 9 Sadhana Nalamwar, was well acquainted with accused No. 1 Rajik, therefore, there was no question of his identification at all. Since inception she has stated that accused No. 1 Rajik came to her house and took her husband under the pretext of having work with Patwari at Rajura. Moreover, missing report Exh. 258 lodged even prior to the disclosure of crime bears reference of involvement of accused No. 1 Rajik by his name. Moreover, FIR [Ex. 261] very much bears the name of Rajik, and presence of two unknown persons accompanying him at the relevant time. Thus, since inception, presence of two other associates of Rajik was unrevealed.
74. The prosecution not only relied on the T.I. parade, but, also relied on the direct evidence of P.W. 9 Sadhana Nalamwar, about identification of accused Nos. 1, 7 and 8 in the Court as the same culprits in whose company Advocate Nalamwar had departed. As a matter of fact, law does not obliges the investigating agency to necessarily hold the prior T.I. parade, and it is an enabling provision for the investigating agency to ensure that the investigation is on proper track.
75. The identification parade being a tool of investigation, it is not necessary to hold it in each and every case as prerequisite for proof of identity of the culprits. In this regard, learned A.P.P. has relied on the reported case of (Ravi Kapur Vs. State of Rajasthan), MANU/SC/0659/2012 : (2012) 9 S.C.C. 284, wherein it is ruled that the T.I. parade is not a must in every case, but, identification by witnesses in the Court carries importance. On the same lines, he further relied on the reported case of (Motilal Yadav Vs. State of Bihar), MANU/SC/1079/2014 : (2015) 2 S.C.C. 647, wherein the Hon'ble Supreme Court has expressed that the Court identification itself is a good identification in the eye of law, and it is not always: necessary that it must be preceded by test identification parade.
76. The said position compels us to revisit the evidence of P.W. 9 Sadhana Nalamwar, who has identified the culprits in the Court. She has stated in her evidence that, she knew accused No. 1 Rajik as well as she was able to identify the other two associates of Rajik. She stated that Rajik was present in the Court hall, and was sitting at Sr. No. 5 at the dock. On inquiry, the said person disclosed his name as Abdul Rajik i.e. accused No. 1. Further P.W. 9 stated that the person who was seated beside the driver seat in sumo vehicle, was sitting in dock at Sr. No. 1, from right side. On inquiry the said person disclosed his name as Mohan Narayan Putalwar, i.e. accused No. 8. She further stated that she was able to identify the person who was on the driver's seat of sumo vehicle. She stated that the said person was present in the Court and was sitting in dock at Sr. No. 2, from right side. On inquiry, the said person disclosed his name as Sahebrao Tonge i.e. accused No. 7. Thus, in clear and unambiguous terms, P.W. 9 Sadhana Nalamwar had identified the accused No. 1 Rajik who had come to her house to take Advocate Nalamwar. She also identified, accused No. 7 Sahebrao who was driver of the sumo vehicle and accused No. 8 Mohan who was sitting in the sumo vehicle besides the driver.
77. We have already referred that accused No. 1 Rajik, was known to P.W. 9 Sadhana Nalamwar since prior to the occurrence. At the cost of repetition, we may refer to evidence of P.W. 9, who has stated that accused No. 1 Rajik was her husband's client and was visiting his office since last 2/3 months. Moreover, at the time of occurrence, Rajik had been to the house of P.W. 9 for 5 to 10 minutes, during which she had gone to the office and had served tea to her husband. Thereafter, she had accompanied her husband upto main gate, and had talked with her husband as to whether he had taken his cell phone while leaving with Rajik. She has specifically stated that when all of them went near the sumo vehicle, a person sitting beside the drivers seat had alighted from the vehicle, on which her husband and Rajik sat in the vehicle and then, the other person who had alighted, had again sat besides the driver and then had gone.
78. It emerges from un-shattered evidence of P.W. 9 Sadhana Nalamwar that she had ample opportunity to see the other two unknown persons who accompanied her husband and accused No. 1 Rajik at the relevant time. It is not the case that she had flittering glimpse, making it difficult for her to re-capitulate the things. Pertinent to note that P.W. 9 Sadhana Nalamwar gave description of clothes worn by accused Nos. 1, 7 and 8 at the time of occurrence, which she identified in the Court. There is nothing to disbelieve her statement therefore, her flawless identification in the Court is free from doubt. In view of that, we hold that the prosecution has established that Advocate Nalamwar was last seen in the company of accused Nos. 1, 7 and 8 on 5.9.2009. Moreover, as regards accused No. 1 Rajik is concerned, his presence is fortified by the evidence of P.W. 14 Smt. Bisne.
79. No explanation is coming from accused Nos. 1, 7 and 8 on the background of established facts that they had taken both the deceased to isolated place. When the evidence on last seen is convincing, the onus lies on the accused to establish as to when he had departed from the company of the deceased. In this regard, learned A.P.P. has relied on reported case of (Ram Gulam Chaudhary and others Vs. State of Bihar), MANU/SC/0582/2001 : (2001) 8 S.C.C. 311, wherein it is observed by the Hon'ble Supreme Court that in absence of explanation of accused, it can be presumed as an adverse circumstance against him.
80. It takes us towards the series of discoveries and recoveries at the instance of different accused. In this regard the prosecution has relied on the evidence of panch witnesses namely P.W. 4-Baba Baig (Exh. 185); P.W. 5 - Abdul Hamid (Exh. 190), P.W. 7 Sunil Ippawar (Exh. 199), P.W. 8 Bhaskar Sahare (Exh. 203), P.W. 6 Mahendra Kamble (Exh. 308). Besides that, the prosecution has heavily relied on the evidence of Investigating Officer P.W. 38 Sharnagat (Exh. 485). Unfortunate to the prosecution, P.W. 4 Baba Baig, P.W. 5 - Abdul Hamid and P.W. 7 - Sunil Ippawar remained back footed, hence, they were declared hostile. However, P.W. 16 Mahendra, has supported the prosecution case and gave detailed account of multiple memorandum statements and consequential recoveries effected at the instance of different accused. No doubt, this witness has admitted that in several cases he has acted as a panch witness. Rather it was capitalized by the defence to discard his testimony. In response, the learned A.P.P. submitted - that merely because a panch witness happened to be panch in several cases, it does not amount that his evidence is to be discarded. In order to uphold said submission, he relied on reported case of (Nana Keshav Lagad Vs. State of Maharashtra), MANU/SC/0646/2013 : 2013 (4) Bom. C.R. (Cri.) 131 (S.C.) : (2013) 12 S.C.C. 721. So also he relied on the reported case of (Karamjeet Vs. State of Delhi), MANU/SC/0245/2003 : A.I.R. 2003 S.C. 1311, wherein it is observed that there is no principle of law that without corroboration of independent witness, the testimony of police personnel cannot be relied. On the same point he further relied on the case of (State of Punjab Vs. Harbans Singh and another), MANU/SC/0305/2003 : (2003) 11 S.C.C. 203. In said case, the Hon'ble Supreme Court expressed in para 8, that we do not think that merely because some of the prosecution witnesses have appeared in large number of cases earlier for the prosecution, ipso facto their evidence becomes liable to be rejected, but, we think certainly such evidence will have to be considered with great caution.
81. Bearing in mind the requirement of adopting cautious approach we have gone through the evidence of P.W. 16 Mahendra. It is his evidence that in his presence the police have seized different articles by drawing separate panchnama. In order to avoid repetition, we make reference of recoveries as stated by P.W. 16 - Mahendra as below:
82. The prosecution has examined P.W. 8 Bhaskar Sahare, to prove certain recoveries. It is his evidence that in his presence police seized certain documents, pieces of mobile sim, burnt ash, clothes, plastic bottle, mobiles, pair of chappals, driving licence, specimen signature of accused Nos. 3 and 4, cash amount, register and two cheques. While criticizing the evidence of P.W. 8 Bhaskar Sahare, who is star panch witness, it is argued that most of the evidence of this witness is inadmissible in law. Particularly, our attention is invited to paragraph No. 22 of his evidence, wherein there is detail account of the statement of accused No. 3 Lalit, as to how he had conspired with accused No. 4 Swami to kill Advocate Nalamwar and for that purpose money was paid. True, the said portion is hit by section 25 of the Evidence Act. The exception carved out under section 27 only permits the information from the accused, which relates distinctly to the facts thereby discovered, and nothing else. Though such inadmissible portion forms part of record, however, the said portion was not relied by the trial Court while arriving at a conclusion, therefore, this submission would not help the defence to muster any strength.
83. In addition, the prosecution is heavily relying on the evidence of P.W. 38 PI. Sharnagat, who has prepared several memorandum panchnamas at the instance of accused and consequential recoveries. The defence urged to discard the evidence of Investigating Officer since his evidence is not supported by independent panch witness. We take up to deal with this plea, whether evidence relating to recovery is acceptable when independent panch witness do not support the recovery and made departure from the statement made during the course of investigation. In this regard, we may refer to the decision of Hon'ble Supreme Court in case of (Madansingh Vs. State of Rajasthan), MANU/SC/0126/1978 : (1978) 4 S.C.C. 435, wherein it is observed that where the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witness do not support the prosecution version. The said view is reiterated in later decisions by the Hon'ble Supreme Court in cases of (Mohd. Aslam Vs. State of Maharashtra), MANU/SC/2255/2000 : (2001) 9 S.C.C. 362 and (Antar Singh Vs. State of Rajasthan), MANU/SC/0096/2004 : (2004) 10 S.C.C. 657. No doubt cautious approach is to be adopted which we do.
84. The evidence of memorandum and discovery is admissible in terms of section 27 of the Evidence Act. The first requirement necessary for bringing section 27 into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person of an offence. The second requirement is that the discovery of such a fact must be deposed to. The third is that at the time of receipt of information, the accused must be in police custody. The last but, the least important requirement is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. Of course, rest of the information has to be excluded. The said position of law is well explained by the celebrated judgment of Privy Council in case of (Pulkuri Kottaya Vs. Emperor), MANU/PR/0049/1946 : A.I.R. 1947 P.C. 47. In the light of said position, we have gone through the evidence of P.W. 38 PI Sharnagat. We do opt cautious approach while appreciating his evidence, since the independent panch witnesses except P.W. 16 Mahendra, turned hostile.
85. It has come in the evidence of P.W. 38 Sharnagat, that on 7.9.2009, accused No. 1 Rajik during interrogation expressed his desire to make a statement. Accordingly two panch witnesses were called in whose presence he had expressed that he would show the place where a Pistol was kept. Accordingly, memorandum panchnama Exh. 493, was drawn. Thereafter police went with accused No. 1 Rajik and 2 panch witnesses by police jeep towards Gowari Gude, where accused No. 1 Rajik asked to halt the vehicle. Then accused No. 1 Rajik took police sleuth to the house of one Vijay Nimvante. Accused No. 1 went to east-south corner of the house and took out a plastic bag containing Pistol, which was seized under panchnama Exh. 494. Thereafter accused No. 1 Rajik took police to Gadchandur, from where a jeep bearing registration No. MH 34 K 4723 was seized under panchnama Exh. 189.
86. It is evidence of P.W. 38 PI Sharnagat that, on 8.9.2009 he had seized one black coloured mobile handset model No. N-73 from accused No. 4 Swami under panchnama Exh. 201, and a mobile handset of Nokia company from accused No. 3 Lalit Prabhawat under Exh. 155. P.W. 38 PI Sharnagat gave details about seizure of various documents from the house of P.W. 9 Sadhana Nalamwar. He had collected bank account statement of accused No. 4 Swami from ICICI Bank vide panchnama Exh. 495.
87. It is his evidence that on 9.9.2009, during interrogation, accused No. 1 Rajik had made a statement that he had broken the sim card of both the deceased, and was ready to show the place where they were thrown. Accordingly memorandum panchnama was drawn. Thereafter, he had also made a statement that he was ready to show the place where money purse was burnt, as well as the clothes of accused No. 7 Sahebrao and accused No. 8 Mohan were kept. Accordingly memorandum panchnamas were drawn. It is his evidence that accused No. 1 Rajik had taken all of them to Palinala and had shown three pieces of sim card lying to the southern side of the bridge, which were seized under panchnama Exh. 230. Then at some distance, he had shown burnt ash, which was seized vide panchnama Exh. 231. Thereafter, accused No. 1 had taken police and panch witnesses to Jivti village at his rented room and from said place he had produced 6 clothes and one plastic bottle of petrol, which were seized under panchnama Exh. 232.
88. It has come in the evidence of P.W. 38 PI. Sharnagat, that on 11.9.2009, he had seized sky coloured mobile, driving licence and a pair of chappals from accused No. 7 Sahebrao vide panchnama Exh. 233. On 12.9.2009 during interrogation, accused No. 8 Mohan made a statement in presence of panch that he was ready to produce mobile handsets of both deceased. Accordingly memorandum panchnama Exh. 237 was prepared. Thereafter accused No. 8 Mohan had taken all of them to the house of Altaf Baig, where he was having a rented room. He went to southern corner of the house and took out 3 mobile handsets i.e. one silver colour Sony Ericson, one Nokia make of smoke grey colour and third of greyish colour of Nokia company. All these mobile handsets were seized in presence of the panch witnesses vide panchnama Exh. 238. Contextually we may note that the evidence of P.W. 9 Sadhana Nalamwar and P.W. 14 Sadhana Bisne, disclose that they had identified the mobile handsets of their respective husbands which were seized from accused No. 8 Mohan, which re-affirm the nexus of accused No. 8 with the crime.
89. Apart from the seizure of all these articles, it has come in his evidence that on 15.9.2009, he had obtained specimen handwriting of accused No. 4 Swami vide panchnama Exh. 233 and specimen handwriting of accused No. 3 Lalit on 20.10.2009 vide panchnama Exh. 247. It is his evidence that on 15.9.2009 accused No. 3 Lalit had made a statement that he was ready to produce cash amount of Rs. 60,000/-, kept at his house. Accordingly memorandum panchnama Exh. 242 was prepared. Then accused No. 3 Lalit had led them to his house, and had produced cash amount of Rs. 60,000/- which was seized under panchnama Exh. 242. As such detailed account was given by P.W. 38 PI Sharnagat regarding various disclosure statements made by different accused and consequential recoveries. The defence has grilled this witness from various angle. We have minutely gone through the entire cross examination, however, unable to find any material which could shake his credit. No doubt, minor variations are bound to occur, but, unless it touches to his credibility, it has no impact. Accordingly the prosecution has proved various discoveries and seizures which were within exclusive knowledge of the respective accused.
90. For the sake of convenience, different seizures proved in the evidence of P.W. 38 PI Sharnagat, are put in tabular form herein below:
91. Mere seizure of articles from the accused is not enough, but, the establishment of link of seized articles with the crime is necessary. We undertake said exercise, while unfolding the evidence on the point of conspiracy.
92. It takes us to the crucial aspect of this case, obviously which pertains to criminal conspiracy hatched by the accused, to eliminate Advocate Nalamwar. Accused Nos. 1 to 5, 7 and 8 were charged for the offence of criminal conspiracy punishable under section 120-B of the Indian Penal Code, as well as for the offence punishable under section 302 read with section 120-B of the Indian Penal Code. It-is the case of the prosecution that accused No. 4 Swami who is kingpin had hatched the conspiracy along with accused No. 3 Lalit, accused No. 1 Rajik, accused No. 7 Sahebrao and accused No. 8 - Mohan, to kill Advocate Nalamwar. Admittedly as per the prosecution case, accused Nos. 3 and 4 had not actually participated in executing the plan, but, they had hatched the conspiracy, and got it executed through accused Nos. 1, 7 and 8.
93. Conspiracy consists not merely in the intention of two or more, but, in the agreement of two or more, to do an unlawful act or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. The very agreement concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy, as long as they are co-participators in the main objection of the conspiracy. Likewise, it is not necessary that all the conspirators should participate from inception to the end of the conspiracy. There must be unity of object or purpose, but, there may be plurality of minds some time even unknown to one another amongst the conspirators. The nature of offence itself conveys that no over act is necessary, but, mere design is sufficient to constitute a punishable offence. The case in hand is a larger conspiracy initially cooked in between accused No. 4 Swami and accused No. 3 Lalit. Later on accused No. 1 Rajik, accused No. 7 Sahebrao and accused No. 8 Mohan joined the conspiracy of which each one was fully aware about the ultimate object of eliminating Advocate Nalamwar.
94. In order to establish the conspiracy, the prosecution has relied on several witnesses, each of one helps to some extent to build a bridge in between them. In this regard the prosecution has heavily relied on the electronic evidence which is in the form of Call Details Record (CDR). To establish said fact, the prosecution has examined P.W. 30 Deputy S.P. Shriram Todse and the Nodal officers from different service provider. Said evidence is consisting of P.W. 31 Commander Raut, P.W. 33 Jiwak Shiradkar, P.W. 34 Chetan More, P.W. 35 Gokul Rasal and P.W. 36 - Pravin Bindod, who are Nodal Officers of the telecom companies. The next batch is of few witnesses to establish user of particular mobile by different accused. To that effect, the prosecution has relied on the evidence of P.W. 24 Dharampal Karade, P.W. 26 Abdul Jabir and P.W. 27 Babarao Lanjewar. It is the prosecution case, that the contract money has changed hands from accused No. 4 Swami to accused No. 3 Lalit, who was assigned the job of procuring weapon and engaging men on mission. To establish said fact, prosecution has examined P.W. 21 Dubey, P.W. 22 Devidas Jivre and P.W. 38 PI. Sharnagat.
95. The gist of proving criminal conspiracy is an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal, but, done by illegal means. It is not necessary to prove the conspiracy by direct evidence, since direct evidence on conspiracy is seldom available. It is a matter of inference, surely to be drawn from the facts and circumstances which are established by the prosecution. At this juncture, we may advert to some settled legal propositions in the field. At the inception, we may profitably go through the observations of the Hon'ble Supreme Court in case of (Baliya @ Bal Kishan Vs. State of Madhya Pradesh), MANU/SC/0838/2012 : (2012) 9 S.C.C. 696 and (Ram Naraian Poply Vs. CBI), MANU/SC/0017/2003 : A.I.R. 2003 S.C. 2748:
96. In true sense, intention to commit crime and joining hands with persons having the same intention is foremost essential ingredient of conspiracy. Further not only the intention, but, there has to be an agreement to carry out the object of the intention, which is an offence. The question for consideration is, whether all the charged accused had intention and had agreed that the crime be committed? Mere wish of some of the accused is not enough, but, the agreement to execute the intended act is necessary. It is argued by the learned A.P.P. that direct evidence on conspiracy is rarely available and it has to be proved by the circumstances. The next proposition is that, over fact is not necessary to prove conspiracy. To support this submission, the prosecution has relied on the reported case of Ram Naraian Poply Vs. CBI (supra). The bottom line is that the offence of criminal conspiracy is an agreement to commit the offence. Such agreement can be proved either by direct evidence or by circumstances from which an inference can be drawn.
97. As noted above, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in section 120B read with the proviso to sub-section (2) of section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime, and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in section 120B of the I.P.C.
98. Defence argued that the prosecution has miserably failed to establish the criminal conspiracy. It is argued that the evidence led by the prosecution, is quite insufficient to form opinion of definite tendency about criminal conspiracy. In order to support said submission, reliance is placed on various judgments. Initially reliance is placed on the case of (Kiriti Pal Vs. State of West Bengal), MANU/SC/0549/2015 : 2015 B.C.I., (soft) 442 (S.C.) : 2015 All. M.R. (Cri.) 2066 (S.C.) : 2015 (11) S.C.C. 178, wherein it is held that apart from the telephonic conversation, there was no other evidence adduced by the prosecution to established that the main accused had hatched conspiracy, hence conspiracy is not proved. The said decision is distinguishable on facts. Herein, apart from telephonic conversation, the prosecution has adduced evidence on some other links, like handing over cash amount to execute the plan and strong motive. The next reliance is on the judgment in case of (State Government of NCT of Delhi), MANU/SC/1015/2015 : (2016) 1 S.C.C. 472. In said case it is ruled that mere knowledge or discussion would not be sufficient to prove the conspiracy. Certainly meeting of minds is essential to establish conspiracy. Likewise defence relied on the reported cases of Baliya @ Bal Kishan (supra); (S. Anil Raja Vs. State of Tamil Nadu), MANU/SC/0548/2010 : (2010) 8 S.C.C. 233; (State of Karnataka Vs. E. Ravi kumar and others), MANU/SC/0904/2018 : (2018) 9 S.C.C. 614. In these cases, the essentials which are required to establish the criminal conspiracy are explained by the Hon'ble Supreme Court.
99. Coming to the evidence on conspiracy, initially we prefer to advert to the electronic evidence. It is the case of the prosecution that accused Nos. 1, 3, 4, 7 and 8 were in constant touch with each other through mobile phones during the relevant period. They on and often had conversation on mobile, which according to the prosecution is an important link to draw inference about their involvement in the crime. It has come through the evidence of P.W. Nos. 31, 33, 34, 35 and 36, who are Nodal Officers from different companies namely Vodafone, Airtel, Bharti and BSNL, that as per requisition of police, they have furnished call details (CDR) about the concerned mobile number. The information i.e. CDR was for the period from 2.8.2009 to 5.9.2009 i.e. the date of incident. According to the prosecution, it is evident from the evidence of P.W. 26 Abdul Jabir, that the concerned sim was given by him to accused No. 1. Likewise, evidence of P.W. 27 Babarao Lanjewar discloses that his son gave concerned sim to accused No. 8 Mohan. Evidence of P.W. 24 Dharampal discloses that, the concerned sim was given by him to the accused No. 7 Sahebrao, who was driver.
100. It has come in the evidence of PI Sharnagat (P.W. 38) that he had seized mobiles from accused No. 4 Vangipuram vide seizure panchnama Exh. 201, from accused No. 3, vide seizure panchnama Exh. 202. So also, seized mobile from accused No. 8 vide seizure memo Exh. 238 and from accused No. 7 Sahebrao under panchnama Exh. 233.
101. It has come on record that, accused No. 1 Abdul Rajik was using mobile phone No. 9422579608, accused No. 3 Lalit was having mobile No. 9421806222, accused No. 4 Vangipuram was having mobile No. 94222170132, accused No. 7 Sahebrao was having mobile No. 9303815677, accused No. 8 Mohan was having mobile No. 9923956204. Likewise, deceased Nalamwar was having mobile No. 9890305464 and deceased Vijay Bisne was having mobile No. 9422137401.
102. The Investigating Officer has also collected information about the sim numbers used by both the deceased. Though it is argued that Customer Application Form (CAF), was not recovered, however, the oral evidence of above witnesses is sufficient to disclose the use of concerned mobile by respective accused. Needless to say that the production of CAF would assist, but, it is not a sure test to hold that the said person was only using the sim which was obtained in his name. It is common knowledge that sims are registered in the name of one person, whilst used by others. The evidence led by these witnesses and seizure of mobiles from respective accused alongwith the call details are pointed by the prosecution. Mobile numbers which were used by the accused and deceased are recapitulated as follows, as has come in the evidence.
103. Call details of accused Nos. 1, 3, 4, 7 and 8 are crucial one. No doubt the inter se conversation between the accused soon before the incident is relevant, since always conspiracy precedes to the actual occurrence. The CDR was for the period from 2.8.2009 to 5.9.2009. We prefer to extract the call details of the crucial day i.e. 5.9.2009, which assumes special significance, are as under.
Call details of accused No. 1 Abdul Rajik to accused No. 3 Lalit Prabhavat
There were total 159 calls by accused No. 1 - Abdul Razik to accused No. 3 Lalit Prabhavat during 2.8.2009 to 5.9.2009. There were total 3 calls by accused No. 1 Abdul Razik to accused No. 4 Krishna Swami. From 30.8.2009 to 31.8.2009.
Call details of accused No. 1 Abdul Razik to accused No. 7 Sahebrao Togre.
There were total 14 calls from accused No. 1 Abdul Razik to accused No. 7 Sahebrao Togre from 10.8.2009 to 5.9.2009. There were total 10 calls from accused No. 1 Abdul Razik to accused No. 8 Mohan Putlawar from 4.8.2009 to 4.9.2009.
Call details of accused No. 1 Abdul Razik to deceased Nalamwar.
There were total 10 calls from accused No. 1 Abdul Razik to deceased Nalamwar from 8.8.2009 to 5.9.2009.
Call details of accused No. 3 Lalit to accused No. 4 Krishna Swami.
There were total 40 calls from, accused No. 3 Lalit to accused No. 4 Krishna Swami from 1.6.2009 to 7.9.2009.
Call details of accused No. 3 Lalit Prabhavat to accused No. 7 Sahebrao.
There were total 4 calls from accused No. 3 Lalit Prabhawat to accused No. 7 Sahebrao from 5.9.2009 to 7.9.2009. There were total 8 calls from accused No. 3 Lalit to accused No. 8 Mohan of 6.9.2009.
104. The Nodal Officer has also produced certificate under section 65-B[4] of the Indian Evidence Act, therefore, the data in electronic form supplied by these authorities, can be admitted in evidence. In view of section 65-B of the Indian Evidence Act, any information contained in electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by the computer shall be deemed to be also a document, and it shall be admissible in any proceeding without further proof or production of original if conditions of this section are complied. Moreover, electronic evidence is admissible and provisions under section 65-A and 65-B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under section 65-B(4).
105. Admittedly, Nodal Officers have given the evidence that the data is electronically generated and it was supplied by email and also downloaded and supplied after due certification under section 65B of the Evidence Act. Therefore, computer generated record which is duly certified by Nodal Officer can be well admitted in evidence.
106. It can be seen from the call details that, deceased Nalamwar had made a phone call to Vijay Bisne on 5.9.2009 at 20.37 hours (Ex. 457). Whereas, during the period from 2.8.2009 till 5.9.2009 there were total 159 phone calls in between accused No. 1 Rajik and accused No. 3 Lalit. Similarly, accused No. 4 Vangipuram Krishna Swami had also made phone calls to accused No. 1 Abdul Rajik from 30.8.3009 to 31:8.2009. It shows connectivity between accused No. 1 Rajik, accused No. 3 Lalit and accused No. 4 Vangipuram Krishna Swami. Call details at Ex. 475, 476 and 478 show direct connection between accused No. 1, 3 and 4. Similarly, the call details of accused No. 7 Sahebrao show that he had connection with accused No. 1 Rajik. Call details of accused No. 1 Rajik show his calls to deceased Adv. Nalamwar at Ex. 457. Call details of accused No. 4 Swami show his connection with accused No. 3 Lalit (Ex. 476 and 478), which indicates that they all were having connectivity with each other.
107. We may clarify that we have extracted above, the call details of the date of occurrence i.e. 5.9.2009, however, the earlier conversation in between the accused is quite relevant. It emerges from the above data that, accused No. 1 Rajik had total 159 calls with accused No. 3 Lalit during the period from 2.8.2009 to 5.9.2009. There were three calls in between accused No. 1 Rajik with accused No. 4 Swami. There were 14 calls in between accused No. 1 Rajik with accused No. 7 Sahebrao and 10 calls in between accused No. 1 Rajik and accused No. 8 Mohan. Thus, the said electronic evidence shows that accused No. 1 was in constant contact with accused Nos. 3, 4, 7 and 8.
108. It is the case of prosecution that accused No. 4 Swami an old man, had assigned the job to accused No. 3 Lalit to engage contract killers, who in turn joined others in conspiracy. We find considerable force in said submission because there were total 159 calls just within 32 days, in between accused No. 1 Rajik and accused No. 3 Lalit, which speaks for itself. Moreover, on the crucial day, accused No. 1 Rajik had a talk with accused No. 3 Lalit around 6.58 p.m., 7.47 p.m., 10.05 p.m. and 10.06 p.m. We may recall that on the day of incident around 8.00 to 8.30 p.m., accused No. 1 Rajik had talk with Advocate Nalamwar and then the later's cell phone was not reachable within a short span of 1 or 2 hours.
109. It is pertinent to note that before entering into the house of deceased Nalamwar, accused No. 1 Rajik had two calls with accused No. 3 Lalit and after two hours again he had made two calls to accused No. 3 Lalit. No explanation is coming forward on this aspect either from accused No. 1 Rajik or accused No. 3 Lalit. Beside omnibus denial, they have nothing to explain on such crucial aspect. The said sequence of calling to each other prior to abduction and thereafter, perfectly matches the prosecution case about close association of accused No. 3 Lalit with the entire episode. Therefore, a logical inference can be well drawn that accused No. 3 Lalit was closely monitoring the things on his phone at relevant time. Perhaps after completing desired work, accused No. 1 Rajik had reported the same to his master, which is the only inference that can be logically deduced.
110. Catching the thread of relevancy, we note that on the date of incident i.e. on 5.9.2009, there were 7 calls in between accused No. 1 and accused No. 7, who was driver of sumo vehicle. Moreover, on 5.9.2009, there were two calls in between accused No. 3 Lalit and accused No. 4 Swami, which connects the link between them. On that day, at crucial time i.e. around 8.13 p.m., there was telephonic conversation in between accused No. 3 and accused No. 7, sumo driver. The said exercise discloses that on the crucial day, all were in close telephonic contact with each other. The said material is very much relevant and conspicuously assist us to draw inference.
111. We may recall that it is the prosecution case that accused No. 4 Swami and accused No. 3 Lalit initially conspired to commit murder of Advocate Nalamwar, and then accused No. 1 Rajik, accused No. 7 Sahebrao and accused No. 8 Mohan were hauled in the conspiracy. Further it is the prosecution case that in pursuance to the conspiracy on 5.9.2009, around 8.15 p.m., accused No. 1 Rajik along with accused No. 7 Sahebrao and accused No. 8 Mohan, went to the house of Advocate Nalamwar, took him out of the house under some pretext and killed him in the forest area. So also they killed Vijay Bisne, who accidentally happened to be with them at the relevant time.
112. The very purpose of recalling the prosecution case is to examine the same in the light of frequent communication in between the accused in the form of CDR. We may reiterate that said exercise is necessary since it is very difficult to have direct evidence on conspiracy. With microscopic eye, we have examined the CDR relating to cellphones used by all the accused. There were total 40 calls in between accused No. 3 Lalit and accused No. 4 Swami, during the span of 3 months, which strengthen the case of prosecution, that both were having intimacy. There were 3 calls just within a week preceding to the incident in between accused No. 4 Swami and accused No. 1 Rajik, which shows their nexus in the proximity. It is the case of prosecution that accused No. 7 Sahebrao and accused No. 8 Mohan, were associates of accused No. 1 Rajik, who took a lead at the instance of accused No. 3 Lalit. The said circumstance, is established by 14 phone calls in between accused No. 1 Rajik and accused No. 8 Sahebrao, within one month preceding the incident. Likewise, there were 10 calls in between accused No. 1 Rajik and accused No. 8 Mohan, during said period.
113. Pertinent to note that as per the prosecution, accused No. 3 Lalit had engaged the services of accused No. 1 Rajik, accused No. 7 Sahebrao and accused No. 8 Mohan, out of them accused No. 1 Rajik was the lead. Total 159 calls during a span of just 2 months preceding the incident, in between accused No. 3 Lalit and accused No. 1 Rajik, speaks about their close connection. Likewise, accused No. 3 Lalit was also in contact with accused No. 7 Sahebrao and accused No. 8 Mohan. It is worthwhile to note that accused No. 3 Lalit had 4 calls with accused No. 7 Sahebrao at the crucial time i.e. in between 5.9.2009 to 7.9.2009. We may advert our attention to the phone calls by accused No. 7 Sahebrao to accused No. 3 Lalit on 5.9.2019, around 11.13 p.m. i.e. 2 hours after the abduction. Perhaps the said call was to report the happenings to Lalit, who was in control of things and may be eagerly waiting for the outcome. We feel it necessary to mention that said exercise corroborates the prosecution case of conspiracy on all fours.
114. We may note that the CDR of mobile phone used by accused No. 1 Rajik disclose that on 5.9.2009, around 8.13 p.m., he had telephonic talk with deceased Advocate Nalamwar. This fact strongly corroborates the evidence of P.W. 9 Sadhana Nalamwar that at relevant time, her husband Advocate Nalamwar received a phone call from accused No. 1 Rajik on which Advocate Nalamwar asked Rajik to come over, which we have referred earlier.
115. It is the submission of defence that the electronic evidence cannot be relied for want of necessary certificate under section 65-B[4] of the Evidence Act. In this regard, reliance is placed on the judgment of this Court in case of (Faim @ Lala Ibrahim Khan Vs. State of Maharashtra), MANU/MH/3080/2015 : 2016 (1) Bom. C.R. (Cri.) 459 : 2016 All. M.R. (Cri.) 4225. On the other hand, learned A.P.P. has submitted that the Hon'ble Supreme Court in later decision in case of (Shafi Mohammad Vs. State of Himachal Pradesh), MANU/SC/0058/2018 : (2018) 2 S.C.C. 801, ruled that the requirement of certificate under section 65B(4) is not always mandatory. We have gone through the said reported judgments wherein the Hon'ble Supreme Court has considered the earlier pronouncement in case of (Anwar P.V. Vs. P.K. Basher), MANU/SC/0834/2014 : (2014) 10 S.C.C. 473 and expressed as below:
"29. 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 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 9 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."
116. As a matter of fact P.W. 31 Rawat, P.W. 33 Shivadkar, P.W. 34 - Chetan have duly proved the certificates under section 65-B(4) of the Evidence Act, which are at Exhs. 426, 447 and 459. Besides that, it is a matter of record that CDR is furnished by the nodal officer of the service provider companies alongwith official endorsement. Undoubtedly they are the independent witnesses and the CDR is procured from electronic system and therefore, we have no hesitation to accept it. We are satisfied that the prosecution evidence is potential to establish the live link in between accused Nos. 4, 3, 1, 7 and 8, which will assist us to draw a conclusion.
117. Coming to the aspect of disbursement of contract amount, the prosecution has come up with a case that accused No. 4 Swami had paid Rs. 2.10 lakhs to accused No. 3 Lalit to accomplish the desired act. Rather it is the case of prosecution that accused No. 3 Lalit was close confidant of accused No. 4 Swami an old man, who had assigned the job of engaging contract killer. Accused No. 3 Lalit, accepted money and engaged the services of accused Nos. 1, 7 and 8 to materialize the design. Usually evidence of this kind is seldomly available, however, in case at hand, the prosecution led evidence to establish that amount of Rs. 2.10 lakhs was paid by two cheques to accused No. 3 Lalit. For this purpose, the prosecution has examined P.W. 21 Kamal kumar Dubey Branch Manager and P.W. 22 Devidas Jivne Cashier of ICICI Bank. It is amply established through their evidence that two self cheques (Exh. Nos. 351 and 352) of Rs. 50,000/- and Rs. 1,60,000/- were drawn by accused No. 4 Swami, which were encashed by accused No. 3 Lalit by putting his signature on the back side of the cheques.
118. The evidence Kamal kumar Purhshottam Dube (P.W. 21) shows that cheque No. 007101 dated 8.7.2009 of Rs. 50000/- (Exh. 351), was issued on the account of accused No. 4 Krishna Swami Vangiupuram and was presented before him. Another cheque No. 007110 dated 13.7.2009 of Rs. 1,60,000/- (Exh. 352) was presented to the bank, and it was seized by the police under panchnama Exh. 246.
119. Moreover, the prosecution has examined P.W. 29 Sanjay Kathane, who is a handwriting expert. It has come in his evidence that the disputed cheques and specimen signatures of accused No. 4 Swami and accused No. 3 Lalit were sent for his examination. On examination, he opined that both the cheques were written by one and the same person who gave specimen signatures marked S1 to S6 i.e. accused No. 4 Swami. Pertinent to note that neither accused No. 4 Swami has disputed issuance of two cheques for encashment to accused No. 3 Lalit, nor the later denied. During statement under section 313 of the Criminal Procedure Code, accused No. 3 Lalit explained that he was treating accused No. 4 as his uncle and was doing his miscellaneous work, like withdrawal of amount from Bank, railway reservations etc. Towards gratuitous service, he had withdrawn the amount for accused No. 4 Swami and returned to him. Moreover, accused No. 4 Swami stated that for religious purpose he had withdrawn money through accused No. 3 Lalit, who was just like his nephew. Said explanation is to be read in context with the entire scenario.
120. Pertinent to note that besides questioned withdrawals, no other instances are shown to vouch the truthfulness of the explanation given by these witnesses. The feeble attempt to shield the transaction does not appeals us. The fact remains that accused No. 4 had given cash amount of Rs. 2.10 lakhs to accused No. 3 Lalit. The Investigating Officer had seized the account extract of accused No. 4 as well as two cheques which were encashed by accused No. 3 Lalit. This circumstance, of course in isolation speaks nothing, but, in context would speak volumes.
121. The evidence unfolds that the first withdrawal of Rs. 50,000/- was on 8.6.2009, whilst the later of Rs. 1,60,000/- was on 13.7.2019. In this regard, it is argued that both withdrawals were much earlier, therefore, they cannot be linked with the incident. Though the withdrawals were one or two months preceding to the incident, it does not mean that it has no nexus at all. It emerges from the evidence that it was a larger conspiracy which is a continuing act. In order to procure the weapon, and engage the assailants, the money appears to be parted earlier. Moreover, it appeals to us that it was a full proof preplanned conspiracy designed at earlier point of time and then gradually acted upon as designed.
122. Coming to the evidence of ballistic expert, which has crucial role to play, it is in the form of evidence of P.W. 32 Pramod Misal. The entire endeavor was to prove that the bullets which were recovered from the brain matters of both the deceased, were fired from the pistol seized at the instance of accused No. 1 Rajik. So also the empty cartridges seized from the place of occurrence, are capable of chambering said pistol. The case being rested on circumstantial evidence, this is an important link to connect the accused with the crime. The expertize of P.W. 32 Pramod, is very much evident from his statement. He is M.Sc. in Physics, Chemistry and had been working as Assistant Chemical Analyzer. He had undergone two years training of examining fire arms and ammunitions. He had examined 175 cases per year in ballistic and given opinion. Not only that, he had presented 8 research papers on the subject of Ballistic.
123. It has come in the evidence of the Ballistic expert, that on 25.9.2009, he had received 10 sealed parcels and 6 sealed envelopes through police relating to crime No. 29/2009, and he has examined the articles on 9.11.2009. His evidence shows that by same country made pistol, both bullets recovered from the dead bodies were fired. Moreover, the live cartridges found on the spot were capable of firing 7.65 mm pistol. He has given a specific opinion that the concerned bullets marked as B5 and C5, were fired from single firearm from the same country made pistol marked as AV He has identified the pistol in the Court as well as identified two bullets, two cartridges and two empty cartridges. Particularly it has come in his evidence that on physical examination he found that the seized pistol was in working condition. He took nitric test as well as bulging marks were observed. He had prepared examination report which are at Exhs. 439 and 440. This being crucial one, the analysis report is reproduced herein below:
"Exhibit 1 is a country made pistol in working conditions. It is capable of chambering and firing 7.65 mm pistol cartridges. Residue of fired ammunition nitrite was detected in the barrel washings of exhibit 1, showing that the pistol was used for firing prior to its receipt in the laboratory. Two 7.65 mm pistol cartridges from exhibit 2 were successfully test fired through the country made pistol exhibit 1..
The empties in exhibit 3A and exhibit 3B are the fired 7.65 mm pistol cartridge cases without primer caps. The characteristics bulging and chamber marks examined under comparison microscope on the empties in exhibit 3A and exhibit 3B tally among themselves and with those on the 7.65 mm pistol cartridges test fired through the country made pistol exhibit 1, showing that the 7.65 mm pistol empties in exhibit 3A and exhibit 3B have been fired through the country made pistol exhibit 1.
The characteristics lengthwise superficial brushings marks examined under comparison microscope on the surface of 7.65 mm pistol bullets in exhibit 1 of BL n-99/09 (bullet retrieved from the body of deceased Pradeep Murlidhar Nalamwar) and exhibit 1 of BL n-100/09 (bullet retrieved from the body of deceased Vijay Nathuji Bisane) tally amongst themselves and with the bullets resulted from the test firing of 7.65 mm pistol cartridges through the country made pistol exhibit 1 of present case, been fired through the country made pistol exhibit 1 of present case."
124. His evidence is tested by way of cross examination, but, the defence is not able to bring out anything. In the result the evidence of ballistic expert supported by scientific analysis is sufficient to establish that the country made pistol seized from accused No. 1 Rajik was used in firing two bullets, which were recovered from the dead bodies. Moreover, the empty cartridges found at the place of occurrence were of the fired bullets. We consider the same as a crucial link to connect accused No. 1 Rajik with the crime besides other things.
125. Contextually, we have also gone through the evidence of Medical Officer P.W. 13 - Dr. Jadhav, who opined that the injuries found on the dead bodies of Advocate Nalamwar and Vijay Bisne were possible by firing of bullets from the seized firearm. He has also identified the bullets which were found in the brain matter of both the deceased. Therefore, the evidence in this regard corning from an independent quarter and especially based on scientific knowledge vouch about its truthfulness and credibility.
126. The prosecution has led evidence regarding examination of seized articles through chemical analyzer and its report. The prosecution has examined police constable P.W. 23 Kishore Sherki and P.W. 25 Dilip Raut, who had carried the seized articles for chemical examination. The chemical analyzer's report Exh. 509 to Exh. 514 are produced on record. It discloses that the earth collected from the place of incident was mixed with blood. The analysis report shows that the clothes of deceased Advocate Nalamwar were having blood stain of "B" group, and blood on the clothes of deceased. Bisne was detected of group "AB". Likewise, the clothes of accused No. 1 Rajik were having blood stains of "AB" group. Human blood was found on the clothes of accused No. 8 Mohan, though the result was inconclusive. Pertinent to note that there was blood of "AB" group on the clothes of accused No. 1 Rajik, which was blood group of deceased Bisne. The human blood was detected on the clothes of accused No. 8 Mohan, sans explanation, certainly it being vital circumstance strongly goes against both of them.
127. Learned A.P.P. submitted that in absence of explanation of finding of human blood on the clothes of accused, it is to be treated as an adverse circumstance or an additional link against the accused. In this regard, he relied on the reported case of Nana Keshav Lagad Vs. State of Maharashtra, MANU/SC/0646/2013 : A.I.R. 2013 S.C. 3510, wherein the Hon'ble Supreme Court has ruled that in absence of any explanation to said circumstance, it goes against the accused. As such, scientific analysis firmly connects the accused No. 1 Rajik and accused No. 8 Mohan with the death of Advocate Nalamwar and Bisne.
128. It is prosecution case that both the deceased were taken to Jogapur forest at isolated place and killed by country made pistol. In order to establish the place of incident, the prosecution has examined P.W. 1 Vilas Tumane, who acted as panch witness for spot panchnama and seizure of articles found at the place of incident. Precisely, it is his evidence that, in his presence the police had inspected the place of occurrence and prepared spot panchnama (Exh. 165). The police had collected blood mixed earth, plain earth, two empty cartridges, one live cartridge and one footwear from the spot by drawing seizure panchnama (Exh. 168). Moreover, in his presence, the inquest panchnama (Exh. 166) was drawn on the dead body of Advocate Nalamwar, and inquest panchnama (Exh. 167), on the dead body of deceased Vijay Bisne. He stated that in his presence photographs of dead bodies and the place of occurrence were taken. His entire evidence gives detailed account about the position of dead bodies lying on the spot. He had identified the articles seized from the place of occurrence, in the Court.
129. Besides that, to establish the exact place and position of dead bodies, the prosecution has examined photographer P.W. 5 Kale. He has produced a coloured photograph at Exh. 303, about dead bodies and place of occurrence at Jogapur forest. The said evidence is well supported by the evidence of PI. Anand Kaviraj (Exh. 20), who had drawn the spot panchnama and had effected seizure at the place of occurrence. Therefore, there is no manner of doubt that both the deceased were lying at the isolated place i.e. Jogapur forest with head injury.
130. It brings us to one another circumstance, which pertains to abscondence of accused No. 7 Sahebrao. It is the case of the prosecution that soon after the occurrence, when accused No. 7 Sahebrao got wind that police are searching for him, he went absconding, and this is an incriminating circumstance against him. It has come in the evidence of P.W. 28 pharamsingh Chavhan, that he has employed accused No. 7 Sahebrao, as a driver on his sumo vehicle. On 5.9.2009, in the late hours, he proceeded with his family to Gauri village alongwith Sahebrao, as his driver. In the way, he received a phone call from Jivti Police Station enquiring about accused No. 7 Sahebrao. It is his evidence that thereafter, he noticed that accused No. 7 Sahebrao was facing some difficulty in driving the vehicle and within short while Sahebrao stopped the vehicle at bus stand of Gadchandur and under the pretext of getting fresh, he went away. Since accused No. 7 Sahebrao did not return, P.W. 28 Dharamsingh Chaouhan tried to contact him on mobile, but, his mobile was switched of. The said independent evidence clearly indicates that without any reason Sahabrao went missing. Pertinent to note that accused No. 7 Sahebrao had not furnished any explanation in this regard in his statement under section 313 of the Code of Criminal Procedure.
131. The subsequent conduct of abscondence is relevant in terms of section 8 of the Evidence Act. True, mere absconding by itself does not necessarily lead to firm conclusion of guilty mind. However, the act is a relevant piece of evidence to be considered alongwith other evidence. The instant reaction of accused No. 7 Sahebrao of leaving the vehicle in the midway and running away, speaks about his guilty mind. Therefore, the circumstance that accused No. 7 Sahebrao has absconded soon after the incident also helps to a little extent to draw conclusion about his participation in the crime.
132. It is submitted that the prosecution has not examined the police person who took down the missing report as well as FIR, and therefore, genesis of crime is not proved. In this regard, defence relied on reported case of (Mahtab Singh and another Vs. State of Uttar Pradesh), MANU/SC/0564/2009 : (2009) 13 S.C.C. 670. In said case, the Hon'ble Supreme Court held that when the genesis of the crime has been rendered doubtful, then it goes against the prosecution case. We do not find anything adverse in non examination of these police persons, since the missing report (Exh. 258) and FIR (Exh. 261), are very much on record. Moreover, genesis of crime is homicidal death of Advocate Nalamwar and Vijay Bisne, which is duly proved by the prosecution.
133. It is also argued that merely because it is a case of multiple murder in shocking manner, the Court shall not be influenced by said circumstance while appreciating the evidence. In this regard, defence has relied on the reported case of (Arjun Marik Vs. State of Bihar), MANU/SC/1037/1994 : 1994 Supp. (2) S.C.C. 372. It was a case of triple murder, and in that context the Hon'ble Supreme Court observed that in a murder case which is cruel and revolting, it becomes more necessary for the Court to scrutinize the evidence with great care, least the shocking nature of murder might induce instinctive reaction against dispassionate judicial scrutiny of the evidence in law. Certainly, keeping aside the aspect of shocking nature and the number of deaths, we have undertaken the exercise of scrutinizing the evidence on the settled parameters, obviously by adopting due care and caution. The defence would submit that the prosecution has failed to lead evidence of tower location of the accused which weakens the prosecution case. In this regard, defence has relied on the judgment of Kerala High Court in case of [Jamal Hassan Vs. Sub Inspector of Police), Criminal Appeal No. 2434/2010, dated 14.1.2011 and on the judgment of the Hon'ble Supreme Court in case of (Sanjiv Bhatt Vs. Union of India), MANU/SC/1156/2015 : (2016) 1 S.C.C. 1. True, the mobile tower location, with respect to the mobile of accused and deceased if produced, would have assisted, but, failure of investigating agency to procure said evidence would not frustrate the entire prosecution case as other clinching material is available. Needless to say that the lapses on the part of the investigating agency would not benefit the accused, unless the lapses relate to vital aspects.
134. Then the defence has urged that the incriminating material is not put to the witnesses and therefore valuable right of the accused to explain the adverse circumstance has been taken away, and it shatters the prosecution case. In support of said contention, defence relied on the reported cases of (Tara Singh Vs. State), MANU/SC/0030/1951 : A.I.R. 1951 S.C. 441 and Suit Biswas Vs. State of Assam, MANU/SC/0564/2013 : (2013) 12 S.C.C. 406. No doubt, in these cases, the legal position is explained that the incriminating circumstances are to be put to the accused to obtain their explanation, if any, and the same cannot be used against them and should be excluded while drawing conclusion. Obviously, the said aspect needs to be assessed on the basis of facts of the case.
135. Particularly our attention is invited to the inter se telephonic conversation in between the accused, and to the serological report. We have minutely gone through the statements of accused No. 3 Lalit and accused No. 4 Swami to that effect. Particularly as regard to accused No. 4 Swami is concerned, the evidence about CDR is put to him vide question Nos. 501, 535, 536, 541, 542, 543, 546, 547, 557 to 562. Similar are the questions put to accused No. 3 Lalit. These questions relate to evidence of different nodal officers and CDR produced by them. Therefore, it cannot be said that the said incriminating material has not been put to the accused to obtain their explanation. Likewise question Nos. 637 and 638 are specifically put to them by which their attention was invited/attracted towards finding of blood with specific group on the seized clothes. Those questions with same serial numbers were also put to rest of the accused, therefore, the valuable right of accused to explain the incriminating material has been well protected.
136. The prosecution endeavoured to show that since inception there was deceitful intention. In this regard, the prosecution has examined P.W. 11 Mr. Yadav who was working as Talathiat Tahsil Korpana. It has come in his evidence, that he had not received any application from accused No. 1 Rajik for carrying mutation entry or otherwise. This exercise was done by the prosecution only to establish that accused No. 1 Rajik had no work at all, but, by feigning that he had some work with Talathi, in preplanned manner took Advocate Nalamwar away from his house to execute the plan. It is evident that Advocate Nalamwar was taken from his house by deceitful means and nothing else. It bears relevance since this is a positive step taken by accused to accomplish a well tailored plan.
137. We must advert to the important aspect of criminal trial that is, quick lodgment of FIR, which eliminates the chances of concoction. In case at hand, Advocate Nalamwar went missing from his residence in the night of 5.9.2009, whilst on the following day in the noon, his dead body was found. Around 1.00 noon, dead bodies were found then, immediately around 2.30 p.m. P.W. 9 Sadhana, lodged oral report with police (Exh. 261). Pertinent to note that the said report very much bears the reference that accused No. 1 Rajik took her husband and two unknown persons had accompanied him. The earliest disclosure of three culprits within few hours from the disclosure of the crime assumes great significance and strengthen the prosecution case.
138. It emerges from the above evidence that the prosecution has firmly established following circumstances:-
(1) Homicidal death of both deceased.
(2) Last seen theory.
(3) Recovery of articles from accused connecting to crime.
(4) Ballistic experts report.
(5) Chemical Analyzer's report.
(6) Conspiracy.
(7) C.D.R.
(8) Parting of amount to accomplish conspiracy.
(9) Strong motive to commit crime.
(10) Abscondence of accused No. 7.
139. When we take a resume of entire evidence, it is established that accused Nos. 1, 7 and 8 took deceased Advocate Nalamwar by deceitful means to isolated place. On the way Advocate Nalamwar took his friend Vijay Bisne from his house. He was taken to isolated place and both were done to death by means of country made fire arm. As regards accused No. 3 Lalit and accused No. 4 Swami are concerned, their role is of conspirators, whilst the rest three were the handlers who accomplished the plan. In order to establish the link of accused No. 3 Lalit and accused No. 4 Swami, there is ample evidence in respect of inter se phone calls, and payment of amount. So far as accused No. 3 Lalit is concerned, he was in constant touch with all the accused during, after and at the time of actual occurrence, as detailed above. Likewise, call detail shows proximity in between accused No. 3 Lalit and accused No. 4 Swami, particularly repeated calls on the date of occurrence. The prosecution has led ample evidence as detailed above, that accused No. 4 Swami had parted the cash amount of Rs. 2.10 lakhs to accused No. 3 Lalit, who acted as a middle man and engaged services of hired killers i.e. accused Nos. 1, 7 and 8.
140. It emerges from the evidence that besides accused No. 4 Swami, rest had no reason at all to eliminate Advocate Nalamwar and unanticipated additional death of Vijay Bisne. The said circumstance also strengthen the prosecution case about the culpability of accused No. 4 Swami. Otherwise, the rest had no reason to commit the crime. It is a rare case where the prosecution succeeded in establishing the strong motive not only by oral evidence, but, by producing documents to show that there was trite deep rooted enmity between accused No. 4 Swami and deceased Advocate Namalwar. It is to be remembered that accused No. 4 Swami an old man, aged about 70 years, has paid huge amount of Rs. 2.10 lakhs to accused No. 3 Lalit, his man of confidence. The explanation being unsatisfactory, the logical inference is that to remove the hurdle in the property deal, accused No. 4 Swami had asked accused No. 3 Lalit to hire the services of contract killers to finish Advocate Nalamwar. In turn the accused No. 3 Lalit accepted huge money, and deputed men on the job, which is evident from his constant telephonic conversation with them. At the cost of repetition, we may say so since accused Nos. 7 and 8 were even not knowing Advocate Nalamwar, still they swung into action. The reason is obvious, that at the behest of somebody else, they have ventured into the task, obviously for pecuniary gain. Case of accused No. 1 is on similar footing. Though he had casual acquaintance with Advocate Nalamwar, had no reason to take revenge on Advocate Nalamwar, meaning thereby he was also a pawn used by somebody else.
141. The link in between all the accused is clearly established by various circumstance like repeated phone calls, frequent communication at crucial time, evidence of parting of money, seizure of pistol, blood stained clothes, seizure of mobile handsets of deceased, and evidence of last seen. We have assessed the evidence of conspiracy by keeping in mind the well settled principle that the conspiracy is to be proved by way of inference on the basis of proved facts. From the above noted firmly established facts, the inference of conspiracy can be drawn without any hesitation. Unfortunately, the destiny was against Vijay Bisne, since no one had conspired to kill him, but, when by chance he accompanied Advocate Nalamwar, he received the same treatment.
142. In the given facts and circumstances, we can safely come to the conclusion that, though entire case of prosecution is based on circumstantial evidence, however, the prosecution succeeded in establishing various facts and circumstances as stated in foregoing paras and, if they are taken into consideration, its cumulative effect directly points finger towards accused No. 1, 7 and 8 for committing murder. The conspiracy which took place between accused No. 4 Swami, accused No. 3 Lalit and accused No. 1 Rajik, culminated into murder of both deceased Nalamwar and Bisne. Various links as discussed above in the chain of circumstances, which are conclusively proved by the prosecution, unerringly point to the guilt of accused No. 1, 3, 4, 7 and 8.
143. The prosecution has substantially established the motive behind the crime that accused No. 4 Swami was having longstanding litigation with deceased Nalamwar, as the later was not vacating tenanted premises, as well as filed several complaints. The prosecution has also established last seen theory that the deceased were last seen in the company of accused No. 1, 7 and 8 and thereafter dead bodies of both were recovered in the very next morning. The prosecution has established from the chemical analyzer's report that the clothes on the person of accused No. 1, 7 and 8 were having blood stains. The prosecution has established substantial link among accused No. 1, 7, 8, 3 and 4 through the evidence of Nodal Officers (P.W. 31, 33 to 37). The prosecution has also proved that there was conspiracy between accused No. 3 and 4 which is accomplished by accused No. 1, 7 and 8 by taking deceased Nalamwar from his house by deceitful means.
144. On careful assessment of entire material, we can safely note that the prosecution has proved that both deceased died of bullet injury caused by country made pistol, meaning thereby it was homicidal death. The weapon seized from accused No. 1 Rajik was used in the commission of crime which is duly established by the evidence of ballistic expert (P.W. 32). Bullets which-are recovered from brain matter of both deceased were examined and found that they were fired by the same weapon viz. Country made pistol (Article "AV"). It is also established that prior to the incident, accused No. 1 Rajik contacted deceased Nalamwar under the pretext of a case of land dispute. In pursuance of the conspiracy, which was hatched between accused Nos. 4 and 3, accused Nos. 1, 7 and 8 on the date of incident 5.9.2009 committed murder of deceased Nalamwar.
145. The facts and chain of circumstances firmly established by the prosecution leads to draw only conclusion of guilt against the accused. The facts established are consistent with the only hypothesis of guilt of accused, that is to say, they are not explainable or any other hypothesis, except that accused No. 1, 3, 4, 7 and 8 are responsible for the death of Advocate Nalamwar and Vijay Bisne.
146. Having held so, the last aspect which remain to be answered is about what offence has been committed by the accused on proved facts. It is amply established that both deceased died homicidal death due to bullet injury on their head. The nature of weapon and part of the body on which injuries were found, are the prime indicators to gather the intention of the accused. Both the deceased were done to death by firing bullets from close range by country made pistol. The said very act, conspicuously discloses that the accused very much carried intention to cause death or with a knowledge that their act would in all probabilities cause death of the victim. Therefore, the act of accused falls within 1st and 4th Clause of section 300 of the Indian Penal Code, which defines the offence of murder. Full proof plan hatched by accused No. 3 Lalit and accused No. 4 Swami, is duly proved by the prosecution. Thus, they being party to the criminal conspiracy to commit an offence punishable with death, they deserve punishment in the same manner, as if they had abetted such offence.' The prosecution has also proved the charge of abduction and abatement against accused No. 1 Rajik, accused No. 7 Sahebrao and accused No. 8 Mohan. So also the offence under Arms Act is proved against accused No. 1 Rajik.
147. In the result, we hold that the findings and conclusions recorded by the trial Court are based on sound and proper reasoning and the order and sentence of conviction deserves to be upheld by dismissing all the appeals. Hence, all the Criminal Appeals stand dismissed.
148. Muddemal property be dealt with as per the judgment and order of Trial Court, after appeal period is over.
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