maria monica susairaj sessions court judgement mumbai
TRANSCRIPT
Judgment -S.C.630-08 -1- Exh.341
Exh.341
BEFORE THE COURT OF SESSIONS FOR GR. MUMBAI.
SESSIONS CASE NO.630 OF 2008
State of Maharashra ](at the instance of DCB CID Bandra ]Unit IX, C.R. No.94/08)) ] ..Complainant v/s.
1. Maria Monica Susairaj ]aged 28 years, ]
Occupation – Nil, ] Residing at : 391/A, C Layout, ] Bannimantap, Hanumant Nagar, ] Mysore – 15. ] 2. Emile Jerome Joseph, ] Aged 26 years, Occupation : Nil, ] Residing at : 4527/A, 1st Cross, ] St. Mary Road, N.R. Mohallah, ] Mysore – 570 007. ] .. Accused.
Special PP Mr. R.V. Kini for the State.Advocate Mr. Sharif Shaikh with Rajesh S. Gupta for accused No.1.Advocate Mr. Wahab Khan for accused No.2.
Coram : His Honour The Special Judge & Additional Sessions Judge, Shri M.W.CHANDWANI.
(Court room No.32).
Date : 27 th , 28 th , 29 th 30 th June, 1 st July, 2011 . J U D G M E N T
(Dated 27 th ,28 th , 29 th ,30 th June, 1 st July, 2011)
1. The accused are chargesheeted for offence punishable
Judgment -S.C.630-08 -2- Exh.341
u/s. 302 and 201 of I.P.C. r/w 120B or in the alternative sec. 34 of I.P.C.
The accusations against the accused are of serious nature, in the sense
that on 652008, accused Nos. 1 and 2 hatched conspiracy to eliminate
Neeraj Amarnath Grover and pursuant to the said conspiracy, accused
no.1 called Neeraj Grover at his house, the accused No.2 flew to Mumbai
from Cochin and had been to house of the accused No.1. Both the
accused committed murder of Neeraj Grover and with the intention to
screen themselves from the legal punishment, the accused attempted to
cause disappearance of the evidence of murder, the accused chopped the
body of Neeraj Grover with the help of Chopper and put the mutilated
body into bag and burnt it at the outskirts of city, at Manor Wada.
2. It is the case of the prosecution that one Neeraj Amarnath
Grover was working in a creative team of Balaji Telefilm Ltd., which was
engaged in production of T.V. Serials. Neeraj Grover was residing at
Jyoti Apartment, Seven Bungalow, Andheri with his cousin brother. The
accused No.1 is Kannada actress and in the end of April, 2008, she
came to Mumbai for getting foothold in T.V. Serial. She got acquainted
with Neeraj Grover and with the help of Neeraj, accused No.1 gave CD
of her audition to Balaji Telefilm for getting role in serial 'Mahabharat'.
She was trying for role in T.V. Serial through Neeraj Grover. Accused
Judgment -S.C.630-08 -3- Exh.341
No.1 was not having place to stay and for some time she resided with
Neeraj. Their acquaintance turned into intimate relationship. On
652008, the accused No.1 took over flat No.201, Wing 'B' in Dhiraj
Solitare Chincholi Bunder Road, Malad (West), Mumbai on rent. It is
further case of the prosecution that till 652008, there was no
development in the matter of getting role in the T.V. Serial by accused
No.1. The accused No.1 was suspicious of Neeraj that whether he was
sincere in assisting to accused No.1 for getting the role in T.V. Serial or
he was bluffing with her. Therefore, she was having grudge against
Neeraj Grover. Accused No.1, out of grudge, hatched conspiracy with the
accused No.2, to eliminate Neeraj. Therefore, she called Neeraj to her
flat on 652008 by making call on his mobile. On 652008, at about
10.30 p.m. Neeraj Grover came to the house of the accused No.1 i.e. flat
No.201, Dhiraj Solitare building, Malad (West). The accused no. 1
talked with Accused No.2, on his mobile, who was at Cochin at that time,
and hatched conspiracy to eliminate Neeraj Grover. In furtherance of
their conspiracy, accused No.2 immediately flew to Mumbai and reached
flat No. 201, Dhiraj Solitare Building Malad (West) at about 7.30 a.m. on
752008. Both accused committed murder of Neeraj Grover in flat
No.201, Wing 'B' of Dhiraj Solitare building, Malad (West). It is further
Judgment -S.C.630-08 -4- Exh.341
case of the prosecution that to screen themselves, from legal
punishment, the accused attempted to destroy the evidence of murder of
Neeraj Grover. And for that end the accused No.1 purchased curtain, big
chopper (Art.23), sports bags and room freshner from Hypercity Mall.
The accused chopped the body of Neeraj Grover into pieces and put
mutilated body in the sport bags along with other articles having blood
stains. The accused No.1 borrowed Santro Car from Kiran Shriyan
(P.W.11). They put bags containing mutilated body of Neeraj in the car
and went to outskirts of the City i.e. at Manor Wada. While traveling to
Manor Wada, on the way, the accused No.2 purchased petrol from Vinod
Kumar Mishra (P.W.13), as well as lighter from Amarbahadur Yadav
(P.W.22). Accused burnt the sports bags containing mutilated body and
other articles by pouring petrol over them. It is further case of the
prosecution that the accused No.1 got the mattress covers of her house
changed, through Kamlesh Jain(P.W. 16), and also got the passage of flat
painted through Dhirajkumar Shukla (P.W.15), to conceal the blood
stains from the wall of flat No.201.
3. It is further case of prosecution that it was daily routine of
mother of Neeraj Grover to have talk with Neeraj Grover in the morning,
as well as, in the late evening, on 752008, there was no response to
Judgment -S.C.630-08 -5- Exh.341
the calls of Nilam Grover, the mother of Neeraj, which she made to the
mobile No.9967483634 of Neeraj. Thereafter, she made several attempts
to contact Neeraj on mobile, but there was no response. Ultimately, she
contacted Nishant Grover (P.W.33), the cousin brother of Neeraj Grover
and asked him whereabouts of Neeraj. Nishant Grover also tried to
contact Neeraj Grover on his mobile but he could not succeed. He
enquired with Nishant Lal (P.W.9), a friend of Neeraj and other friends,
but still could not get whereabouts of Neeraj. Nishant Lal (P.W.9)
inquired with accused No.1 regarding whereabouts of Neeraj. The
accused No.1 stated that Neeraj had left her place at 1.30 a.m. on
752008, leaving his mobile in her flat. Ultimately, it was decided by
Nishant Grover (P.W.33) and Nishant Lal (P.W.9) along with other friends
to lodge complaint at Malad Police station. On the say of friends of
Neeraj, Accused No.1 also accompanied them to Malad Police station
for lodging missing complaint. Nishant Grover (P.W. 33) lodged the
missing Complaint (Exh.138) with PSI Indap (P.W.34) at Malad Police
station vide Adult Missing Complaint No.47/08.
4. The statement of Nishant Lal and accused No.1 was also
recorded by PSI Shyam Ramchandra Indap (P.W.34). In between,
Amarnath Grover (P.W.1) flew to Mumbai for searching his son Neeraj.
Judgment -S.C.630-08 -6- Exh.341
On 952008, the accused No.1 was called in police station. Accused
No.1 handed over Nokia make mobile Model N95 of Neeraj Grover (Art.
45) to PSI Shyam Indap (P.W.34.), he in turn, handed over said mobile
(Art.45) to Nishant Grover (P.W.33) the cousin brother of Neeraj.
Thereafter PSI Indap (P.W.34) went on leave, therefore, the inquiry of
missing complaint was transferred to PSI Raghvendra Singh Abbaji
Shirsagar (P.W.44). He also called accused No.1 and recorded her
statement at (Exh.224 and 225). As there was no development in
missing complaint, therefore, Amarnath Grover (P.W.1) approached to
then Jt. Commissioner Rakesh Mariya(D.W.18). Rakesh Maria directed
crime Branch, Bandra Unit IX for parallel investigation in respect of
missing of Neeraj Grover.
5. Parallel inquiry of missing of Neeraj Grover was handed over
to Satish Rajaram Raorane (P.W.47) by Bandra Crime Branch Unit No.IX.
Till 2052008, whereabout of Neeraj Grover could not be found.
Therefore, on 2052008 , Amarnath Grover made a complaint to Malad
Police station with regard to kidnapping of Neeraj Grover. The
complaint was recorded by PSI Shirsagar (P.W.44) and on his complaint,
FIR (Exh.48) came to be lodged, vide Crime No.347/08 under sec. 363
and 368 of I.P.C. against unknown persons.
Judgment -S.C.630-08 -7- Exh.341
6. It is the case of prosecution that in the morning of 2152008,
during interrogation by Satish Rajaram Raorane (P.W.47), the accused
No. 1 confessed of her involvement in the murder of Neeraj Grover with
her fiance, the accused No.2. The accused No.1 was taken to Malad
Police station by PI Raorane. In Malad Police station accused No.1 was
arrested by PI Dhanaji Shivaji Nalawde vide arrest panchnama (Exh.60).
At that time, the accused No.1 was carrying two handsets of Nokia
mobile (Art.7 and 8) as well as a Bunch of two keys of flat No.201
(Art.9). Immediately thereafter accused No.1 made voluntary disclosure
to show the place where the mutilated body of Neeraj Grover was
disposed off, under panchnama (Exh.63A) before two panchas by name
Usha Venkat Ramalu (P.W.5) and Sumit Harish Bakrani. Accused no. 1
led police party and panchas to Manor Wada and thereafter to right
turn, and to a place near a pathway. Adjacent to path way, the half
burnt remains of human skeleton along with some flesh and on bones
were noticed. The police seized ribcage (Art.10); femur bone (Art.11);
and skull (Art.12); of human. Apart from these articles, police also
seized half burnt garland of beads ( Art.1); half burnt chain having
pendent of Gajmukh (art.2) ; half burnt piece of bag (Art. 13); partly
burnt piece of red cloth (Art.14); partly burnt gouge of cloth having red
Judgment -S.C.630-08 -8- Exh.341
lines (Art.15); partly burnt deodorant bottle (Exh.16); tin bottle
(Art.17) damaged tin bottle and its pieces ( Art.18); partly burnt metal
button and coins (Art.19colly.); under the panchnama (Exh.63B) from
the burnt spot shown by accused No.1. PI Nalawde also took the soil
mixed with ash (Art.20) from burnt place, as well as soil (Art.21) from
other than burnt place. The garland beads (Art.1) and chain, having
pendent of Gajmukh (Art.2) were identified by Amarnath Grover
(P.W.1), Nishant Lal (P.W.9) and Nishant Grover (P.W.33) as articles of
Neeraj Grover.
7. It is the further case of the prosecution that on 2252008, the
accused No.2 was brought to Mumbai and on the same day, he was
arrested by Malad Police Station. On 22.05.2008, the police along with
accused No.1, visited flat No.201. At the request of Malad Police
station, Expert from FSL also reached at flat No. 201, Dhiraj Solitare
Building Malad (W) and the spot was examined by expert of Forensic
Science Laboratory, Kalina. Blood stains were detected beneath (under)
the painting of outer kitchen wall, curtain of window, knob, and T.V.
Speaker of the bedroom. The said blood stains were collected, including
the blood on outer wall of kitchen by the FSL Experts and the police also
seized 3/4 Jeans, Tshirt, Pair of Shoes and Pillow cover from flat
Judgment -S.C.630-08 -9- Exh.341
No.201. Accordingly, spot panchnama was prepared in presence of
panchas including Ghanshyam Chottelal Yadav (P.W.14). On 2352008,
the blood sample of Amarnath Grover (P.W.1) and his wife Nilam Grover
was collected for DNA. Likewise, expert from FSL Kalina, visited Malad
Police Station. They separated femur bone (Art.11) and three teeth
including tooth (Art. 46) from the remains of skeleton for DNA Test,
which were found at Manor Wada. Femur bone( Art. 11) and teeth
were separately sealed.
8. On 2352008, the investigation of the case was transferred to
Malad Police station. Malad Police station registered the same offence by
separate crime No.94/08 of Crime Branch Bandra Unit. Custody of
both accused were also transferred to Crime Branch Bandra Unit No.IX.
It is the further case of prosecution that on 2452008, the accused
No.2, made a voluntary statement before panchas including Ravi Ramesh
Parab (P.W.7) under panchnama (Exh.72A) that he would show where
Chopper (Art.23) was concealed. Thereafter the accused No.2, led the
police party to Manor Wada, and 10 to 15 ft. away from the place
wherefrom remains of human skeleton were recovered, he took out
partly burnt chopper (Art.23), in presence of panchas, which was seized
under the panchnama (Exh.72B). On 2552008, the accused No.1 also
Judgment -S.C.630-08 -10- Exh.341
made voluntary statement under the panchnama (Exh.90A) before
panchas that she would show the car, which was used in the crime.
Thereafter the accused took police party to Four bungalow Andheri
(west) and showed Santro Car bearing Registration No.MHO4BQ9866,
which belonged to Kiran Shriyan. Three foot mats of rear seat, seat
covers of rear seats, dickey mat, and two sun protection sheets (Art.28)
of the said car (Art.28 ) were seized under the panchnama (Exh.90B),
in presence of panchas, including Mohad. Ayub Mehboob Khan (P.W.12).
PI Raorane (P.W.46) recorded the statements of Kiran Shriyan (P.W.11)
and Kamlesh Jain (P.W.16). During his statement, Kamlesh Jain
produced one note book (Art.39), containing address(Exh.98)of flat
No.201 Dhiraj Solitare, written by accused No.1. On 2652008, femur
bone (Art. 11), three teeth including tooth (Art. 46) were sent to FSL
Kalina for DNA test.
9. It is further case of prosecution that as accused No.1 intended
to give confessional statement before the Chief Metropolitan Magistrate,
therefore, on 2652008, she was produced before Addl. M.M. 9th court
Bandra. She was sent to judicial custody for a day and on 2752008,
she made a confessional statement before Ld. Addl. Metropolitan
Magistrate, Pankaj Jivanlal Shah (P.W.13), which was recorded at
Judgment -S.C.630-08 -11- Exh.341
(Exh.132 and Exh. 132A). The substance of confessional statement of
the accused No.1 is that Neeraj came to her flat on 6.5.2008. She
talked with accused no.2 on the mobile of Neeraj. Suddenly in next
morning, the accused No.2 came to her flat at 7.30 a.m. and he saw
Neeraj Grover. Accused No.2, gave a fist blow to Neeraj. Scuffle took
place between accused No.2 and Neeraj and thereafter accused No.2
took kitchen knife and stabbed Neeraj Grover. She tried to hold knife,
she got injury on her hand, Accused no. 2 pushed her and stabbed Neeraj
to death and thereafter, accused No.1 bought articles from Hypercity
Mall; then the accused No.2 cut the body of Neeraj Grover into pieces
and after borrowing car by accused No.1, they went to Manor Wada and
set fire to the sports bags containing mutilated body of Neeraj Grover.
10. On 2952008, PI Raorane sent the Articles recovered from the
spot shown by accused No.1, to FSL Kalikna for clinical and DNA test.
On 3052008, the blood stains articles (Art. 29 colly.), recovered by PI
Nalawade (P.W.45) from flat No.201, Dhiraj Solitare Building, Malad
(West), were sent to FSL Kalina for clinical and DNA Test. Likewise,
chopper (art.23) was also sent to FSL Kalina for clinical and DNA test.
On 3152008, mats, seat covers and sun protection sheets (Art.28 colly.)
the articles seized from Santro car No. MH04BQ9866, were sent to
Judgment -S.C.630-08 -12- Exh.341
FSL Kalina for clinical and DNA Test. On 162008, accused No.2 made
voluntary disclosure to show the weapon of assault, which was recorded
under the panchnama (Exh.81A) in presence of panchas including
Ranjit Surendra Raje(P.W.8). Thereafter accused No.2 led police party to
flat No.201, Wing B, Dhiraj Solitare Malad (West) and from water
drainage of dry balcony, he took out kitchen knife (Art.25), which was
seized under the panchnama (Exh.81B). On 262008, the blood sample
of accused No.1 and 2 were taken by Dr. Shivaji Narayan Daund (P.W.39)
for DNA test by filling consent Form of accused Nos. 1 and 2, (Exh.193
and 194), respectively. The blood of accused Nos. 1 and 2 was sent for
DNA Test by PI Raorane to FSL Kalina. After recording statements of
the witnesses, and collecting of reports of FSL Kalina, the chargesheet
(Exh.5) came to be filed before Chief Metropolitan Magistrate.
11. The ld. Chief Metropolitan Magistrate committed the case
to the Sessions court. Thereafter this case is assigned to this court. My
ld. Predecessor framed the charges for offence punishable u/s. 302, 201
r/w 120B or 34 of I.P.C., against the accused Nos. 1 and 2 vide Charge
(Exh.25). The accused Nos. 1 and 2 pleaded not guilty vide Exh.26 and
27, respectively and claimed to be tried.
12. The prosecution has examined almost 48 witnesses and
Judgment -S.C.630-08 -13- Exh.341
closed its case by filing precipe. After conclusion of evidence of the
prosecution witnesses, the statement of the accused Nos. 1 and 2 were
recorded at Ex.274 and 276 respectively. In support of her statement
u/s. 313 of Cr.P.C., accused No.1 also filed written statement (Exh.274
A). The defence of the accused No.1 and 2 is total denial and of alibi.
The accused have examine 19 witnesses in their defence.
13. According to the defence of accused No.1, she was only
knowing Neeraj Grover, but she never asked him to look role for her in
TV Serial. Accused No.1 took defence of alibi in the sense that on
652008, she was residing in the house of one Deepak and not in flat
No.201, 'B' Wing of Dhiraj Solitare building, Chincholi Bundar Road,
Malad (West). The accused No.1 claims that on 752008, she had been
to Inorbit Mall along with her sister Maria Veronica (D.W.3) to meet
accused No.2. She purchased articles, from other Mall and thereafter at
about 12 noon, she met accused No.2. After spending day with accused
No.2, she along with her sister and brother left for the house of Sharad, a
friend of her brother. In the night she was called by Malad Police station
and thereafter, police used to detain her frequently for hours, everyday
and from 1852008, she was illegally detained in crime branch Bandra
Unit No.9. According to the accused No.1, her confessional statement
Judgment -S.C.630-08 -14- Exh.341
was obtained under duress by police and under threat of detaining her
family members in custody. Accused No.2 also took defence of total
denial and defence of alibi in the sense that he never visited flat No.201
in Dhiraj Solitare building, Malad (W). According to him, on 652008, in
the night when he talked to accused No.1, she was in depression and was
asking him to come down to Mumbai to solve problem of her stay at
Mumbai . It was decided between them that they would meet at Inorbit
mall. He flew to Mumbai and on 752008, and at about 12 noon he
met accused No.1. They spent day together and in the evening, they
separated from each other. Accused No. 2 went to meet his uncle.
Thereafter accused No.2 stayed in one hotel at link road in the night of
752008. On 852008 accused No.2 went to meet his uncle, and he
flew to Cochin. To fortify their defence, accused Nos. 1 and 2 examined
following defence witnesses :
LIST OF DEFENCE WITNESSES EXAMINED BY ACCUSED
D.W.No.
Name of the defence witnesses
Purpose Examined by
D.W.2
Pradeep Jagannath Jagtap To produce the gate entry register Exh.285 of Byculla jail.
Accused No.1.
D.W.3
Maria Veronica Susairaj (sister of accused No.1)
To show her alibi. Accused No.1.
Judgment -S.C.630-08 -15- Exh.341
D.W.4
Shaikh Latif Gaffar (Sr. Manager of MidDay Newspaper
To produce & prove prove publication of news in newspapers Exh.300,301, & 302.
Accused No.1.
D.W.5
Vinod Kumar Memon (Chief Reporter of MidDay)
To prove publication of news column Exh.300A, 301A and 302A.
Accused No.1.
D.W.6
Jitendra Kumar Dey (Journalist.)
To prove publication of news column Exh.300B.
Accused No.1.
D.W.7
Sayyed Soshan Rizvi(reporter of MidDay)
To prove publication of news column Exh.301C)
Accused No.1.
D.W.8
Ketan Pravin Ranga (reported of MidDay)
To prove publication of news column Exh.300D, & Exh.301D).
Accused No.1.
D.W.9
Vinod Kumar Memon (Chief Reporter of MidDay)
To produce newspapers marked Exh.310.
Accused No.2
D.W.10
Dharmesh Hariram Thakkar
To prove CD(Exh. 330) Accused No.1
D.W.11
Nilesh Balkrishna Dave to prove CD(Exh.330) containing R.K.B.
Accused No.1
D.W.12
Sunil Krishnaji Damle ( Rtr. Commander in Chief Southern Navel Command )
To prove official record Accused No.2
D.W.13
Sanjay Jagdish Chandra Sharma (Navy officer)
To prove official record.
Accused No.2
D.W.14
Deepak Jaidevsingh Malik To dispute TI parade dated 572008 and 762008
Accused No.2
D.W.15
Ashish Shahu Raorane (photo journalist Mid
To produce Exh.310A photograph of news
Accused No.2
Judgment -S.C.630-08 -16- Exh.341
Day) column.
D.W. 16
Manish Naresh Thakur To dispute TI Parade dated 572008 and 762008.
Accused No.2.
D.W.17
Rajiv Kanwar Bajaj(TV Journalist)
To prove R.K.B. show Accused No.1.
D.W.18
Rakesh Harikrishna Maria (then Jt. Commissioner of police)
To prove press conference held by him on 2582008.
Accused No.1.
D.W.19
Naga Bhushan Niranjanachar (Naval Provost Marshal Lt.)
To produce document of INS Venduruthy Exh.336 colly.
Accused No.2
14. Having heard ld. Special APP Mr. R.V. Kini for the State, as well
as Advocate Sheriff Shaikh for accused No.1 and Advocate Wahab Khan
for accused No.2, and after going through the material available on
record, the following points arise for my determination, to which, I have
answered against each of them for the reasons to be followed
hereinafter:
Points for determination:
Sr. No.
Points Findings
1. Whether the prosecution proves that remains of human skeleton found at Manor Wada is of Neeraj Grover ? Yes.
2. Whether the prosecution proves that Neeraj Grover met with homicidal death ?
Yes.
Judgment -S.C.630-08 -17- Exh.341
3. Whether the prosecution proves that on 6.5.2008, the accused hatched criminal conspiracy to commit murder of Neeraj Grover ?
No.
4. Whether the prosecution proves that on 752008, between 7.30 a.m. to 8 a.m. in flat No.201, 'B' Wing, Chincholi Bunder Road, Malad (W), Mumbai, in furtherance of criminal conspiracy, the accused Nos. 1 and 2, committed murder by intentionally or knowingly causing death of Neeraj Grover and thereby committed offence punishable u/s. 302 r/w 120B or 34 of I.P. Code?
Offence u/s. 304 (I) is proved against accused No.1 only.
5. Whether the prosecution proves that on 752008, in flat No.201, BWing, Chincholi Bunder Road, Malad (W), Mumbai, in furtherance of their common intention, knowing or having reason to belive that offence of murder has been committed, caused evidence of said offence to disappear by making pieces of the corpus and burning it with intention of screening themselves from legal punishable u/s. 201, r/w 34 of I. P. Code ?
Yes. However, the offence u/s. 304(I)is proved, hence, accused are convicted u/s.201 (II) of I.P.C.
6. What offence, if any, are proved against the accused ?
As per final order.
R E A S O N S
15. At the outset, let me state that there is no ocular evidence of eye
witness to the alleged crime, who had seen the accused while
Judgment -S.C.630-08 -18- Exh.341
committing actual offence as alleged. The entire case of the prosecution
rests on circumstantial evidence. To prove the offence, incriminating
circumstances against the accused, the prosecution has examined the
following prosecution witnesses:
P.W No.
Name of Witness Document brought on record Article brought on record.
1 AMARNATH RAMDAS GROVAR (father of deceased )
48 F.I.R. dtd. 20/5/08(complaint) 1The garlands of Beads(like chain)2 Chain of decease having pendant of Gajmukh in burnt condition
2 Mrs. MAURI PRAJAPATI(neighbour of Flat no.203)
Occupant of flat No.203, opposite to flat No.201.
3 SANDESH NANDKUMAR SHIRKE (estate agent)
55Original report dtd. 2/5/09 from Police Stn. explanation to handwriting expert opinion56Leave and License agreement of Maria flat58 Admitted panchnama dt. 22.5.08
4 SANDHYA ASHOK NAZARE (Panch) (arrest panchnama )
60 panchnama dt. 21.5.08, 61 7 photographs with report.
7 two handset of mobile, Nokia made,Modle No.N80 8 Nokia make mobile phone., 9 two keys of flat of accused no.1.
5 Mrs. Usha Venkat Ramlu (Panch)
63A, memorandum panchnama63B panchnama 64 panchnama dt. 2350865 report @ true copies of FIR C.R.No.25009
10 – piece of burnt bone,11 – rib cage,12 – skull 13 – burnt piece of bag14 burnt piece of red cloth, partly burnt gouge of cloth having red lines.
Judgment -S.C.630-08 -19- Exh.341
15 – damaged glass perfumed bottle,16 tin bottle(damaged17 tin bottle in damaged condition18 pieces of bottle,19 colly – envelopes having signatures of panchas.20 packet containing soil21 – packet containing soil22 colly. 7 photos
6 Kundan Ravindra Zha (security guard)
7 Ravi Ramesh Parab (recovery chopper)
72A, memorandum panchnama dt. 24508, 72B, latter panchnama dt 24509
23 big knife (chopper with sawteeth) 24 plastic wrapper of article 23.
8 Ranjit Surendra Raje (recovery knife)
81A, panchnama (memorandum dt. 1608)81B panchnama
25 knife 26wrapper @ label of art. 25.
9 Nishant Nirmalkumar Lal (relation between accused and deceased)
10 Satishkumar Gayaprasad Singh
84 report (4 sealed envelp. along with report of org. statement of 4 witns. sealed envelope i.e. statement of P.W.10
11 Kiran Shriyan (choreographer )(Santro car)
88 – xerox copy of R.C. Book for the sake of identification.
12 Mohd. Ayub Mehboob khan 90A Panchnama dtd.25/5/0590B Recovery panchnamadtd. 25/5/05
27colly3 wrappers28colly Rubber mat, Rexine seat covers @ sun protection sheets
13 Vinodkumar Ramashankar Mishra (Petrol Pump)
14 Ghanshyam Chottelal Yadav(Spot panchnama)
94 panchnama dt. 22.5.08 29 colly, 5 small packets containing samples of scrapings30 one packet and
Judgment -S.C.630-08 -20- Exh.341
label31 one pillow cover32 label33 jeans pant34 – wrapper @ label35collyone pair of shoes36wrapper @ label37one T Shirt38wrapper @ label
15 Dheeraj Kumar A. Shukla(painter)
16 Kamlesh Premchand Jain(mattress)
98entry in writing by accd.no.1(Red colour book)
39 Order book(Red colour note book)
17 Dr. Baban Shripati Shinde(exmine Accd. No.1 on 13/5/08)
100Certificate of Medical examination dtd. 13/5/08101forwarding letter from Malad P.Stn. dtd. 13/5/08 in the cross exam. of behalf of Accd.No.1
18 Shridhar M.Patil (Doctor) 103Opinion letter of Dr. Gaud104Original letter dtd. with signatures of Dr.Gaud
10 Piece of burnt bone23Big knife(chopper) with sawteeth
19 Vivek Jotybhushan Tiwari(Hypercity Mall)
40copy of the receipt of HDFC Bank on Red colour note book41copy of the printout of billing system dtd. 26/5/0842Debit card of HSBC
20 Vaishali More(Hypercity Mall)
110collyComputer copy of Hypercity Mall bills dtd.7/5/08111Statement dtd.9/7/08
21 Bharat Rajendar Bhagwaniya(Hypercity Mall)
43 collyknife@ card board
22 Amarbahadur Zingriram Yadav(Wada RoadPan Shop)
23 Sharad Shankar Vichare (SEO)
Judgment -S.C.630-08 -21- Exh.341
24 Mrs.P.A. Umadevi(Air India)
25 Sumit Anup Arora (Script Writer)Friend
26 Vasant Sureshkumar (Lieutenant of Navy Cochin)friend No.2
27 Ajay Shyam Pande(Lieutenant of Navy)frined (credit card)
28 Commander R. Rajiv (Cochin)
123 Letter dtd.9/5/08124Statement of Lt. Vishal Singh125W/st. given by Accd.No.2126Questionery of Accd.No.2127Finding dtd. 16/5/08
29 Divyaprakash Santoshkumar Shah(Adjoindig Building)
30 Pankaj Jivanwanlal Shah ( CMM)Confessional Statement
132Part No.1 of Confessional Statement of Accd.No.1 u/s 164 of Cr.p.c.132A
31 Kedar Ashok ChoubleLegal Advisor Balaji Telifilms
44CD
32 Roshan Harishchandra Pawar(Power of Attorneyowner of flat No.201)
33 Nishant Surendra Grover 138Missing complaint dtd. 8/5/08 45Nokia phone N95 of deceased Neeraj Grover
34 Shyam Ramchandra Ingap 141xerox copy of entry in station diary at page 114 at Sr. No.4/8 142Page No.156 and 157 of station diary entry at Sr. 22 dt.9/5/08
35 Shri Lade (Asst. Chemical Analyser)
146Letter from Malad P.Stn.of Forensic Lab, Santacruz,146ALetter (Original office letter produced by P.P.bearing acknowledgment dtd. 23/5/08147Original requisition letter dtd. 26/5/08147AForwarding letter dtd. 26/5/08148Report/letter dtd. 26/4/05(D.N.A. report)
28A, 29A colly, 46, 46A,
Judgment -S.C.630-08 -22- Exh.341
148A149Report (D.N.A) dtd. 26/6/08150Report dtd. 29/5/08(Requisition Letter)150A151Report(Original requisition letter)dtd. 30/5/08151AOffice copy of requisition letter 152Report dtd. 26/6/08153Original requisition letter dt.30/5/08153A Office copy of requisition letter dtd. 30/5/08154Original requisition letter of DCB CID dtd. 2/6/08154A Office copy of requisition letter dtd. 2/6/08155 Requisition letter dtd. 26/6/08156Original requisition letter of DCB CID dtd. 31/5/08156A Office copy of requisition letter dtd. 31/5/08157 Report dtd. 26/6/08158 Report dtd. 26/6/08159Orig requisition letter of DCB CID dtd. 2/6/08159AOffice copy of requisition letter dtd.31/5/08160 Report dtd. 26/6/08 163 Identification form of Neelam and Amarnath193 Identification form of Accd.No.1194 Identification form of Accd. No.2
36 Rajendra Ramchandra Mavle
165 Report dtd. 21/7/08(O.W.14514/08)166 Report dtd. 21/7/08(O.W.14509/08)167 Report dtd. 21/7/08(O.W.14511/08)168Report dtd. 21/7/08(O.W,14516/08)169Requisition letter of DCB CID dtd. 10/7/08170Report dtd. 21/7/08 (O.W. No.14576/08)
Judgment -S.C.630-08 -23- Exh.341
170A
37 Mrs. S.A. Shinde(Asst. Chemical Analyser)
176Report of forensic Lab dtd. 21/7/08177 Report of Forensic Lab O.W,No.14508178Report from Forensic Lab dtd. 17/6/08 O.W.No.14513/08178ACovering letter from Forensic Lab with signature of Shri Talpe (Office copy179 Report from Forensic Lab dtd. 30/6/08 O.W,No.12766
48Plastic Can
38 Dr. Prasad Gundupanth Kulkarni
182A, 182BRequisition letter @ receipt of Grant Medical college dtd. 27.5.08182COriginal letter from DCB CID183 Report dtd. 13/8/08183A to 183C2 labels dtd. 23/5/08 & 31/5/08 & outer label of the parcel
39 Shivaji Narayan Daund 185Requisition letter dtd. 23/5/08 from Malad P. Station186Requisition letter for taking blood sample of accused
40 Dilip Pralhad Ahiwale 189collyLetter O.W.No.3351/08dtd/20/8/08 Crime Branch190Opinion dtd. 29/4/09(B.B.No.315/08191Colly 12 Statements
41 Rajesh Sampatrao Gaikwad 196Office copy of requisition letter dtd. 21/7/08197 collyCovering letter @call details report@Certificate dtd. 1/8/08198Letter dtd. 11/12/08199collyCall details @ letter dtd. 12/12/08200Appln.form of subscriber for Identity and addressw purpose(scan copy)
42 Changdeo Haribhao Godse 202Letter dtd. 21/7/08 of Dy.Commissioner to call, call details report203Covering letter dtd.
Judgment -S.C.630-08 -24- Exh.341
31/7/08(call detail report of mobile)204Certificate dtd. 31/7/08205Letter dtd. 31/7/08205ACall details of mobile No.9920825923206Letter dtd. 31/7/08206AMobile No. 9819430611207Letter dtd. 31/7/08207AMobile No.9920944083208Requisition letter from crime branch209CollyCall details with covering letter
43 Sunil Tiwari (Nodal officer of Bharti Airtel co.)
215Request letter dtd. 21/7/08(9967483634 by office of Dy.Commisioner)216Covering letter217Certificate218collyCall details of mobile No.9967483634219Call details of Mobile No.9967483634220Call detail record221Office copy of letter dtd. 26/9/08222Office copy of letter of Yogesh dtd. 1/12/08
44 Raghvendra Singh Abaji Kshirsagar
Exh.225, 226 statements of accused No.1.
45 Dhanaji Shivaji Nalwade 22.colly,58.colly,63.B,64,94,227,228,229,230 to 233, 235
1,2,3,4,5,6,7,8,9,10 to 18 7A,8A,9A,20,21,20A, 21A,29.coll29Acolly,31 to 38,47
46 Shantanu Vijay Agarwal
47 Satish Rajaram Raorane 232Office order dtd. 22/5/08239Letter from Sr. P.I. dtd. 23/5/08(O.W.608/08)241Letter address to M.M.Court Bandra dtd.26/5/08242AStatement of Mangesh Hedulkar dtd. 2/6/08
242B Statement panchnama dtd. 2/6/08243 Call details of Mobile No.
1The garland of Beads(broken condition) like Chain2Chain of decease having pendant of Gajmukh in burn condition10Piece of burnt bone11Ribcage
Judgment -S.C.630-08 -25- Exh.341
9920925439 12Skull13Burnt piece of bag14Burnt piece of Red cloth, partly burnt gauge of cloth having red lines15Damage glass perfume bottle16Tin bottle(damaged)17Tin bottle in damage condition 18piece of bottle part of Art.47
48 Vikas Narayan Phulkar
16. Apart from the testimony of prosecution witnesses, the
prosecution is also relying on various documents and articles such as
missing Complaint (Exh.138), FIR (Exh.48), DNA reports, Chemical
Analyser's report, Memorandum and recovery panchnamas,
Memorandums of test identification (Exh. 34 to 37), bills of Hypercity
Mall (Exh.110 colly.), Written statement and questionery to accused
No.2 at Naval Base Cochin (Exhs.125, 126) identification form of
accused (Exh.193 and 194) (call details report) of mobile subscriber of
accused as well as Neeraj Grover. Besides this, prosecution is also relying
on various muddemal – articles such as, garland of beads (Article 1),
chain having Gajmukh pendent (Art.2), bunch of keys of flat No.201,
(Art.9), skull article, femur bone and pieces of rib cage article 10, 11
Judgment -S.C.630-08 -26- Exh.341
and 12 respectively, burnt piece of bag (Art. 13), partly burnt cloth
having red lines (Art. 14), burnt gouge of cloth (Article 15), deodrunt
bottle (Article 16), tin bottle (Article 17), damaged tin bottle with its
pieces (Art.18), partly burnt metal button (Art.19), soil with ash
(Art.20), soil sample (Art.21), 7 photographs (Art. 22 colly.), Big knife
(Chopper) with sawteeth (Art. 23), Plastic wrapper of (Art. 23), knife
(Art. 25), rubber mat, rexine seat covers @ sun protection sheets art.28
colly, two seat covers part of (Art. 28 colly.) five small packets
containing samples and scrapings (Art. 29 colly.) one sample packet of
scraping wall paint (Art. 29A), one pillow cover (Art.31), jeans pant
(Art.33), one pair of shoes (Art.35 colly.), one T shirt (Art.37), Order
book (Art.39), copy of receipt of HDFC (Art.40), copy of receipt of Hyper
City Mall (Art. 41), Debit card of HSBC (Art. 42), knife along with card
board (Art.43 colly.) CD (Art. 44), Nokia phone N95 (Art. 45), Human
teeth (Art. 46 colly.) Duster, partly burnt plastic pieces, chain lock (Art.
47 colly.) plastic Can (Art. 48), Station diaries (Art.49 and 50).
17. Before proceeding to deal with points for determination,
let me state the facts, which are undisputedly proved by the prosecution.
18. Neeraj Amarnath Grover was working as Asstt. Creative
Head, Balaji Telefilm and thereafter 'Synergy' a Company engaged in
Judgment -S.C.630-08 -27- Exh.341
production of TV serials. He was biological son of Amarnath Grover
(P.W.1) and Nilam Grover. Neeraj was residing at four bungalow
Andheri with his cousin Nishant Grover (P.W.33). In the last week of
April, 2008, Accused No.1 came to Mumbai, to work as a actress and
to get foothold in entertainment industry. The accused No.2 was fiance
of accused No.1, both intended to marry each other. The accused no.1
was trying to get role in TV serial. She gave CD (Art.44) of her audition
for getting role in 'Mahabharat' Serial to Balaji Telefilm. In the night of
652008, accused No.1 and 2 talked with each other on their mobile No.
9920944083 and 9388920779. Accused No.2 flew to Mumbai by
flight scheduled to fly at 3.55 a.m. On 752008, Accused No.2 was in
Mumbai on 752008. On intervening night of 752008 and 852008,
Nishant Grover (P.W.33) Lal lodged missing complaint (Exh.138) with
Malad police station. The accused No.2 was brought to Mumbai on
2252008, and was arrested by Malad P. S. On 2352008, the
investigation of the case was transferred to Crime Branch Bandra Unit
No.IX. The confession statement (Exh.132A) of accused No.1 was
recorded by Pankaj Shah (P.W.30). The blood sample of the accused No.1
and 2 were taken on 2.6.2008.
19. Before proceed to deal with the points for determination, let
Judgment -S.C.630-08 -28- Exh.341
us decide some points/objection, which were raised during recording of
evidence and were kept to be decided at the time of final disposal of the
case. The prosecution filed statements of accused No.1 at (Exh.225, 226
and 227). According to the prosecution, these statements of accused
No.1 were recorded prior to lodging FIR and prior to detection of murder
of Neeraj Grover. Therefore, these statements are not hit by section 162
of Cr.P.C. to which, the defence objected. It appears that the
prosecution is relying on these statements of accused No.1 to show the
conduct of the accused No.1. There is no dispute that subsequent
conduct of accused is a relevant fact and is admissible u/s.8 of Indian
Evidence Act. Let me reproduce Sec.8 of the Evidence Act.
Motive, preparation and previous or subsequent conduct “Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to such suit or proceeding, or any reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is subject of any proceedings, is relevant, if such conduct influences or influenced by any act in issue or relevant fact, and whether it was previous or subsequent thereto.”Explanation 1 The word “conduct” in this section does not include statements unless those statements accompany and explain any acts other than statements, but this explanation is not to
Judgment -S.C.630-08 -29- Exh.341
affect the relevancy of statement under any other section of this Act.
Explanation 2 When the conduct of any person is relevant any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Therefore, the explanation (1) to section 8 says that conduct does not
include statements unless the statements accompany and explain acts
other than statements. So, what is admissible under this section is act
accompanied by statement and not the statement itself. In the present
case, the prosecution contending that conduct of accused itself is
mentioned in the statements Exh.225, 226 and 227 and not
accompanied by any act other than statements, therefore, I rule that the
statements of accused No.1 Exh.225, 226 and 227 are not admissible in
evidence. However, to avoid the confusion, I may state that the evidence
of prosecution witnesses in respect of conduct of the accused after
752008 , mentioned in the statements is admissible. So, the statements
of the accused No.1, itself are not admissible but the evidence of the
prosecution witnesses to show same conduct which is mentioned in the
statement of accused is admissible. Another point which was left for
deciding at the time of final hearing was admissibility of a question to
witness Pankaj Shah (P.W.30). However, in view of answer given by
Judgment -S.C.630-08 -30- Exh.341
Pankaj Shah (P.W. 30), nothing remains to decide.
Now let us turn to the points for determination.
Point No.1.
20. It is alleged by the prosecution that Neeraj Amarnath
Grover is murdered by accused accused Nos. 1 and 2 and thereafter,
they disposed of mutilated body of Neeraj Grover by setting fire in
outskirt of city I,e. Manor Wada. Admittedly in this case, the remains of
human skeleton produced by the prosecution before the court is not
identifiable perse i.e. In other words, mere seeing of remains of skeleton
which is produced by the prosecution, it is not possible to hold, to which
person they belong. To prove the corpus of Neeraj Grover, the
prosecution is relying on version of Amarnath Grover (P.W.1) and
Nishant Lal (P.W.9). Apart from the testimony of these witnesses, the
prosecution is also relying on scientific test i.e. finger prints of DNA and
for that purpose prosecution has examined Lade Chemical Analyser
(P.W.35). Let us see whether the prosecution could prove the corpus of
Neeraj Grover.
21. It has been brought on record through Amarnath Ramdas
Grover (P.W.1) that he had been called to identify the articles which
were recovered from Manor Wada. This witness has identified beads
Judgment -S.C.630-08 -31- Exh.341
garland (Art.1) and burnt chain with Gajmukh pendent (Art.2) .
According to this witness, these articles belonged to Neeraj Grover. It
has also been deposed by this witness that he stayed with his son, Neeraj,
for one week at Mumbai, at the time of Holi Festival, therefore, he could
identify beads garland (Art.1) and chain with Gajmukh Pendent (Art.2).
22. Likewise, it has also been brought on record by the
prosecution through Nishant Lal (P.W.9) that beads garland (Art.1) and
chain with Gajmukh Pendent (Art.2) were of Neeraj Grover.
23. It is submitted on behalf of the ld. APP that Amarnath
Grover (P.W. 1) is father of the Neeraj and Nishant Lal (P.W.9) is friend
of Neeraj respectively and they are the best persons to identify the
articles belonging to Neeraj. As against this, the ld. advocate Sharif
Shaikh on behalf of the accused No.1 submitted that there are
contradictions between the version of Amarnath Grover (P.W.1) and
Nishant Lal (P.W.9) regarding their presence at the time of identification
of articles in Malad Police on 2152008. Ld. advocate for the accused
No.1 took me to the crossexamination of (P.W.1), wherein he has
deposed that when he had been to Police station for identification of
articles, apart from Nishant Lal, there was no other person present in
Malad police station, and whereas, (P.W.9) Nishant Lal claims that he
Judgment -S.C.630-08 -32- Exh.341
also identified the articles no. 1 and 2 alongwith Amarnath Grover. So
according to Ld. Adv. for accused no.1, this is contradiction. Therefore,
taking help of this contradiction, ld. advocate for the accused No.1
submitted before me that this contradiction goes to show that they never
visited Malad Police Station for identification of articles.
24. It is not in dispute that Amarnath Grover is father of Neeraj
Grover. When he has specifically deposed that the beads garland
(Art.1) and chain with Gajmukh Pendent (Art.2), belonged to Neeraj
Grove. I am unable to digest the arguments of ld. advocate for the
accused No.1 that these articles have not been proved to be of Neeraj
Grover for the simple reason that if these articles were not of Neeraj
Grover, then for a father, it is happiest moment in the world, with hope
that his son is alive, though lost. Therefore, there is no reason for
Amarnath Grover (P.W.1)to depose falsely that beads garland (Art.1) and
chain with Gajmukh Pendent (Art.2) belongs to Neeraj, which is
corroborated by (P.W.9).
25. Let us turn to scientific test on which the prosecutions is
heavily relying for identification of corpus. Shrikant Hanmant Lade
(P.W.35), Asst. Chemical Analyser of FS Kalina, who has deposed that he
is working as Asst. Chemical Analyser from 1511990. He had
Judgment -S.C.630-08 -33- Exh.341
conducted and reported 600 to 700 DNA tests. He has been trained at
Centre for DNA finger Prints and Diagnosis at Hydrabad. He had also
attended workshop of DNA Finger Prints organized by FSL, New Delhi.
From further deposition of this witness, it goes to show that he has
attended various conferences and he has been awarded by various
institutions. Before proceeding to deal with his evidence, let us see
whether DNA test is admissible in evidence. Section 45 of the Evidence
Act contemplates as under:
“ Opinions of Experts – when the court has to form an
opinion, upon a point of foreign law, or of science or
art, or as to identity of handwriting, or finger impression,
the opinion upon that point of persons specially skilled
in such foreign law, science or art, or in questions as to
identity of handwriting [or finger impressions] are levant
facts.”
26. As per prosecution case, the femur bone and three teeth
from the remains of the skeleton were sent to DNA Test to FSL Kalina for
identification of skeleton. Though it is disputed by the defence that the
remains of skeleton were recovered from Manor on 2152008, which I
will deal separately, but fact remains that the femur bone skull & ribcage
Judgment -S.C.630-08 -34- Exh.341
found by the police during investigation. However, it appears that
during maceration procedure, the ribcage turned into pieces. Mr. Lade
(P.W.35) has deposed about DNA Test. According to him, DNA is genetic
material which is present in nucleus of each and every nucleated cell of
every individual. In nucleus of DNA of a person, there used to be one
copy of DNA from mother and one copy of DNA from father; DNA
remains in different types of body cell like bone cell, epithelial cell,
sperm cell, buccal cell, epithelial cell i.e. cell from cheek nasal, hair with
or without bone, sweat cell, tooth pulp cell. It is further deposed by this
witness that from the profile of DNA, we get discrimination power of a
person which is discriminable in 10 of trillion. That means from the
DNA profile, we get unique DNA of a person. The exception to
uniqueness of DNA is in case of mono zygotic twins which is found
rarely.
27. So, according to this witness, finger print of DNA is unique
to the word Population. It has been brought on record that this witness
has done DNA profile of femur bone (Art.11) and teeth which were
sent to FSL Kalina for DNA Test. It has been further brought on record
that this witness has done DNA profile of blood sample of Amarnath
Grover (P.W.1) and his wife Nilam Grover. This witness has specifically
Judgment -S.C.630-08 -35- Exh.341
deposed that the result of DNA profile of femur bone as well as teeth
were one and the same, which conclude that the femur bone and
tooth( Art. 46) is of one and same person. This witness has also
compared the DAN profile of blood of Amarnath Grover and Nilam
Grover with DNA profile of femur bone (Art.11) and teeth and he
concluded that all 15 STR locus of profile of DNA of Amarnath Grover
and Nilam Grover were matching with 15 STR locus of DNA of femur
bone (Art.11) and teeth. This witness opined vide report (Exh.148), that
Amarnath Grover and Nilam Grover are concluded to be the biological
parent of Femur bone (Art.11) and teeth (Art.46). I have also gone
through report (Exh.148). Bare perusal of this report goes to show that
in all 15 STR locus of femur bone, (Art.11) and teeth (Art.46), there is
presence of one allele of Nilam Grover and other allele of Amarnath
Grover.
28. At this stage, it is submitted on behalf of Ld. advocate for the
accused that it has not been proved that the blood sample is of
Amarnath Grover and Nilam Grover. Both defence advocates vehemently
submitted that the prosecution has not proved the consent Form
Identification Form of Amarnath Grover and Nilam Grover (Exh.163
colly). It is the submission of the ld. advocate for the defence that Dr.
Judgment -S.C.630-08 -36- Exh.341
Shivaji Narayan Daund (P.W. 39) has not been shown the identification
Form (Exh.163), which goes to create doubt whether the blood which
was sent to FSL Kalina, is of Amarnath Grover and Nilam Grover. In this
respect, it is pertinent to note that Amarnath Grover (P.W.1) in his
deposition has deposed, that his blood sample was taken for DNA Test,
which is not disputed by defence in his crossexamination. Likewise,
there is deposition of Shivaji Narayan Daund(P.W.39), who has also
deposed that he took blood samples of Amarnath Grover and Nilam
Grover. If that is so, then I do not find any substance in the arguments
of the ld. advocate for the defence that the blood sample of Amarnath
Grover and Neelam grover is not established. Rather identification form
carries seal impression of Police.
29. Taking into consideration version of Amarnath Grover
(P.W.1), Nishant Lal (P.W.9) and Nishant Grover (P.W.33) and Asst.
Chemical Analyer Mr. Lade (P.W.35) coupled with the fact that till today,
nobody knows the whereabouts of Neeraj Grover and as stated above,
why a father will falsely identify the articles of his son to decide
whether he is alive, coupled with scientific test also proves that the
remains of skeleton i.e. femur bone and tooth is of Neeraj Grover and
prosecution is able to establish that the corpus i.e. the remains of
Judgment -S.C.630-08 -37- Exh.341
skeleton is of Neeraj Grover. Hence, I answer this point in affirmative. As
such, I have held that the remains which is produced by the prosecution
is of Neeraj Grover. Therefore, nothing remains to say that Neeraj is still
alive and it can be safely said that Neeraj Grover is no more in this
world. Hereinafter, Neeraj will be referred as “deceased” hereinafter.
Point No. 2, 3 , 4 and 5:
30. As point Nos. 2 , 3, 4 and 5 are inter connected, and looking
to the evidence adduced by the prosecution, as well as the defence of
the accused, it will be convenient to discuss point Nos. 2,3,4 and 5
together.
31. The prosecution has come with the case that the accused
person in pursuance to criminal conspiracy committed murder of Neeraj
Grover on 752008, in flat No.201, 'B' Wing, Dhiraj Solitare Chincholi
Bunder, Malad (W) and in furtherance of their criminal conspiracy, the
accused disposed of the mutilated body of Neeraj Grover at the
outskirts of City and therefore, the accused have committed offence
punishable u/s. 302, 201 r/w sec. 120B or 34 of I.P.C. There is no direct
or ocular evidence of witness, who had seen the accused while
committing murder or while disposing of the body of deceased Neeraj
Grover. The entire case of prosecution solely depends on circumstantial
Judgment -S.C.630-08 -38- Exh.341
evidence. The prosecution is relying on various circumstances such as,
relation of the deceased with accused No.1; concern of accused No.1
with flat No.201; visit of deceased Neeraj Grover to flat No.201 on
652008; sudden visit of accused No.2 to Mumbai, particularly to flat
No.201, and various recoveries, which according to the prosecution were
made either at the instance of accused No.1 or accused No.2.
32. Before analyzing factual aspect of the case, let me state that
for a crime to be proved, it is not necessary that the crime must been
seen to have been committed and must, in all circumstances be proved
by direct ocular evidence by examining before the court, those persons
who had seen its commission. The offence can be proved by
circumstantial evidence also. The principle fact of or factum probandum
may be proved indirectly by the means of certain inference drawn from
the factum probans, that is, evidentiary facts. To put it differently,
circumstantial evidence is not direct to the point in issue, but consists of
evidence of various other facts, which are so closely associated with the
facts in issue, which taken together form a chain of circumstances, from
which the existence of principal facts can be legally inferred or
presumed.
33. It has been laid down by the Apex Court in series of the
Judgment -S.C.630-08 -39- Exh.341
judgments that where a case rests squarely on circumstantial evidence,
the inference of guilt of the accused can be justified, only when all
incriminating facts and circumstances are found to be incompatible with
the innocence of accused or the guilt of any other person. The
circumstances from which an inference as to the guilt of the accused is
drawn, have to be proved beyond reasonable doubt and have to be
shown to be closely connected with the principal fact sought to be
inferred from those circumstances.
34. In the case of Padala Vira Reddy v/s. State of Andhra
Pradesh reported in 1991, S.C.C. Cri. 407, the apex court laid down
that where a case rests upon circumstantial evidence, such evidence must
satisfy the following test:
1. The circumstances from which an inference of a guilt is sought to
be drawn must be cogently and firmly established;
2. Those circumstances should be definite tendency unerringly
pointing towards guilt of accused;
3. The circumstances, taken collectively, should form a chain so
complete that there is no escape from the conclusion that in all
human probability the crime was committed by accused and non else;
4. The circumstantial evidence in order to sustain conviction, must
Judgment -S.C.630-08 -40- Exh.341
be complete and incapable of explanation of any other hypothesis than
that of guilt of the accused and such evidence should not be only
consistent with the guilt of the accused but should be inconsistent with
his innocence.
35. Keeping the aforesaid principals in mind, let us see whether
the prosecution could prove the case as alleged. As prosecution is
relying on various circumstances, therefore, for convenience, I will
discuss those circumstances caption wise .
● Relation between accused No.1 and deceased Neeraj:
36. For proving motive as well as conspiracy, rather murder of
Neeraj Grover by the accused persons, the prosecution has come with the
case that there was relation between accused No.1 and deceased
Neeraj. According to the prosecution, the relation between accused No.1
and Neeraj were intimate. It appears from crossexamination; statement
of accused No.1 u/s. 313 of Cr.P.C.; and submissions of ld. advocate for
the accused No.1; that accused No.1 met Neeraj only once and the
accused No.1 disputes even well acquaintance with deceased Neeraj. For
proving the intimate relationship, between the deceased and accused
No.1, the prosecution is relying on version of Nishant Lal (P.W.9) and
Shantanu Agarwal (P.W.45) .
Judgment -S.C.630-08 -41- Exh.341
37. It is not in dispute that Neeraj was engaged in the firm or
company, which was producing the TV serials. By version of Amarnath
Grover (P.W. No.1) father of deceased, Nishant Lal (P.W. 9), Nishant
Grover (P.W. No. 33) and Shantanu Agarwal (P.W.46) it has been brought
on record that Neeraj was working in a Creative team of Balaji Telefilm
Ltd. and thereafter with “Synergy Altab”.
38. The version of Nishant lal (P.W.9) goes to show that he was
knowing Neeraj Grover since one and half year, prior to the incident. It
has also been brought on record that this witness, along with other
colleagues of their profession, i. e. production of TV Serials, used to
meet frequently at Cafe Coffee Day and Neeraj was also one of them. It
is deposed by this witness that on 152008, he met Neeraj at Cafe Coffee
Day. Neeraj informed him that he joined Synergy from 152008.
Neeraj had stated to him in past that he was trying for a role for Mariya,
the accused No.1, in TV serial. After some time accused No.1 Mariya
came there; Neeraj introduced Mariya to him. Neeraj also stated to him
that accused No.1's audition has taken place for “Mahabharat serial”
while he was working with Balaji Telefilm. Likewise, through this
witness, meetings of Neeraj Grover and Mariya in Cafe Coffee House
with him on 252008, 452008 and 552008, and in the Ultimate Pub
Judgment -S.C.630-08 -42- Exh.341
on 352008, have been brought on record. This witness also saw Neeraj
and Maria while kissing each other in “Ultimate Pub”. Further version
of this witness goes to show that on the request of Neeraj, he allowed
him to stay in his house with accused No.1 on 552008. (P.W.46) has
deposed that deceased Neeraj introduced accused No.1 to him on
2942008 and prior to that he requested him to look for a role for a girl
by name Mariya.
39. It is vehemently submitted by ld. advocate Sharif Shaikh on
behalf of the accused No.1 that there are various omission in the
evidence of the (P.W.9) in respect of Ultimate Pub and other meetings. I
have gone through the crossexamination, on which the ld. advocate for
the accused No.1 is heavily relying. Ld. advocate pointed to me Para 11
12 and 13 of deposition of (P.W.9). It appears that there are some
omissions in respect of words “Phone call”, “break”, “went to another
table”, “avoiding to talk”, so from these omissions, it cannot be said that
witness has not stated the incidences before police. Rather his statements
goes to show that he has stated all the incidence broadly. Mere adding of
some words in deposition which elaborate the incidences, it can take
away his deposition on the point of relation between accused No.1 and
Neeraj. Rather version of this witness goes to show that the relation
Judgment -S.C.630-08 -43- Exh.341
between accused No.1 and deceased Neeraj were not only knowing each
other but they were well acquainted with each other and even they
resided together in his flat on 552008.
40. Apart from the testimony of above said witnesses,
prosecution is also relying on call detail report of mobile 9920944083.
This subscriber detail (Exh. 207) as well as call detail report of Mobile
no. 9920944083 (Exh.207A) have been brought on record through
(P.W.42) Changdeo Haribhau Godse, Nodal officer of Voda Phone.
Initially the accused No.1 disputed her subscription on the mobile
No.9920944083. But subscriber detail goes to show that this number
belongs to accused No.1, coupled with the admission in the statement
u/s. 313 of Cr.P.C. the accused admitted that mobile No.9920944083
belongs to her. The call detail report of mobile No. 9920944083 which
is proved now, to be of accused No.1, goes to show that on 552008,
there are various calls between the mobile Number of accused No.1 and
mobile No.9967483634, which according to the prosecution is number
of Neeraj Grover. To prove this number, the prosecution has also
examined Sunil Tiwari (P.W.43), Nodel Officer of Bharti Airtel Co. The
covering letter (Exh.216) also goes to show that mobile No.9967483634
belonged to Neeraj Grover. The prosecution has proved that there were
Judgment -S.C.630-08 -44- Exh.341
various exchanges of calls between Accused no.1 and Neeraj on
5.5.2008.
41. The defence of the accused No.1 is that she was only
knowing deceased Neeraj. But from the testimony of Nishant Lal (P.W.9)
and Shantanu Agarwal (P.W.46) coupled with various calls between
accused No.1 and deceased Neeraj on 552008, goes to show that there
was well acquaintance between accused No.1 and Neeraj and deceased
Neeraj was involved in providing foothold to the accused No.1 in
entertainment industry. So, this fact is proved by the prosecution that
there was well acquaintance rather some sort of intimacy between
accused No.1 and deceased Neeraj.
● Concern of accused No.1 with flat No.201 'B' Wing Dhiraj
Solitare:
42. The another circumstance, on which the prosecution is
heavily is relying is the concern of accused No.1 with flat no.201, B
Wing, Dhiraj Solitare. According to the prosecution, on 652008,
accused No.1, took flat No.201 in B Wing of Dhiraj Solitare building
through Sundesh Shirke (P.W.3) and Dhiraj Manishkumar Shukla
(P.W.15). This fact is disputed by the accused No.1. From cross
examination, it appears that the accused No.1 claims to have possession
Judgment -S.C.630-08 -45- Exh.341
of flat No.201, from 1852008 and prior to that she had no concern with
flat No.201. To prove factum of possession of flat No.201 from 652008,
with the accused No.1, the prosecution is relying on testimony of various
witnesses. Star witness appears to be Mayuri Prajapati (P.W.2), Sandesh
Shirke (P.W.3) and Dhiraj Kumar Shukla (P.W.15).
43. According to Mayuri Prajapati (P.W.2), she is the resident of
flat opposite to flat No.201 in 'B' wing, Dhiraj Solitare building. This
factum is not disputed by the defence anywhere. According to her
testimony, she is residing in the said flat since August, 2007. She is
acquainted with accused no.1, as accused No.1 resided on the same
floor for two months in September 2007. Further version of this witness
goes to show that on 552008, the accused No.1 told her that she is
shifting to flat No.201. This witness met accused No.1 on 652008 in
Hypercity mall. Accused No.1 purchased household items, then they
came to Dhiraj Solitare building and went to their respective flats.
According to her, accused No.1 went in flat No.201, and after some time,
she used bathroom of flat of this witness. Further version of this witness
goes to show that on 852008, she had also visited flat No.201 to meet
accused No.1.
44. From the mouth of Sundesh Shirke (P.W.3) Estate Agent and
Judgment -S.C.630-08 -46- Exh.341
property consultant, it has been brought on record that on 552008, he
showed the flat No.201, to accused No.1 through Dhiraj Shukla
(P.W.15). However, flat was not cleaned therefore, accused no.1 did not
take possession on 552008. On 652008, he visited flat No.201 and
got the said flat cleaned with the help of labourer. The accused No.1
came to the flat at about 1 p.m. She verified the flat and this witness
delivered key to her and accordingly, accused No.1 took possession of the
flat.
45. Dheeraj Kumar Shukla (P.W.15) has corroborated the version
of Sandesh Shirke (P.W.3). According to him, accused No.1 had been to
his office on 552008 in search of flat. He then contracted Sandesh
Shirke (P.W.3), Sundesh Shirke showed flat to accused No.1 on
552008. It is further deposed by this witness that on 652008 at the
request of accused No.1, he asked Sandesh Shirke to be present in the
flat No.201 for giving possession to her.
46. The ld. advocate for the accused No.1 vehemently submitted
that there are some omission in the deposition of Mayuri Prajapati
(P.W.2). Ld. advocate for the accused No.1 submitted that material
question of deposition is not appearing in her statement dt. 1052008,
therefore, this cannot be believed. The omission which has been brought
Judgment -S.C.630-08 -47- Exh.341
on record in the deposition of this witness, is in respect of occurrence
dated 752008 and not prior to that, which I will deal with the
respective circumstance . Rather, there is no denial to her version that
on 652008, she saw that accused No.1 went inside flat No.201 of Dhiraj
Solitare building.
47. Another point which the ld. advocate for the accused No.1
tried to put before me is of Leave and License agreement (Exh.58).
According to him, as per prosecution story, Mariya accused No.1, signed
the agreement (Exh.58) on 1852008 and that time the accused no. 1
was in illegal custody of the police. Sum and substance of the argument
of the ld. Advocate for accused no.1 is that the agreement of flat is
manufactured by the police and signature of accused no. 1 was taken in
custody on 18.5.2008. Bare perusal of challan attached to
Agreement(Exh.58), which is paid for Franking of stamp duty for Leave
and License agreement, goes to show that it was paid on 1252008 and
bears, the name of the accused No.1 . So, it is the date, which is prior to
1852008, the document speaks itself that the Franking on the
agreement was done on 1252008, which rules out the possibility of
fabrication or manufacture at the instance of police on 18.5.2008. Bare
perusal of agreement (Exh.58) also goes to show that the said flat was
Judgment -S.C.630-08 -48- Exh.341
given on leave and license from 652008 till 532009. Ld. advocate for
the accused No.1 further submitted that the 11 cheques, which according
to the Sandesh Shirke and Dhiraj Shukla were given by accused No.1 as
a security, have not been produced by the prosecution. I do not think
that mere nonproduction of those cheques will be fatal to the
prosecution. So, from the testimony of Mayuri Prajapati (P.W.2), who
appears to be neighbor friend of accused No.1, as well as Sandesh Shirke
(P.W.3) and Dhiraj Shukla (P.W.15). It has been brought on record that
the accused No.1 got possession of flat No.201, on 652008. Their
version is consistent amongst each other regarding concern of accused
No.1 with flat no. 201 from 652008.
48. Not only that, there is also version of Nishant Lal (P.W.9),
who had been to flat No.201 on 752008, after they got news of missing
of Neeraj. Apart from it, the subscription Form for mobile connection of
Voda phone (Exh. 212 ) has been brought on record through (P.W.42),
which also goes to show that residence of accused No.1 as flat No.201,
Dhiraj Solitare building. It is pertinent to note that the subscription
Form was also applied on 552008, when she determined to take the
flat. Though it has been brought on record, in crossexamination that
the address furnished on subscription Form Exh. 212 has not been cross
Judgment -S.C.630-08 -49- Exh.341
checked by Voda phone company, but this fact will not take away the
case of prosecution, particularly when nothing has been brought on
record that Subscription From (Exh.212) has been prepared at the
instance of police. Pankaj Shah (P.W.30), Ld. M.M. who recorded the
confessional statement of the accused No.1, has also mentioned the
address on confessional statement of accused No.1 as Flat No.201,
Dhiraj Solitare, as her residence.
49. It has been further submitted by ld. advocate for the accused
No.1 that the Leave and License agreement (Exh.56) has not been signed
by the witness. This will be of no consequence. It may be relevant in
Civil proceedings but not in Criminal proceedings, particularly when
there is testimony of the witnesses regarding possession of accused No.1
over flat No.201 from 652008. Their version is further corroborated by
the date mentioned in the Agreement (Exh.58) Subscription From of
accused No.1 Exh.212.
50. Apart from it, there is version of Kamlesh Jain (P.W.16) that
in his diary (Art.38), the accused No.1 has written her address of
residence on 852008. The handwriting (Exh.98) in Order book
(Art.38), has not been disputed by accused No.1. So, the entry (Exh.98),
is in the handwriting of accused No.1. What has been disputed by the
Judgment -S.C.630-08 -50- Exh.341
accused No.1 that Entry (Exh.98) in respect of address of flat No.201,
Dhiraj Solitare building, written by her at the instance of the police
while she was in custody after 1852008. I have gone through Order
book (Art.38) and particularly, Entry (Exh.98), which is proved by Dilip
Ahiwale (P.W.40), Handwriting Expert, in the handwriting of accused
No.1. It is also admitted by accused No.1, as her handwriting. The
various entries in order book (Art.38) are made as per sequence of
dates. The relevant entry (Exh.98) written by accused No.1 also appears
to be in proper sequence of dates, for the simple reason that the writing
(Exh.98) appears to be normal writing and does not show any
conjunction to conclude that it is incorporated latter on, in between two
entries to show sequence of dates. Therefore I do not find any force in
arguments of the ld. advocate for the accused No.1 that entries were
made latter on, while accused No.1 was in custody of police. Though the
accused No.1 has examined her sister to show that accused No.1 was
residing in the house of Mr. Deepak prior to 652008 and even on
652008. But the above said material is sufficient to discard the version
of Maria Veronica Susairaj (D.W.3), particularly when there is version of
Nishant Lala that on 552008, accused No.1 stayed with Neeraj at her
flat. Apart from it, accused No.1 did not examine Deepak to show that
Judgment -S.C.630-08 -51- Exh.341
accused No.1 stayed in his house on 652008. The abovesaid material
discussed above, goes to only one conclusion that, the accused No.1 was
having concern with flat No.201 on 652008, rather she was in
possession of flat No. 201 of Dhiraj Solitare building.
● Visit of deceased Neeraj to flat No.201 on 652008:
51. According to the case of prosecution, to eliminate Neeraj,
accused No.1 called him in her flat on 652008; on her call, deceased
Neeraj visited flat No.201 and stayed there for whole intervening night
of 652008 and 752008. For this purpose, the prosecution is relying
on version of Mayuri Prajapati (P.W.2), neighbor friend of accused No.1
as well as Nishant Lal (P.W.9). The prosecution is also relying on call
detail report of deceased Neeraj (Exh.217) as well as injury certificate
(Exh.100). Let us see whether the prosecution could prove the presence
of Neeraj in flat No.201, on 652008.
52. Mayuri Prajapati (P.W.2), on whose evidence the prosecution
is heavily relying, appears to be the star witness to establish that Neeraj
had been to flat No.201 on 652008. Mayuri Prajapati (P.W.2) has
deposed on this aspect that after some time, accused No.1 rang her bell,
she used the bathroom of her flat and after sometime she left. At about
10.30 p.m. she opened the door of her home, which is opposite to flat
Judgment -S.C.630-08 -52- Exh.341
No.201, she saw a man was there in corridor, 20 ft. away from her door.
Accused No.1 introduced her with the said man as Neeraj Grover.
53. It has been brought in crossexamination that she was not
shown any photographs of Neeraj by the police and she was not knowing
Neeraj prior to 652008. It is submitted on behalf of ld. advocate for the
accused No.1 that it is virtually impossible for a person to remember the
name of person who was introduced to him for first time. It is not
always necessary that a person will forget name of a person, who has
been introduced to him, but however, as such, it is doubtful whether she
was able to remember. Therefore, some corroboration is required to
believe the version of (P.W.1) and it will be risky to rely on her sole
version without any corroboration.
54. To corroborate her version, the prosecution relies on call
detail report of deceased Neeraj Grover. As such, the mobile no.
9967483634 is proved as number of Neeraj Grover. It has been brought
on record that accused No.2 was not knowing deceased Neeraj prior to
652008. The prosecution claims that mobile No. 9388920779 is of
accused No.2. Though initially, the accused No.2 denied for having his
number as 9388920779. However, through Rajesh Sampatrao Gaikwad,
(P.W.41), Nodal officer of Reliance company, the subscription Form of
Judgment -S.C.630-08 -53- Exh.341
accused No.2 (Exh.200) has been brought on record. Likewise, the
subscriber detail (Exh.199 colly.) shows that mobile No. 9388920779 is
registered in the name of accused No.2. In the statement u/s.313 the
accused No.2 has also admitted to have mobile No. 9388920779. The
accused No.2 denied to have any concern with Neeraj Grover prior to
652008. In this background, the call detail report of Neeraj Grover
(Exh.218), goes to show that there were exchange of call between
mobile Accused No.2 and deceased Neeraj at about 11.39 p.m. and 11.54
p.m. in the night of 652008. As per prosecution case as well as
statements of the accused, rather deposition of Ajay Shyam Pandya
(P.W.27), Mrs P.A. Umadevi Executive of AirIndia Kochi, goes to show
that accused No.2 was at Kochi during the aforesaid two calls. It has
been brought on record that the accused No.2 is fiance of accused
No.1 and they were intending to marry. So, accused No.1 and 2 had
concern with each other. The purpose of calling to the mobile of
deceased Neeraj, by accused No.2 was, only to have talk with accused
No.1, which goes to show that deceased Neeraj and accused No.1 were
together at that time. The prosecution has also brought on record the
Receiving Tower ID of Voda phone, of the above said calls as 15231
which shows the location of the said Tower near flat no. 201.
Judgment -S.C.630-08 -54- Exh.341
55. Apart from it, there is version of Nishant Lal (P.W.9) that on
652008, he and other friend, met as usual at Cafe Coffee shop, but
Neeraj was not there. Namrata who was with this witness, at that time
she received call from deceased Neeraj. They called Neeraj to join them,
but he stated that that accused No.1 has called Neeraj as she has taken a
new house. It is further deposed by this witness that Nisha also made
phone call to Neeraj stating that they had cooked food and invited him
for dinner but Neeraj stated that he cannot come as he was in the house
of accused No.1. This witness and another friend also talked with
accused No.1. Not only this, his further version, goes to show that on
next day, Maria accused No.1, has called this witness at about 11.30
a.m. and told him that Neeraj had left her house at about 1.30 a.m. and
has forgotten his mobile in her house. While, on again receiving phone
call of this witness, the accused No.1 further stated that to inform
Neeraj that he had left her house stating that he is going to Nisha's home.
56. It is submitted on behalf of the ld advocate for the accused
No.1 that (P.W.2) and (P.W.9) cannot be believed as there are omissions in
their statements. He took me to the omission of (P.W.2) wherein, while
giving statement this witness has not stated Surname of deceased and
only stated Neeraj. I do not think that this is a material contradiction to
Judgment -S.C.630-08 -55- Exh.341
disbelieve her testimony. Likewise, omission in respect of “taking new
house by accused No.1” and “ accused No.1 stated to this witness to
inform Neeraj that he had left his mobile at her house” if separated
from his evidence, even then, his evidence points that the deceased
Neeraj was at the house of accused No.1 in the night of 652008. The
further version of this witness “ while in the night of 7.5.2008, she came
down from Dhiraj Solitare, the accused No.1 had mobile phone of
Neeraj.” also goes to show that Neeraj was with accused No.1 on
652008. There is no reason to disbelieve this witness. As among all
friends, deceased Neeraj had good rapport with this witness. Some
discrepancy in his evidence, which is normal in nature, cannot be a
ground to discard his evidence, therefore is to be ignored.
57. So, the version of Mayuri Prajapati (P.W.2) is corroborated by
calls made by accused No.2, on the mobile of deceased Neeraj as well as
version of Nishant Lal (P.W.9). Not only that, the missing complaint
(Exh.138), which was promptly lodged by Nishant Grover, (P.W.33), in
the intervening night of 752008 and 852008, contains that Neeraj
had been to the house of accused No.1. in Dhiraj Soltare Building,
Malad, also fortify the claim of prosecution. This complaint, which was
promptly lodged, speaks itself and an entry of which also reflects in
Judgment -S.C.630-08 -56- Exh.341
station diary of Malad police station dated 852008. This rules out the
possibility of any ambiguity regarding presence of Neeraj Grover in
Dhiraj Solitare building on 653008.
58. Not only the version of PSI Indap (P.W.34) and Nishant
Grover (P.W.33) goes to show that the accused no. 1 had mobile of
Neeraj Grover, which she gave to PSI Indap(P.W.34), who in turn gave it
to Nishant Grover (P.W.33). Their version is also corroborated by the
station dairy entry dated 9.5.2008 which is produced on record.
59. The version of the prosecution witnesses are consistent on
this point and corroborate each other. Their evidence is also corroborated
by documentary evidence such as call detail report of Neeraj Grover,
Missing complainant (Exh.138) and Station dairy entry of mobile
(Exh.142 ). Hence I have no hesitation to conclude that Neeraj had been
to flat no.201 in the night of 6.5.2008.
● Visit of accused No.2 to flat No.201 in Dhiraj Solitare
60. Next circumstances on which the prosecution is relying is
visit of accused No.2 to flat No. 201 of Dhiraj Solitare building in the
morning of 752008. It is the case of prosecution that accused Nos.1
and 2 hatched conspiracy by talking on their respective mobiles to
eliminate Neeraj Grover and in pursuant to criminal conspiracy, the
Judgment -S.C.630-08 -57- Exh.341
accused No.2 immediately flew to Mumbai from Cochi and marked his
presence in flat No.201 of Dhiraj Solitare building at about 7.30 p.m. For
this circumstances, the prosecution is relying on version of (P.W. 6)
Kundan Jha as well as the version of (P.W.2) Mayuri Prajapati and
Nishant Lal (P.W.9), for presence of accused No.2 in flat No.201.
61. The accused no.2 has denied the visit of accused No.2 at any
time in Dhiraj Solitare building. From crossexamination, statement u/s.
313, and the version of the accused No.2, it appears that accused No.2
took defence of alibi. According to him, though he flew to Mumbai, in
the intervening night of 652008 and 752008, but he never visited
Dhiraj Solitare building. It was decided between him and accused No.1
that they will meet at Inorbit Mall and therefore, he directly went to
Inorbit Mall at about 10 a.m. and about 12 noon he met the accused
No.1 and her sister. They spent entire day together and in the evening
after separating himself from accused No.1 and her sister, he took
shelter for night in one hotel at Link road Malad. On the next day,
after meeting his uncle, he returned to Cochin and joined his service.
Let us scrutinize the evidence of prosecution as well as version of
accused No.1 to decide whether accused No.2 visited flat No.201 on
752008.
Judgment -S.C.630-08 -58- Exh.341
62. Kundan Jha (P.W.6), who was watchman of Dhiraj Solitare
building, has deposed that in the morning of 752008, he was at
counter. At about 7.30 p.m. a boy about 2526 years came near the
counter, he intended to go in the building. Witness asked him to write his
name in the register. The said boy did not write his name in the register.
It is further deposited by this witness that the said boy stated that he was
going to flat No.201, and the person residing in the said flat is his
relative. Thereafter the said boy entered in the lift and went upstairs.
This witness identified the said boy as accused No.2. The witness also
claims that he identified accused No.2 in T.I. Parade dated 572008.
( As the court time is over, hence case is adjourned to 2862011)
(Dictation of judgment continued on 2862008.)
63. Mayuri Prajapati,(P.W. 2) occupant of flat No.203, opposite to
flat No.201 of 'B' wing, Dhiraj Solitare Building, has also deposed
regarding presence of accused No.2 to flat No.201. According to this
witness, she saw accused No.1 outside her flat on 752008 at about 4.30
p.m. Accused No.1 stood near door of flat No.203. Accused No.2 was
with accused No.1. Accused No.1 stated that they are going out and left.
It is further deposed by this witness that on 852008, she noticed that
the door of flat of accused No.1 was open and accused No.1 was sitting
Judgment -S.C.630-08 -59- Exh.341
with accused No.2. Mayuri (P.W.2) went to talk to them. A painter
arrived there. Accused were talking to said painter regarding painting
their flat, therefore, Mayuri (P.W.2), left.
64. It is submitted on behalf of the ld. advocate for the accused
No.2, that Mayuri (P.W.2) cannot identify accused No.2 as she did not
take part in TI Parade. Let me state here that it has been brought on
record in her examination in chief itself, that when accused No.1
visited Mumbai in December 2007, accused No.1 came to her flat with
a man and introduced said man to her as Emile, her fiance. Accused
no.1 requested this witness to allow accused No.1 to stay in her flat for
one day. It is also brought on record that this witness permitted them to
stay in her flat and she went to reside in house of her motherinlaw. So,
from this version of Mayuri Prajapati (P.W.2), It is manifest that she was
knowing accused No.2 from December, 2007. Another point, which ld.
advocate for accused No.2 vehemently submitted before me that incident
of December 2007 is omission. Likewise, incident of her meeting with
accused Nos. 1 and 2 on 752008, and on 852008 are omissions,
therefore, it cannot be read in evidence. I have gone through cross
examination as well as statement of this witness recorded u/s. 161 of
Cr.P.C. It appears that two statements of this witness were recorded;
Judgment -S.C.630-08 -60- Exh.341
firstly on 1052008 and secondly on 2462008. Though there is no
whisper of the aforesaid three incidents, in statement dated 1052008,
but these three facts are finding place in the subsequent statement dated
2462008. It is worthwhile to mention here that the crime of murder
was detected on 2152008 and the statement of this witness dated
1052008 was recorded in respect of missing inquiry of Neeraj Grover.
So, it is but natural conduct of the witness that he/she will state the fact
relevant to the inquiry only. But when the crime was detected, then
obviously, the tendency of the witness would be stating of all relevant
facts to the crime for which statement is given. As such, the statement
dated 1052008 of this witness was only in respect of missing inquiry,
therefore, these facts deposed by the witness, are not finding place in
the statement dated 1052008, but they are verywell finding place in
the statement dated 2462008, which is not in dispute. Therefore, these
three incidents deposed by the witness, cannot be treated as an omission.
Not only that, this witness was not crossexamined by accused No.2.
The accused no. 2 did not deny to this witness about his presence in flat
no. 201.
65. Apart from this, there is version of Nishant Lal (P.W.9). It has
been brought on record through Nishant Lal that when on 752008, in
Judgment -S.C.630-08 -61- Exh.341
late evening, he had been to Dhiraj Solitare building for taking accused
No.1 to Malad police station for lodging missing complaint. Accused
No.1 came down. He and his friends requested her to come with them
for lodging missing complaint, then accused No.1, for changing her
clothes, took Nishant Lal and other friends to her flat No.201. She
introduced accused No.2 to this witness. This witness has also identified
the accused No.2 in the dock. This witness has also identified the
accused no. 2 in Test Identification Parade dated 5.7.2008.
66. Satish Kumar Dayaprasad Singh (P.W.10), who was working
as Security guard with Honest Security Services since 1032008. He was
deputed as a Security guard in May 2008, at 'B' Wingh Dhiraj Solitare
building. On 752008, at about 8.30 a.m. he joined his duty at 'B'
Wing . At about 4.30 p.m. on 752008, he went to tea stall for having
tea. He returned to the building within 510 minutes. He found a
Santro car of grey colour, parked in 'B' Wing near the lobby. He also
deposed that accused No.1 was staying in the flat No.201. After
returned from tea stall, he noticed accused No.1 along with one boy aged
about 2527 years, coming to the Santro car. He identified accused No.2
in the dock as the said boy who was accompanying the accused No. 1.
Both came from the building, accused No.1 and 2, each had big rexin
Judgment -S.C.630-08 -62- Exh.341
bag with them. They put both bags in dickey of Santro car. They went
inside the building and again returned within 5/10 minutes with one big
bag. Accused No.1 was holding the bag from one side and accused No.2
from the other side. They kept the bag in the rear side of Santro car.
Accused No.1 then sat on driver's seat and accused No.2 on adjacent
seat. So, according to this witness also, he noticed presence of accused
No.2 in Dhiraj Solitare. So far as evidence of this witness with regard to
taking bag and putting them inside Santro car will be discussed latter on,
as I am concerned right now in respect of presence of accused No.2 at
the flat No.201. This witness has also identified the accused No.2 in
Test Identification Parade(TIP) conducted by Sharad Vichare (P.W.23).
67. It has been also argued on behalf of accused No.2 that the
alleged test identification parade has not been held and the accused
No.2 was directly shown to the witnesses. In support of these
contentions, accused No.2 has examined himself and (D.W.14) Deepak
Jaidevsingh Malik and (P.W.16) Manish Naresh Thakur. Let us first see
what the prosecution has brought on record in respect of test
identification parade.
68. The prosecution has examined (P.W.23) Sharad
Vichare(S.E.O.) in respect of TI parade dated 762008 and 572008.
Judgment -S.C.630-08 -63- Exh.341
This witness has deposed in respect of TI parade dated 762008, that
he conducted TI parade of accused No.2. According to him, after
selecting panchas, he along with witnesses, Satish Dayaprasad Singh
(P.W.10), and Dheeraj Kumar Shukla (P.W.15) panchas with PSI Dilip
Deshmukh went to Aurthur Road jail and he entered first inside the jail.
The witnesses and Dilip Deshmukh were outside the jail. The witnesses
were called one by one and they identified accused No.2. The evidence
in respect of TI parade dated 572008 of this witness is on the same line
and according to this witness, Kundan Ravindra Jha (P.W.6), Kamlesh
Jain (P.W.16) and Amarbahadur Yadav (P.W.22) identified the accused
No.2 .
69. The testimony of this witness is also corroborated by Kundan
Jha (P.W.6) and Satish Singh (P.W.10) in their deposition. The ld.
advocate submits that TI Parade dated 572008 is never held. The
accused examined Deepak Malik (D.W. 14)and Manish Thakur (D.W.16) .
They are shown as dummy in the TI Parade dated 572008. Deepak
Malik (D.W. 14) who was coprisoner along with accused No.2 in his
barrack. Likewise, Manish Thakur (D.W.16) was also coprisoner with
accused No.2 in same barrack. Both of them have deposed that they did
not take participation in TI parade dated 5072008, wherein as per
Judgment -S.C.630-08 -64- Exh.341
prosecution Kundan Jha (D.W.6) identified accused No.2. Taking help of
deposition of these witnesses and version of accused No.2 on oath, the
ld. advocate for the accused No.2 submits that the TI Parade dated
572008 never conducted. The accused No.2 who has examined
himself on oath, has deposed that during custody in Aurthur Road jail, he
was called inside the office of jailor and was shown to some persons with
instructions to them to identify the accused in the court.
70. Let me state the fact that Deepak Malik (D.W.14) and
Manish Thakur (D.W.16) are under trial prisoners and they are charged
with serious offence. It is pertinent to point out here that as per record,
the accused No.2 was transferred to Taloja jail from Aurthur road jail on
the point of security against which, accused No.2 objected and gave his
written objection in writing at (Exh.136), pursuant to which show cause
notice was issued to Superintendent of Aurthur Road jail, wherein the
name of Manish Thakur (D.W. 16) is appearing. According to the
explanation of jailor, Accused No.2 and this Manish Thakur (D.W. 16)
are close friend of Abu Salem and in view of attack on Abu Salem by his
opponents, there is apprehension that there may be attack on accused
No.2 and Manish Thakur (D.W. 16). So, this explanation goes to show
that there is close relationship between accused No.2 and (D.W.16). So
Judgment -S.C.630-08 -65- Exh.341
far as Deepak Malik (D.W.14) is concerned, he was also coprisoner
with accused No.2. As against this, there is categorical version of SEO
Sharad Vichare (P.W. 23) that TI Parade on 562008 was held in Aurthur
Road Jail, coupled with the fact that the document Exhs.227, Entry
register of Aurthur Road jail, which is produced by the accused No.2
himself, goes to show that Sharad Vichare (P.W.23), panchas along with
Kundan Jha (P.W.6) as well as Dhiraj Shukla (P.W. 15), entered in
Aurthur Road Jail. I am unable to accept the arguments of the ld.
advocate for the accused that if there was no intention to conduct the TI
Parade of accused No.2 on 572008, then why the panchas were taken
to Aurthur Road Jail, and it was easy for Sharad Vichare (P.W.23), to
prepare memorandum of TI parade without accompanying with the
panchas. After weighing the evidence of Deepak Malik (D.W.14), Manish
Thakur (D.W.16) and accused No.2 on one part and on other hand the
version of (P.W. 23) Sharad Vichare, (P.W.6) Kundan Jha and (P.W.15)
Dhiraj Shukla, who have also deposed about TI Parade dated 572008.
The defence brought by the accused No.2 regarding not holding of TI
Parade on 572008, does not seem to be probable in view of testimony
of prosecution witnesses, which was also corroborated by TI Parade
panchnama (Exh.37) as well as Jail entry Registered(Exh.227) produced
Judgment -S.C.630-08 -66- Exh.341
by the the accused no.2 himself.
71. TI parade is also challenged on the ground that the Sharad
Vichare (P.W.23) resides within the jurisdiction of LT Marg police station
and instead of this he is selected to conducted TIP, only giving support
to false case of the prosecution. But I do not find any substance in this
argument of Ld. advocate for the accused No.2 and there is no hard and
fast rule that a SEO of particular police station shall conduct TI Parade.
Looking to the version of Sharad Vichare (P.W.23), it appears that he has
conducted various test identifications parades. With the experience of
this witness, appears to be the obvious reason for Investigation officer
as abundant precaution, to select this witness as SEO to conduct TI
Parade. It is further argued that prosecution has not taken precaution
that the accused No.2 that the witnesses had no opportunity to see the
accused No.2 after their first alleged meeting till the TI parade was
held. According to him the burden lies on the prosecution to prove this
fact also. In this context the Ld. advocate for the accused seeks to rely
on judgment of Allahabad High court, in the case of Ashrafi Vs. State
reported in AIR 1961 Allahabad page 153, wherein it is held that :
“ It is the duty of the prosecution to show that from the time of the arrest of the accused person to the time of his admission into the jail, precautions were taken to
Judgment -S.C.630-08 -67- Exh.341
ensure that he was not seen by any outsider. Once evidence has been led to show this, the burden shifts on the accused to show otherwise. It is invariably assumed at the Bar that in such matters the police do not play fiar but instead show the accused to the witness before his identification, either by detaining him for a number of of days and then formally arresting him or by calling the witness to the policestation after the arrest and showing him before he is sent off to the jail.”
While disagreeing with the case, reported in Baliram Tikaram V. Emperor, AIR 1945 Nag. it has been observed that:
“With the utmost respect to their Lordships, we venture to point out that this a sentiment, not law. There is no presumption that police officers act dishonestly see Dwarka V. State, AIR 1954 ALL 106, where a witness gives evidence on oath the presumption is that he is speaking a truth. If therefore, the prosecution have led evidence to show that from the time of arrest of an accused to the time of his admission into the jail precautions were taken to ensure that he was not seen by any outsider and if the identifying witnesses deposit that they never saw him at any time between the crime and the identification parade, the burden lying on the prosecution has been discharged. It is then for the accused to establish that he was shown. The law does not require him to do so affirmatively; it is sufficient if hecan succeed in creating a reasonable doubt in the mindof the court.
Direct evidence may not be available, but he maydischarge his burden by showing for example that heand the witnesses were present in the police station atthe same time or that he was marched through the village of the witnesses or that the witnesses were presentat the office of Prosecuting Inspector when his jail warrantwas being prepared. But if he fails to rise a reasonabledoubt, the law enjoins that the prosecution evidence on
Judgment -S.C.630-08 -68- Exh.341
the matter be accepted. In dealing with such questions itis often ignored that the accused is a total stranger tothe witnesses and that save for exceptional cases he isa stranger to the police too, hence, neither the witnessesnor the police have any motive for incriminating himfalsely.”
72. I have gone through this judgment, rather it was held that
while dealing with the question of TI Parade, it is often ignored that the
accused is total stranger to the witnesses and police too, hence neither
the witnesses nor the police have any motive for incriminating him
falsely. So,in this case also, the witnesses were stranger and it has not
been brought on record that the police have any motive to implicate the
accused No.2 in false case, hence judgment cited by the ld advocate for
the accused rather goes to support the contention of ld. APP for the
State. Rather MidDay news paper dated 1.6.2008 (Exh.310A) which has
been brought by the accused No.2 himself, goes to show that the accused
no.2 is shown in veil.
73. It has been further pointed out that the statements of the
witnesses were recorded so late, and no explanation has been brought on
record by the prosecution by not examining the witnesses at the earliest
opportunity. In this context, the ld. advocate for the accused No.2 seeks
to rely on judgment of Apex court. In the case of State of U.P. V/s Satish
Judgment -S.C.630-08 -69- Exh.341
reported in 2005 SCC Cri. (642) wherein Apex court has observed that
“ If no explanation is asked to I.O. then no adverse
inference can be drawn. If however, opportunity
being offered, the I.O. failed to explain his version,
has to be discarded.”
74. According to the ld. advocate for the accused No.2, (P.W.47)
I.O. has been asked about publishing of the name in newspaper
(Exh.301,302 and 303), he showed his ignorance about the news.
Therefore, according to the ld. advocate for the accused No.2, the delay
in recording the statement of the witnesses is fatal to prosecution. I have
gone through the entire crossexamination of I.O. Raorane (P.W.47). No
explanation has been sought by accused No.2 as to why the statements
of the witnesses were recorded after long time. So, this judgment will
not be helpful to the accused No.2. Even otherwise unless prejudice is
shown to the accused that cannot be the ground for rejecting the
testimony of these witnesses.
75. Now, reverting to the facts of the case, there is version of
Kundan Jha(P.W.6) who saw accused No.1 while entering in Dhiraj
Solitare building. At at this juncture ld. advocate for the accused No.2
put me to the version of accused No.2. He submits that according to the
Judgment -S.C.630-08 -70- Exh.341
version of Accused No.2, he did not visit Dhiraj Solitare building, rather
as per his version, he came to Inorbit Mall and spent a day with accused
No.1 and her sister and thereafter, he separated and went to meet his
uncle. His further version goes to show that he stayed in one hotel by
name Samadhan or Sambhavna at Link Road, Malad and from there, he
booked return ticket for Cochin and on 852008, in the evening, he met
his uncle and took flight to Cochin.
76. It is not in dispute that accused No.2 talked with accused
No.1 on 652008. As per the version of accused No.2 himself, that the
only reason for sudden leaving from Cochin, in night itself was to meet
accused No.1. The relation between accused No.1 and 2 were of fiancé
and according to accused No.2, the reason for accused No.2 to sudden
visit Mumbai, was only accused No.1, coupled with manner in which,
the accused No.2 left Cochin i.e. without obtaining permission from Navy
Base, with knowing consequences of leaving Base without permission,
goes to show that only and only object of accused No.2 was to meet the
accused No.1. As such, I have already held that on 652008, accused
No.1 was residing at flat No.201 in Dhiraj Solitare Building, coupled
with the fact that accused No.2 flew to Mumbai for accused No.1. If that
is so it is but natural that the accused no.2 would land only at the house
Judgment -S.C.630-08 -71- Exh.341
of the accused no.1 i.e. flat no.201. Therefore, there is no reason for him
to visit Inorbit Mall for meeting the accused No.1 particularly when
Accused no.1 was possessing flat No.201. This circumstance also goes to
corroborate the version of P.W. no. 6 Kundan Jha that on 7.5.2008, in the
morning, the accused no.2 visited flat no.201. As such there is no exact
timing of death of Neeraj Grover, therefore the submission of Ld. Adv. for
the accused no.2 that flight landed half an hour late, is not significant.
Even otherwise nothing is brought on record, that flight landed late. On
the contrary Prosecution through P.W. 24 Mrs. Umadevi has brought on
record that the flight took off right time from Cochin.
77. Not only that, as such, the accused No.2 has come with
the plea of alibi, burden lies on him to prove that he was not present on
the spot. Though accused No.2 claims that he stayed in Hotel by name
Samadhan or Sambhavna, in the night of 752008, but accused did not
examine anybody from said hotel, nor even he made any attempt to
examine the employee of said hotel. It is submitted on behalf of the ld.
advocate for the accused No.2 that accused is in custody and he had
limited recourse to call the witnesses. I do not agree with this
submission of the ld. advocate for the accused No.2. As such number of
defence witnesses have been examined by accused No.2, rather the
Judgment -S.C.630-08 -72- Exh.341
accused No.2 had examined three witnesses, who came down to
Mumbai from Cochin, therefore submission of no recourse does not
carries values.
78. Further ld. Adv. for accused no.2 tried to put before me that
the accused had bill of Hotel Samadhan, where he stayed at the night of
7.5.2008, but it was taken by Mahesh Tawde alongwith his bag. For this
submission he seeks to rely on Photograph(Exh 310A) in newspaper
(Exh.310). Bare perusal of the photograph (Exh310A) goes to show
that a person in veil holding a bag. Taking help of this photograph, Ld.
Adv. for accused No.2 submitted that the bag belongs to accused no.2
and in the said bag the bill of Hotel Samadhan or Sambhavana was kept.
According to accused no.2 the said bag was taken from him by Mahesh
Tawde, API of crime branch. It is worthwhile to mention here that it has
been brought on record in deposition of accused no.2 himself that the
body receipt Form (Exh.291) was issued by Navy Office at Cochin, while
giving custody of the accused no.2 to Mumbai Crime Branch, mentioning
all the belonging carried by the accused no.2 on his person. The very
minute articles are noted in the said body receipt like details of mobile
phone, even identity card as well as cash of definite figure, but no where
it is noted that the accused was possessing bill of hotel. It is contended
Judgment -S.C.630-08 -73- Exh.341
by the accused no.2 that bag belongs to him, but nowhere in the body
receipt form, there is mention of bag. When every minute details of the
document and amount is given in body Receipt Form that I don't think
Indian Navy will not mention a big bag which is shown by the accused
no.2 in Photograph (Exh. 310A). The accused no.2 did not examine
Mahesh Tawde in his defence to show that the bag belongs to him and
was containing Bill of Hotel. The accused prayed for direction to be
given to the prosecution to examine Mahesh Tawde or to be examined
as court witness. Which was rejected by the court for the reasons
recorded. But facts remains that inspite of the opportunity, he did not
chose to examine Mahesh Tawde as his witness, to prove that the bill of
the hotel was inside bag and bag was taken by Mahesh Tawde. Even
otherwise according to accused himself he went to Hotel in the night of
7.5.2008 and according to prosecution, the incident happened since the
morning till evening of 7.5.2008. So it would not make difference
whether he stayed in the hotel on the night of 7.5.2008. The defence of
alibi of the accused No.2 that he did not visit Flat No.201, on 652008
is not probable. Rather, the fact that accused No.1 was residing in flat
No.201 on 652008 goes to corroborate the version of Kundan
Jha(P.W.6). His subsequent presence, which has been brought on record
Judgment -S.C.630-08 -74- Exh.341
through Mayuri Prajapati (P.W.2), Satish Singh (P.W.10) and Dhiraj
Shukla (P.W.15), also concretes the version of the Kundan Jha (P.W.6).
Therefore, there is no substance in the arguments of the ld. advocate for
the accused No.2 that prosecution failed to prove presence of the
accused No.2 in flat No.201 on 752008. There is material available on
record which goes to show that accused No.2 visited flat No.201, Dhiraj
Solitaire building in the morning of 752008.
● Recovery of remains of human skeleton from Manor Wada on
2152008.
79. This is another circumstance, on which the prosecution is
heavily relying on connect the accused No.1 and 2 with the murder of
Neeraj Grover. For this recovery, prosecution is heavily relying on
version of Usha Ramalu (P.W.5), P.I. Nalawde (P.W.45), PSI Shirsagar
(P.W.44) and Investigation Office Raorane (P.W.47). According to the
prosecution the remains of human sekelton were recovered at the
instance of accused No.1 and is admissible u/s. 27 of Indian Evidence
Act. As against this, the defence is vehemently disputing the recovery
of remains of human skeleton on 2152008. According to cross
examination of defence of the accused, it appears that they took defence
that the body was recovered prior to 2152008.
Judgment -S.C.630-08 -75- Exh.341
80. Usha Ramalu (P.W.5) has deposed that on 2152008. she
was bypassing Malad Police station, one constable called her and took
her to PI Nalavde. She was requested to act as a panch to a statement,
which is made by the accused No.1. She was introduced to accused
No.1. Accused No.1 stated that she will show the place where the pieces
of corpus of Neeraj Grover were burnt and she asked to come with her.
Accordingly, the said statement was recorded and this witness has put
her signature on the said memorandum panchnama dated
2152008(Exh.36A). It is further version of this witness that thereafter
the accused led the police party and the panchas to Western Express
High way, vehicles were taken to said Highway at the instance of the
accused No.1. Thereafter, the accused No.1 took them to Wada road,
thereafter on right side of Wada road; they came near a Hill, the
accused asked them to take the vehicle to the left; there was a kachha
road. They proceeded a little ahead to Kachha road; the accused asked
to stop the vehicle, all of them got down from the vehicle, they walked
for some distance, there was foot way, the accused took them to said
way; the accused showed the spot near the foot way. They saw human
rib cage, skull and other burnt pieces were lying there. Police took out
photograph in their presence. The police put all the bones in one plastic
Judgment -S.C.630-08 -76- Exh.341
bag, which was packed and again it was kept in bag of cloth, and it was
sealed with the labels bearing signatures of this witness and other
panch.
81. It is further version of Usha Ramalu (P.W.5) that from the
said place, bunt piece of bag article 13, burnt piece of red cloth ( Art.14),
partly burnt cloth having red lines (Art.15), damaged glass perfume
bottle (Art.16), tin bottle (Art.17) and damaged tin bottle (Art.18),
partly burnt metal button and coin (Art.19 colly) were recovered from
the spot. Apart from it, soil from the burnt place (Art.20) and other than
burnt place (Art.21) were taken separately and recovery panchnama
(Exh.63B) was prepared.
82. Ld. advocate for accused No.1 took me to cross
examination. It has been brought on record in crossexamination that
she was SEO of Malad Police station. So, according to the ld. advocate
for the accused, this witness has never visited Manor Wada. Some
discrepancy in the evidence of this witness has been brought on record
regarding working as SEO. But in her chief she had specifically deposed
about showing of place and recovery of remains of human skeleton. Her
version is corroborated by Shirsagar (P.W.44), PI Nalawde (P.W.45)and
Raorane (P.W.47), as well as recovery panchnama(Exh.63B)
Judgment -S.C.630-08 -77- Exh.341
83. These witnesses have been crossexamined at length by
defence to show that recovery was not made on 2152008. The ld.
advocate for defence heavily relied on Press Conference held by then Jt.
Commissioner of Police Rakesh Maria (D.W.18). To create doubt, defence
has examined journalist of MidDay paper and the defence also dared
to examine the Jt. Police Commissioner in their defence. According to
ld. advocate for the accused Nos. 1 and 2, the Press Conference was held
by the then Jt. Commissioner Rakesh Maria (D.W.18). The press
conference is proved through Rahul K. Bajaj (D.W.17 )as well as Rakesh
Maria (D.W.18) and with the help of CD (Exh.330), which was marked
tentatively. But in view of admission on behalf of (D.W.18) Rakesh
Maria, regarding holding of Press Conference, on 2152008, and
admitting his briefing to Media, contained in CD (Exh.330) it can be
safely said that the defence has proved the Press Conference contained in
CD. Let us see whether Press Conference goes to show that the body was
recovered prior to 2152008. Before going to evaluate evidence on this
aspect, it must be kept in mind that the joint Commissioner Rakesh
Maria has been called by the defence and he is witness of the Defence.
84. With admission of Press Conference, Rakesh Maria (D.W.18)
has also admitted that he has given briefing in respect of blood on
Judgment -S.C.630-08 -78- Exh.341
window draps (curtain), use of car, using of knife and witnessed by
watch man of the building. The main reason for calling of this witness by
the defence, was to show that when the Press Conference was held in
the evening of 2152008, then how it is possible to get the knowledge
by this witness regarding recovery of remains of skeleton, blood stain
curtain drips, particularly when according to prosecution, the police
team returned to Malad Police station at about 6 p.m. The explanation
was sought from this witness as to how he came to know about details of
detection of crime and recovery of remains of human skeleton. In reply,
this witness has deposed that one Sunil Ghosalkar was coordinating
amongst this witness, Malad police station and Crime Branch. According
to this witness, Sunil Ghosalkar did not visit Manor Wada and he was
getting update from the Investigation team. So, nothing has been
brought on record through this witness that could show that recovery
was made prior to 2152008. So for knowledge of this witness as to
blood on curtain draps, use of knife and car, this witness has
categorically deposed that investigating team got the knowledge during
interrogation to accused no.1 while returning from Manor and in turn
Sunil Gosalkar got knowledge while he was in contact with investigating
team and sunil Gosalkar had updated this witness, Rakesh Maria
Judgment -S.C.630-08 -79- Exh.341
(D.W.18).
85. Another circumstance on which the defence is harping, is visit
of team of three persons to Cochin on 2052008, for taking accused
No.2 in custody. It has been brought on record that Mahesh Tavde along
with other police officers went to Cochin on 2052008 by flight. Taking
this fact, the ld. advocate for accused No.2 vehemently submitted that
the police team visited Cochin on 2052008, to arrest accused No.2 in a
crime of Murder of Neeraj Grover and that means the alleged crime was
detected either on 2052008 or prior to that but not after 2052008 as
alleged by the prosecution by showing recovery of remains of human
skeleton. To fortify this fact, the accused No.2 examined Sunil Krishnaji
Damle(D.W.12).
86. Before dealing with the defence witness, let me state the
explanation, which the prosecution has brought on record regarding visit
of Mahesh Tavde to Cochin prior to 2152008. It has come in the
evidence of Raorane (P.W.47) that Mahesh Tavde along with his team
had been to Kochin on 2052008, in connection with missing complaint
(Exh.138) in respect of Neeraj Grover. So, the prosecution stand with its
case that crime was detected only on 2152008, with this explanation let
us see whether the defence has brought anything contrary to this
Judgment -S.C.630-08 -80- Exh.341
explanation. Version of Sunil Krishna Damle (D.W.12)goes to show that
Mahesh Tavde met him twice. In first occasion, he requested him to have
custody of accused No.2 for inquiry in respect of a missing person, to
which this witness has denied his request with the arrangement that
accused No.2 can be posted at Mumbai Base and from there, they can
inquire with the accused No.2. However, according to this witness, in
second meeting he intimated that accused No.2 is involved in murder of
Neeraj Grover. The prosecution claims that Mr. Tavde was updated with
the situation on 2152008 at Cochin itself and therefore, he handed over
letter (Exh.257, 257A,257B) to Navy. The prosecution is heavily relying
on this letter, wherein, the reveal of crime of murder of Neeraj Grover is
shown. According to defence, when Mahesh Tavde left Mumbai, he was
having that letter (Exh.257) prepared with him, which goes to show that
on 2052008, the murder of Neeraj Grover was revealed after recovery
of human skeleton. I have gone through (Exh.257), which is dated
2152008 and bears signature of Mahesh Tavde for and on behalf of Sr.
PI of Crime Branch, Bandra Unit. Therefore, I find substance in the
arguments of the ld. APP that the letter was prepared by Mahesh Tavde
at Cochin.
87. So, the accused no.1 could not get any help from his witness
Judgment -S.C.630-08 -81- Exh.341
Sunit Damle (D.W.12), who was at the highest post in Southern Naval
Command at Cochin as a CommanderinChief. Likewise, Sanjay
Jagdishchandra Sharma (D.W.13) has been examined by accused No.2.
He has also not supported the contention of accused No.2. Lt.
Nagabhushan, Niranjancharya has submitted the copy of same letter
(Exh.257). Though through this witness the copy of letter to Navy has
been brought on record, but the fact remains that the letter was
prepared by Mahesh Tawde by himself at Cochi on 2152008, after
getting update from Mumbai on 2152008. Had Mahesh Tavde taken
written letter from Crime Branch, Bandra Unit on 20.5.2008 before
leaving Mumbai, then certainly, it would have contained the signature of
Senior P.I. But the latter (Exh.257) goes to show that it bears signature of
Mahesh Tawde, for Senior PI of Crime Branch, which goes to support,
the contention of the prosecution. So, nothing material has been
brought on record by accused No.2 to show that Mahesh Tavde had been
to Cochin in connection with crime of murder of Neeraj Grover and not
in missing complaint. Mere Mahesh Tavde visited by flight to Cochin
and account of fare has not been explained by the prosecution, cannot be
the ground to believe that he has left Mumbai for arresting accused and
he was knowing the murder of Neeraj Grover on 2052008 itself. Much
Judgment -S.C.630-08 -82- Exh.341
has been crossexamined by the ld. advocate for the accused on the point
of fare of flight but I do not think that this will be relevant to fact in
issue. Even for the sake of arguments, it is admitted that fare was
provided by Amarnath Grover, it will not affect the case on merit. Let us
see whether the prosecution independently proved the recovery of
remains of human skeleton at the instance of accused No.1.
88. Another ground, which has been advanced before me by the
ld. advocate for the accused No.1, that where from human skeleton was
recovered, was accessible to general public. To buttress his submission,
he seeks to rely on (Exh.301D) publication of news and photographs is
proved by Ketan Ganja (D.W.8), Nimesh Balkrishna Dave (D.W.11)
respectively. It is advanced before me that persons are gathered at the
spot and the said spot was open to public on 2352008 and therefore,
the news was published on 2352008. According to the defence, this is
the same spot, which is appearing in photograph (Art. 22) and according
to the prosecution is the place where from human skeleton is recovered.
I have verified the photograph (Art.22), produced by the prosecution,
with photo (Exh.301D), which is it does not appear to be the same
place in photograph, because in photograph (Exh.301D), one tree is
appearing, which is not in the photograph article (22 colly)., coupled
Judgment -S.C.630-08 -83- Exh.341
with the version of (D.W.11), the witness of accused No.1, itself goes to
show that he has not taken the photograph of the spot, where from
remains of human skeleton were recovered. Even otherwise, after the
recovery, if the spot is made available to access to media by police, it will
not make any difference to the recovery, which was already made from
the spot.
89. It is worthwhile to note here that various newspapers and
TV news contained in the CD (Exh.330) have published news in respect
of this case at the time when the crime was detected. The media went
on publishing, ignoring the consequences of such publication at pre
trial stage. In the present case, certain places and news item,
immediately after the date of revealing of crime, appearing in
newspapers particularly 'MidDay' (dated 2352008, 2452008,
2552008, and 162008 Exh.300, 301, 302, 310 respectively) causes
some confusion in the mind of general public as to description of places
relevant to the crime. Not only that, in RKB show, of Sahara Samay,
contained in CD (Art.330), and other TV channels published/telecast on
2152008 that the body was chopped in 300 pieces, which is far away
from the facts on record. Even it is not the case of the prosecution that
the body was chopped in 300 pieces. It is unfortunate that trial by
Judgment -S.C.630-08 -84- Exh.341
media outraged the general people by publishing news of chopping the
body in 300 pieces. I am unable to understand wherefrom the figure of
300 pieces came. Though it is deposed by Rahul K. Bajaj (D.W.17) that
corrigendum news was broadcast for publishing/telecasting wrong
news of 300 pieces, but it caused confusion rather outraged general
public. The Apex court in R.A. Anand V/s. Delhi High Court reported
in (2009) 8 SCC 106, clearly stated that it would be sad day for the
court to employ the media for setting its own house in order and the
media too would not relish the role of being the snoopers for the court.
Media should perform the acts of journalism and not as a special agency
for the court. “The impact of television and newspaper coverage on a
person's reputation by creating a widespread perception of guilt
regardless of any verdit in a court of law.”
90. Without verifying the facts, media outraged the general
public in this case at pretrial stage. The freedom of speech protected
under Art.19(1)(a) of the Constitution has to be carefully and cautiously
used, so as to avoid inference with the administration of justice and
leading to undesirable results in the matters sub judice before the court.
Though not in this case, but the media trial hampers the investigation as
well as affects the defence of the accused.
Judgment -S.C.630-08 -85- Exh.341
91. It is also argued that the place where from remains of
human skeleton were recovered beside the Kaccha road and it is open
place. In various judgments particularly, which is cited by the ld.
advocate for the accused No.2, where from the recovery was made from
near the platform, which was accessible to general public. So, the
meaning of open space does not necessarily mean that no one should
approach the said place. in broad sense, it should not be a public place,
where from inference can be drawn that the articles which were
recovered from the spot, were easily noticeable to public. It is also been
brought on record that Manor wada is outskirts of Mumbai City and far
away from the High Way. within 2/3 k.m. of the said area, there were
no human habitation and it is isolated place. It may be possible that
some persons may bypass that area. Not only this it is also brought on
record that the recovery was surrounded by shrubs and far away from
wada road, rather towards Kachha road. So, it cannot be said to be a
public open place and accessible to public at large, as interpreted by
various High court and Apex courts, while discussing the issue of
recovery u/s. 27 of Indian Evidence Act. According to the ld. advocate
for accused, the accused No.1 was in custody since 18th May, 2008, and
during this period, the recovery of remains of human skeleton was done
Judgment -S.C.630-08 -86- Exh.341
by police. He seeks to rely on call detail report and according to him call
detail report does not show any incoming or outgoing call to the mobile
of accused No.1 and therefore, she was in custody. Mere fact that there
is no incoming or outgoing call from the mobile of accused, an inference
cannot be drawn that she was in custody since 1852008. As such,
inspite of examination by defence witnesses, particularly (P.W.12), Sunil
Damle, (P.W.13) Sanjay Jagdish Sharma, it could not be brought on
record that Mahesh Tavde had been to Cochin for arrest of accused
No.2, after crime of murder detected and while leaving, he prepared
the letter (Exh.257) on 2052008, which contains the fact of murder of
Neeraj Grover. Likewise, the explanation given by (D.W.18) Rakesh
Maria, the defence witness regarding information received by him,
through Sunil Ghosalkar, readily inference can be drawn that remains of
human skeleton were recovered prior to 2152008 when there is
version of (P.W.5) Usha Ramalu, which is corroborated by Shirsagar
(P.W.44), PI Nalavde (P.W.45), as well as PI Raorane(P.W.47). Though a
attempt was made to create doubt on the recovery of remains of human
skeleton, on 2152008, but the defence could not succeed.
92. Ld. advocate for the accused No. 1 again seeks to rely on
judgment in the case of Shrikant Ramchandra Gomkar v/s. State of
Judgment -S.C.630-08 -87- Exh.341
Maharashtra reported in 2006, Bom. C.R. Cri, 353. This judgment is
also on the same point regarding exclusive knowledge of accused while
giving information, which I have already held that it is not applicable to
the recovery of remains of human skeleton in the present case. Put all
together, the prosecution established that there is recovery of remains of
human skeleton from Manor Wada on 2152008 at the instance of the
accused No.1.
● Recovery of blood stain from flat No.201 and Santro car.
93. The prosecution has examined Ghanshyam Chotelal Yadav
(P.W.14), Mr Lade Asst. Chemical Analyser (P.W. 35), Shirsagar (P.W.44)
and PI Nalavde (P.W.45). It is the case of prosecution that on 2252008,
PI Nalavde along with the panchas and the accused No.1 visited flat
No.201, expert from FSL Kalina were also called,who detected the blood
on the knob of bedroom door, TV Speaker of bed room, curtain of bed
room and outer wall of the kitchen.
94. Ghanshyam Chotelal Yadav (P.W.14) has deposed that while
he was bypassing Malad area on 2252008, a constable took him to 4th
floor of Dhiraj Solitare building 'B' Wing and introduced him to Mr.
Nalavde. There were 4/5 police persons and one lady constable. It is
also brought on record through this witness that there was another
Judgment -S.C.630-08 -88- Exh.341
woman in veil. They all went inside flat No.201. He further deposed
that there was mattress in the hall. Description of flat has been brought
on record through this witness. It has been also brought on record
through witness that inside the bed room, there is a big window having
sliding door, the curtains of pink colour were fixed to the window, and
there was toilet attached to the bed room. It is further deposed by this
witness that two experts stating that they have come from Kalina, came
inside the flat. There were red spot like blood to the outer wall of the
kitchen, the expert collected scrapping on red paper and sample
scraping of the paint was also taken. It is also deposed by this witness
that there were some red lines spot on the lower part of the curtain
inside the bed room, which was taken by expert by cutting the curtain.
There was one red spot like bood on the inner knob of bed room, the
expert collected the blood on one cloth piece and kept the cloth in one
sealed packet. Likewise, one red spot like blood on the front portion of
TV towards the door side was also collected on cloth piece and
accordingly the panchnama was drawn after sealing the blood samples.
PI Nalavde (P.W. 45) has also deposed on the same line in respect of
visinting of expert at flat No.201, of Dhiraj Solitare building and
collecting of blood spot from outer wall of the kitchen, curtains, door
Judgment -S.C.630-08 -89- Exh.341
knob and TV speaker from the bed room of flat No.201. It is further
deposed by this witness that ¾ jeans, Half sleeve tshirt, pillow cover and
pair of shoes were also recovered from Bed room of flat no.201. The
spot panchnama has been brought on record through Ghanshyam Yadav
(P.W.14) which is at ( Exh.94).
95. The first submission on behalf of the ld. advocate for the
accused no.1 on the spot panchnama that the police have planted the
blood in flat No.201, as the police had sufficient time. It is further
argued on behalf of the ld. advocate for the accused no.1 that there are
instances on record to show that the police visited flat No.201, prior to
2252008. According to him, possibility of plantation of blood inside
the flat No.201 cannot be ruled out. To buttress his submission, the ld.
advocate for the accused No.1 took me to crossexamination of (P.W.6)
Kundan Jha, wherein it has been brought on record that in the late night
of 752008, police visited flat No.201, and even thereafter, for 2/3
times, but police did not find blood in flat no.201. According to
prosecution till 2152008 and according to defence between till 20th
May, 2008, the police was tracking on missing complaint (Exh.138)
with regard to missing of Neeraj Grover. The question remains when the
police visited flat No.201, prior to 2252008, then why the blood,
Judgment -S.C.630-08 -90- Exh.341
which was noticed on 2252008 was not noticeable prior to that. I have
gone through the panchnama as well as deposition of (P.W.14). The spot
where from, and in which quantity the blood stain was detected, I do
not think, it was possible for a person to get the blood stain noticed in
normal circumstances, unless it is seen from that point of view. But as
such, prior to 21.05 2008, no one was knowing that Neeraj was
murdered. Therefore, that might be possibility, rather obvious reason
for the police for not inspecting the flat No.201 very minutely and with
the help of expert, prior to 2252008. It is further argued on behalf of
the ld. advocate for the accused No.1 Sharif Shaik that even there is
delay in preparing spot panchnama. According to him, PI Nalavde was
inside the police station till 10 p.m. on 2152008 and it was possible for
him to go on the spot on 2152008 itself for inspecting the scene of
alleged crime. One thing should not be forgotten that, all the
investigating team travelled to and from Manorwada and returned to
Malad police station at about 6 p.m., and after recovery of articles, there
are various procedures to be followed. So, that might be the reason for
not visiting flat No.201 on 2152008. Even for the sake of argument, if
it is presumed that the police had opportunity to visit the spot on
2152008 and in spite of that, they chose to visit on 2252008. This
Judgment -S.C.630-08 -91- Exh.341
fact itself is not fatal to prosecution, unless prejudice having caused to
the accused is shown.
96. Another point which Ld. Adv. for accused no.1 tried to
suggest that the flat was not shown by the accused upon voluntary
statement and it was not reduced into writing, therefore this fact cannot
be admitted u/s 27 of the evidence Act. For this submission the Ld. Adv.
seeks to rely on Judgment in case of Tulsiram Jadhav v/s. State of
Maharashtra reported in 2011 TL MLL 56 where Bombay High Court
has held that recovery made by Investigation Officer at the instance of
the accused, without preparing any document, to show that the said
information was reduced into writing, and thereafter, the dead body
was recovered, the said recovery is not admissible. I am conscious of this
legal preposition, but point here is, of spot panchnama and not of
recovery u/s 27 of the Evidence Act. Spot panchnama is being prepared
to show the situation of the spot of crime and if any recovery is made
from the spot, is admissible as relevant to fact in issue.
(As the court time is over case is adjourned to 2962011)(Dictation of judgment resumed on 2962011)
97. Now, let us turn to the case of prosecution regarding
recovery of Santro car. It is the case of the prosecution that on
Judgment -S.C.630-08 -92- Exh.341
2552008, at the instance of the accused No.1, Santro Car bearing
No.MHO4BQ9966 came to be recovered from Kiran Shriyan (P.W.11)
and the prosecution is relying on this recovery u/s. 27 of Indian Evidence
Act and for that purpose, the prosecution is relying on version of Mohd.
Ayub Mohd. Khan (P.W. 12), Kiran Shriyan (P.W.11) and PI Raorane (P.W.
47). Let us see what the evidence has been brought on record in respect
of this recovery.
98. Through Mohd. Ayub Mohd. Khan (P.W.12), it has been
brought on record that on 2552008, one constable called him and one
Ismile. He took them to PI Raorane (P.W.47. Raorane requested them to
act as panchas to voluntary disclosure. He introduced (P.W.12) to
accused No.1. According to this witness, accused no.1 stated that she will
show the car and the said statement was recorded under memorandum
panchnama (Exh.90A). It is further version of this witness that
accused led police party and panchas to MHADA, 4 Bungalow area, and
there she pointed out a Santro car, bearing No. MHO4BQ9966. On
enquiry, it is revealed that car belongs to Kiran Shriyan, who latter on
came there. From the version of this witness, it appears that the police
seized a big and two small rubber mats, as well as two seat covers, apart
from window protection sheets, and dickey mat under the panchnama
Judgment -S.C.630-08 -93- Exh.341
(Exh.90B).
99. Kiran Shriyan (P.W.11), has deposed that the accused No.1
was introduced to him by his friend Deepak. It is testimony of this
witness that on 752008, at about 12 p.m. accused made a phone call
and requested him to lend his car to her. Accordingly, accused No.1,
along with accused No.2 came to him at 3.30 p.m. Accused No.1
introduced him with the accused No.2; he then handed over key of his
car to Maria and accused No.1 took away the car. It is further evidence
of this witness that she did not return his car till 9 p.m. He then made a
call to her and asked about the car, she stated that she has come to
Malad police station to lodge a complaint of her missing friend Neeraj
and would return the car on the next day. According to further version
of this witness that on the next day at about 10.30, accused no.1 along
with the accused No.2 came to his house and returned his car. According
to his version, at that time the accused no.2 was driving the car. It is
further version of this witness that police constable came to his place on
2552008, he came down; there were other persons apart from Mr.
Raorane and Shivalkar. Accused no.1 was also with them along with
other woman. Police asked about his car, he handed over car to them
police cut seat covers, mats and prepared some writing.
Judgment -S.C.630-08 -94- Exh.341
100. PI Raorane (P.W. 47) has also deposed on the same line
regarding showing of car by accused no.1 and seizing of rubber mats,
seat covers and sun protection sheets. Ld. advocate for the accused no.1
vehemently argued that the ingredient of section 27 is not proved by the
prosecution. According to him, the accused must have exclusive
knowledge and the police should not have any knowledge in respect of
the fact, then only the fact discovered is admissible. I am conscious of
the legal position that the statement made by the accused before the
police is hit by section 24, 25 and 26 of the Indian Evidence Act, and
therefore, is not admissible. Section 27 is exception to section 24, 25
and 25 of the Act of 1872. Section 27 provides “Any fact is deposed to as
discovery in consequence of information received from a person, accused
of an offence, in the custody of police officer, so much information,
whether it amounts to confession or not, as relates distinctly to the fact
thereby discovered, may be proved.” Therefore, word 'distinctly to the
fact' is most important ingredient of section 27. That means, the accused
had exclusive knowledge of the said fact and till the disclosure is made,
the police authority were not knowing the said fact.
101. Ld. advocate for the accused No.1 took me to Press
Conference contained in CD held by the then Jt. Commissioner Rakesh
Judgment -S.C.630-08 -95- Exh.341
Maria (D.W.18) as well as New Art. (Exh.300D) published in newspaper
(Exh.300), which has been proved by (D.W.8). From the interview
contained in the CD, as well as News column (Exh.300D), goes to show
that there is reference of Santro car in news column (Exh.300D), which
also goes to show the name of one Kiran Shriyan, which might be typing
mistake, but fact remains that the police were knowing the Santro car of
Kiran Shriyan, prior to 2552008. Though I.O. Raorane (P.W.47) has
denied the suggestion in respect of interview contained in CD as well as
News published in MidDay News, appearing in (Exh.300D), which is
duly proved by (D.W.18) and (D.W.8 ) respectively. Therefore, I find
substance in the arguments of the ld. advocate for the accused No.1 that
police were already knowing in respect of car particularly of Kiran
Shriyan. It is also not the case that accused No.1 exclusively was
knowing the place where the car is kept. In the case Jaffor Hussain
Dastagir v/s. State of Maharashtra reported in 1971, Mh.L.J., 274,
relied by Ld. Adv. for accused no.1. It has been held that essential
ingredient of recovery u/s.27 information must be given by the accused,
which leads to discovery of facts and should be direct outcome of
information. In the said case, the accused shared the information and
took to police party to the Airport and showed the person in whose
Judgment -S.C.630-08 -96- Exh.341
custody the diamond were lying. In that context, the Hon'ble High Court
has held that as accused has already informed the police that he had sold
the diamond to other accused, however, only to know whereabouts of
other accused, the accused showed the other person with whom the
diamonds were lying. Therefore, Hon'ble High court discarded recovery
on the ground that police was having information shared by accused
earlier that he had given the diamond to other accused. The judgment
of the Apex Court is applicable to this case. As in press conference
Rakesh Mariya, then Jt. Commissioner (D.W.18) had knowledge of the
car, coupled with showing name of Kiran Shreyan (P.W.11) as owner of
santro car in news column (Exh.300D) Hence, the recovery of Santro
car, cannot be said to be admissible u/s. 27 of Indian Evidence Act.
102. Though the prosecution failed to prove that the recovery of
the car was only in pursuant to information shared by the accused no. 1
on 25.05.2008 and hit by sec. 25 of The Evidence Act. However, It is
interesting to note that the prosecution has brought sufficient material
on record through this prosecution witnesses that car was used by
accused Nos. 1 and 2 on 752008. The evidence of Kiran Shriyan
(P.W.11), is evidence on relevant fact, which is admissible u/s. 5 of Indian
Evidence Act . So, there is direct evidence which has been brought on
Judgment -S.C.630-08 -97- Exh.341
record by prosecution regarding lending of car by (P.W.11) Kiran Shriyan
to accused No.1 at about 3.30 p.m. on 752008 and accused No.1
returned the car to Kiran on next day morning. Ld. advocate for the
accused no.1 tried to harp on the contradiction between version of Kiran
Shriyan (P.W.11) and panch Mohd. Ayub Mohd. Khan (P.W.12) to
recovery of seat covers, foot mats and sun protection sheets of Santro car.
Kiran (P.W. 11) as deposed that police cut the seat covers, mats,
whereas, Mohd. Ayub Mohd. Khan (P.W.12) has deposed that the seat
covers and mats were removed from the car. In my view, this is a minor
discrepancy, which is bound to occur. Rather, this discrepancy goes to
show that they are not tutored witnesses. Kiran Shriyan (P.W.11), who
happens to be one of the friend of accused No.1, why he will depose
falsely against the accused No.1 regarding lending of car and recovery of
seat covers, four mats from his Santro car. It is worthwhile to point out
the version of Satish Singh (P.W.10) who has also deposed before this
court that Santro car was lying in the lobby of Dhiraj Solitare building at
about 4.15 p.m. and this witness saw the accused Nos. 1 and 2, while
boarding bags in the car and taking away Santro car. The seat covers,
foot mats and sun protection sheets of Santro Car were sent to FSL
Kalina for DNA Test. Before going to deal with scientific test, let me state
Judgment -S.C.630-08 -98- Exh.341
that the evidence of Shri Lade Chemical Analyser (P.W.35), goes to show
that blood was detected on seat covers and four foot mats.
● Whether the blood stains found in flat No.201 and on seats
covers and foot mats of Santro Car, is of Neeraj Grover?
103. Now, let us turn to most crucial part of case of prosecution.
The prosecution is heavily relying on DNA test, which according to the
prosecution is accurate science for proving carious DNA reports filed by
the prosecution in its case. Prosecution seeks to rely on version of
(P.W.35). Before proceeding to deal with the evidence of (P.W.35), let
us see whether the DNA report is admissible and can be safely relied
upon.
104. DNA means Deoxyribo nucleic acid, which is found in
chromosome of the cell of living being and is blue print of a individual
and the identification is 100% precise. According to this witness
(P.W.35), the DNA is unique in every individual and there is only
exception to this in a case of mono zygotic twins, that too it is found
very rare. DNA collected from a person, can be preserved for many
years in 0.5 molar of edita. So, according to this witness, DNA is
accurate science and STR analysis is a high sensitive conclusive test.
105. Now, let us see what the report speaks about DNA profile of
Judgment -S.C.630-08 -99- Exh.341
blood, detected from flat No.201 and from seat cover and foot mats of
Santro car. According to this witness, he received two packets of scrap
paint of wall, a piece of curtain, and two dry blood on cutting of cloths.
According to this witness, out of two scrapping of print, in one
scrapping, there was blood. Likewise, both cloth pieces were also
containing blood apart with pieces of curtain. He could get DNA from
the blood from scraping of paint and 10 cloth pieces. He could not get
DNA from the blood detected on curtain pieces. He prepared DNA
profile of DNA of blood found on pieces of cloth and scrapping (Art.29
A colly.) According to the further version of this witness, in a DNA
profile of blood on two pieces of cutting cloth (blood extracted from the
door latch of bed room and TV speaker), DNA of male and female was
found. He compared DNA profile of blood of male found on the cloth
( blood extracted from the latch of bed room and TV speaker) and DNA
profile of scraping with the DNA profile of femur bone and teeth and all
58 STR locus of both DNA profile were matching with each other.
Therefore, this witness concluded that blood found in scrapping, blood
sample extracted from the latch of the bed room and TV speaker and
cloth pieces were of the same person.
106. Likewise, he has also done DNA profile of female blood on
Judgment -S.C.630-08 -100- Exh.341
cutting cloth( blood extracted from latch of the bed room and TV
speaker). This witness has also conducted DNA profile of blood sample of
accused No.1. While comparing the DNA profile of female blood
detected on stained cloth piece, ( blood extracted from the latch of the
bed room as well as TV speaker) with DNA profile of accused No.1, DNA
profile of both were matching. Accordingly, he concluded that the female
blood found on latch of bed room as well as TV speaker is of accused
No.1. The report has been brought on record through this witness at
(Exh.155). Further version of this witness goes to show that he could
detect DNA from one rexine seat cover (Art. 28A) and he could not get
DNA from foot mats and other seat covers of Santro car. He conducted
DNA profile of blood found on seat cover (Art. 28A), and while
comparing the DNA profile of seat cover of Santro car (Art.28A) with
DNA profile of Femur Bone and teeth, he concluded vide his report
(Exh.157) that DNA profile of blood detected on rexine seat cover
(Art.28A) and DNA profile of femur bone and teeth are identical and
from one and same source of male origin. So, from the report ( Exh. 155
and Exh. 157) the prosecution has brought on record that the blood
detected in flat No.201 and blood detected from seat cover (Art.28A)
are of a person having femur bone (Art.11) and teeth (Art.46). As I
Judgment -S.C.630-08 -101- Exh.341
have held, while discussing the identity of femur bone and teeth and
concluded that femur bone are of Neeraj Grover. So the report of DNA
profile suggest that the blood in flat No.201 and blood detected from
seat cover and mats of Santro car is of Neeraj Grover.
107. Ld. advocate for accused Nos. 1 and 2 crossexamined this
Expert witness at length. Firstly, they vehemently submitted that the
Expert is not competent to conduct the test. The other submission of the
ld. advocate for the defence was of contamination and degradation of
samples. Various attempts have been made in the crossexamination of
this witness to show that the blood sample, which was received by him
were contaminated and degraded samples. But all the way, this witness
has denied their suggestion and deposed that if the sample is degraded
one, DNA will not be amplified and profile cannot be done and further
this witness goes to deposed that even if DNA sample is degraded, the
DNA test can be done on the intact STR locus, provided six STR locus
are intact. So, the defence could not bring any material in the cross
examination of this witness that DNA profile was not properly done and
there is mistake or human error while conducting DNA test.
108. Ld. advocate for the accused No.1 vehemently submitted
that DNA was done in Government laboratory, which is under the Home
Judgment -S.C.630-08 -102- Exh.341
Department and therefore, there is possibility of influence of Crime
branch Office. Straightly inference cannot be drawn that the Experts
have manipulated the report, as per whims of crime branch Bandra Unit.
It is also vehemently submitted on behalf of the ld. advocate for the
accused that other laboratory situated at Hyderabad or Chandigadh as
well as private laboratories are the standard laboratories for conduct
DNA test. None of the accused came forward before me with request to
repeat DNA test from other laboratories, on which they were relying for
having standard for performing DNA test. The version of (P.W. 35) goes
to show that he has conducted 600 to 700 DNA tests; he has been
trained by CDFD Hyderabad, and Directorate of FSL New Delhi. He has
also written a book on Forensic biology and various research papers.
This witness has also been awarded by all India Forensic Conference in
Kolkata and Hyderabad. So far as submission of the ld. advocate for the
accused No.1 regarding identification of Form of Amarnath Grover and
Nilam Grover. I have already discussed this issue in point No.1. Much
has been argued by the ld. advocate for the accused No.1 that police
have sprinkled the blood in flat No.201 as well as in Santro Car of
(P.W.11) Kiran Shriyan. According the defence, police in order to falsely
implicate the accused persons, planted blood at flat No.201 and in
Judgment -S.C.630-08 -103- Exh.341
Santro Car. No motive has been brought on record for which the police
will implicate these accused, particularly when accused were not known
to the Investigation Officer prior to this case. Apart from it, it was
virtually impossible for the police to get the blood of a person, who is no
more in this world.
109. Ld. advocate for accused No.2 Mr. Wahab Khan also
submitted before me that it might be possible that the blood of parents of
the deceased might have been sprinkled to implicate the accused. As
such, the DNA is accurate science, DNA profile of Amarnath Grover
speaks itself. Had there been blood of Amarnath Grover, sprinkled in
flat No.201, as well as on seat covers of Santro Car, all allel of the blood
detected from the flat No.201 and Santro Car should have been matched
with the DNA profile of blood of Amarnath Grover, which was taken as a
sample. Both allele in all 15 STR locus of DNA profile of blood detected
from TV speaker , door latch of bed room as well as seat covers of Santro
Car, do not match with all allele of control sample of Amarnath Grover.
Rather it shows that one allele is inherited from Amarnath Gover and
one allele from Nilam Grover. This rules out every possible doubt shown
by ld. advocate for accused that the blood of parents of Neeraj might
have been sprinkled in flat No.201 as well as Santro Car. In the case
Judgment -S.C.630-08 -104- Exh.341
before Allahabad High, in the case of Dharmadeo Yadav v/s. Sate of U.P.
Allahabad High Court had an occasion to discuss the DNA finger print
wherein, it was held that STR analysis is sensitive and conclusive test
even on degraded biological sample. Even otherwise if the sample was
degraded or there was contamination, then there would have been
mismatch while comparing with control sample, which is not the case
here. In view of the aforesaid discussion, I have no hesitation to conclude
that blood detected in flat No.201, and seat covers (art.28A) of Santro
car, is of deceased Neeraj Grover and prosecution succeeds in proving
this circumstance.
● Recovery of chopperknife and petrol can, at the instance of the
accused No.2.
110. It is the case of prosecution that after arrest of the accused
No.2, on 2452008, the accused No.2 made voluntary disclosure and
pursuant to which, a chopper was found at Manor Wada. For proving
this circumstance, the prosecution is relying heavily on the version of
(P.W.7) Ravi Ramesh Parab and (P.W.47) PI Raorane.
111. It has been brought on record through (P.W.7) Ravi Parab that
on 2452008, he had visited BMC office, they were taking tea inside a
hotel near BMC office, one police constable took him and his friend to
Judgment -S.C.630-08 -105- Exh.341
Bandra Crime Branch and introduced them to Mr. Rao Rane. PI Raorane
showed them accused No.2. The accused no.2 confessed regarding
murder and stated that he will show the chopper and the place where it
is hidden. The statement was reduced into writing, which was signed by
accused which is at (Exh.72A). It is further version of this witness that
the accused led police party, him and his other friend to Manor Wada.
According to his version, all the way, the accused No.2 was directing for
destination. Thereafter, the vehicle was stopped; the accused took them
inside from the road; some burnt bushes were lying there, accused put
his hand in it and took out a knife like a saw. Said knife was seized
under the panchnama (Exh.72B) and it was sealed with lakhseal by
putting on a card board. This witness has identified (Art.23) as the
same knife, as according to him, it was recovered at the instance of
accused No.2. Raorane (P.W.47) has also deposed on the same line and
corroborated the version of this witness.
112. So far as recovery of kitchen knife is concerned, the
prosecution is relying on the version of (P.W.8) Ranjit Suresh Raje and
again on version of (P.W. 47) PI Raorane. According to the prosecution, a
knife was recovered on 162008 from the water drainage of dry balcony
of flat No.201, at the instance of accused No.2 on 162008. The
Judgment -S.C.630-08 -106- Exh.341
prosecution is also relying on panchnama (Exh.81A and 81B) as well
(Art. 25) knife.
113. (P.W.8) Ranjit Raje who is shown as a panch to recovery and
memorandum of disclosure, has deposed that while he was going to
Lucky hotel at Bandra, he was called by a constable in CID office and
requested him for help. This witness was taken to CID unit No.9 and was
introduced to Raorane who in turn showed him accused No.2.
According to this witness, the accused no.2 stated that he will show and
point out the knife and asked to accompany him. Accordingly,
panchnama was prepared to that effect at (Exh.81A). This witness
signed on the panchnama and accused No.2 also signed on (Exh.81A).
Further testimony of this witness goes to show that accused took police
party and panchas including this witness towards link road and
thereafter towards right turn from the distance of 150 meter earlier to
link road, and near a multistory building. The name of said building was
Dhiraj Solitare. Accused No.2 took them to 'B' Wing of the said building
and went to 4th floor by lift, thereafter to flat No.201 on 4th floor;
thereafter the key of the flat was called from the police station; PI
Raorane opened the latch and lock by key; they all entered in the hall;
accused No.2 took them inside bath room and inside the bath room,
Judgment -S.C.630-08 -107- Exh.341
there was a door and by opening door, accused took them to dry balcony.
Accused no.2 opened the lid of water outlet by his leg, he then put his
hand inside the outlet and took out a knife having plastic grip and steel
blade which was seized under the panchnama (Exh.81B ) and also
sealed with label and lakh seal. The version of PI Raorane (P.W.47) is
also one and the same as of Ranjit Rane (P.W.8), memorandum
panchnama (Exh.81A and 81B) also corroborate the version of (P.W.8).
114. So far as recovery of plastic can (Art.48) is concerned, the
prosecution is relying on sole version of (P.W.47) PI Raorane and also
relied on panchnama (Exh.242A and 242B). According to the version
of (P.W.47) on 262008, accused No.2 wished to make a voluntary
disclosure, therefore, two panchas were arranged. Accused No.2, made
voluntary disclosure to show the plastic can wherein he purchased
petrol. In presence of panchas Memorandum (Exh.242A) was prepared.
The panchas also put their signatures on it. As per version of this
witness, the accused took them to Western Express High way and from
Tell Naka, they took 'U' turn at the instance of the accused No.2, accused
No.2 asked them to stop the vehicle besides the High way. The accused
No.2 alighted from the vehicle and from the bushes, besides the Western
Express High way, accused No.2 took out yellow colour plastic Can
Judgment -S.C.630-08 -108- Exh.341
(Art.48), which was seized under the panchnama (Exh.242B), which
bears signature of accused No.2 and signatures of panchas.
115. It is submitted on behalf of the ld. APP Shri Kini that
prosecution has proved all the three recoveries at the instance of the
accused No.2. Per contra, the ld. advocate for accused No.2 Wahab
Khan has vehemently submitted before me that the prosecution could not
prove these recoveries and according to him, there is a gap of more than
7 days between the recovery of chopper (Art. 23) and knife (Art.25).
According to the ld. advocate for the accused No.2, recovery by the
prosecution, in piecemeal manner, creates doubt on the recovery itself
and goes to show that there are only two possibilities, either the articles
have been planted by the police or recovery was not voluntary and was
under duress and by using third degree method. To buttress his
submission, he seeks to rely on case of Kashinath V/s. State of
Maharashtra, reported in 1995(1) ALL M.R. page 410 wherein the
Hon'ble Apex court has held “that the time lag of 8 days between the
recovery of knife and blood stained clothes at the pointing out by the
appellant clearly suggest that the recovery was not in furtherance of a
voluntary disclosure made by the appellant to the police. But instead,
was the result of duress and third degree method of the police. Had the
Judgment -S.C.630-08 -109- Exh.341
recovery of blood stained clothes were in consequence of voluntary
disclosure made by the accused, the same would have been in close
proximity of the recovery of knife.”
116. Let me mention here that each case depends on its own
facts. With respect to the finding of the Apex court, let me mention
here that in the said case, before Their Lordship, the panch was not
believed for voluntariness of the appellant and in the cross
examination, he had admitted that appellant did not say anything in
their presence. Let us turn to the facts of the present case. It is not the
case where the panch has supported the recovery of knife at the instance
of the accused No.1. Not only that , it is a matter of record that the
accused No.2 was well educated and was serving with Indian Navy as a
Lieutenant. Record also shows that during the trial, whenever, there
was any irregularity on behalf of the prosecution, the accused No.2
promptly objected. It is worthwhile to mention here that when the
accused No.2 was transferred from Aurthur Road Jail Taloja jail, on
account of security, even then he has taken his objection and filed
objection before me at (Exh.134). So, I do not think there is any
possibility of duress or using of third degree method by the police
against him for getting recovery of knife. Not only that, the accused
Judgment -S.C.630-08 -110- Exh.341
No.2 had also filed Writ Petition against the irregularities in jail before
Hon'ble High court. The recovery panchnama of knife (Exh. 81) also
bears signature of accused No.2. All these things, rule out the possibility
of threats by the police, using third degree against the accused No.2.
So far as apprehension of ld. advocate for the accused No.2 regarding
planting of knife is concerned, let me mention here that it has been
brought on record through (P.W.35) Chemical Analyser Lade that blood
was detected on kine (Art.25). All articles which were sent to FSL Kalina
for DNA test, 15 STR Locus were found by (P.W.35) except (Article 25)
knife. His version as well as report (Exh.160) shows that in DNA of the
blood, found on knife (Art.25), he could get only 7 STR locus. Had
there been a planting of knife, by the police, they could have shown by
manipulation, 15 STR Locus in DNA profile of blood on (Art.25) kitchen
knife. Not only this, how blood of Neeraj was found on it. So, the
possibility of any plantation by the police, in respect of kitchen knife
(Art.25) is ruled out.
117. It has been further argued by the ld. advocate for the
accused No.2 that (Art.25) knife is allegedly recorded from the flat
No.201, which was in possession of accused No.1 and accused No.1 was
also having knowledge of the said knife. Let me state that as per version
Judgment -S.C.630-08 -111- Exh.341
of (P.W.8), Ranjit Raje, (P.W.47) IO Raorane, as well as recovery
panchnama (Exh.81B), it appears that knife was recovered from water
outlet of dry balcony of flat No.201. Their version further goes to show
that the accused No.2 took out the knife by removing lid of water outlet.
In these circumstances, knowledge of accused No.1 cannot be readily
inferred, unless it is brought on record. In this context, ld. advocate for
the accused No.2 seeks to rely on Judgment of Bombay High Court in a
case of Shashikant Mahadeo Birje v/s. State of Maharashtra in Cri.
Appeal No.246/04, wherein Their Lordships held that there is no
evidence in respect of ownership of the shop or the shop exclusively
belonging to the accused. Consequently, the presumption that the
accused must be present, who must have placed the weapon, cannot be
drawn.
118. The facts of the present case are different than the case,
which was before their Lordship. In the present case, it is alleged by the
prosecution that accused No.2 was present inside flat No.201, and
according to the prosecution scene of crime is also flat No.201.
Therefore, looking to the facts and circumstances of the present case,
citation relied upon by the accused No.2 is not applicable to the present
case. Therefore, when possibility of duress and plantation and recovery
Judgment -S.C.630-08 -112- Exh.341
of (Art.25) is ruled out, then I do not think, time gap of 8 days between
the recovery of Chopper (Art.23) and recovery of knife (Art.25) made the
prosecution case weak.
119. The ld. advocate for the accused No.2 Mr. Wahab Khan
seeks to rely on Judgment of the Bombay High Court, in the case of
State of Maharashtra v/s. Sundeep Sonu Nehagade in confirmation
Case No.3/2010, Their Lordship held that:
“Knife which was recovered in the crime was a kitchen knife
and the investigation officer, perhaps was aware that knife
could not be the weapon used to cause the fatal head injury.
I.O. perhaps was looking for some other hard and blund
object to connect the head injury and that he claims to have
recovered on 2022008 from flat No.602 at the behest of
accused . For this reason, their Lordships discarded the
recovery.”
Again the facts of the present case are different from the facts in the
case, which was before their Lordship. And it is case of the prosecution
that two weapons were used; one was a weapon of assault and other for
destruction of evidence. Hence two recover, one of knife and other of
chopper, is in consonance with the case of prosecution. Further, ld.
Judgment -S.C.630-08 -113- Exh.341
advocate for the accused No.2, submitted that as it was disclosed by
Joint Commissioner of Police while briefing to Media that knife was
used. Hence it was within the knowledge of police therefore, recovery
of knife is not admissible u/s.27 of Indian Evidence Act. It appears that
there is confusion. Let me state that by making voluntary disclosure,
the place of hiding and particular knife (Art.23) was shown by accused
No.2 by taking out knife, of which the accused No.2 had exclusive
knowledge. Hence, I do not find substance in the arguments of the ld.
advocate for the accused No.2.
120. It is further vehemently submitted by the ld. advocate for
accused that the chopper (Art. 23) is recovered near the place, which
according to the prosecution is the place of recovery of remains of
human skeleton. It is not disputed that distance between the place is
15 to 20 ft. It is submitted by the ld. advocate for the accused No.2 that
when the police party visited to Manor Wada, at the same place on
2152008, then it is highly improbable for the police that they could
not notice the chopper from the nearby place, particularly when the
prosecution alleged to have recovered the chopper from burnt patches
of bushes. To buttress his submission, he seeks to rely on the Judgment
of Dinesh V/s. State of Maharashtra reported in 2010 ALL MR
Judgment -S.C.630-08 -114- Exh.341
wherein, it was held that rediscovery of place of incident, does not come
within the purview of section 27 of Evidence Act. In the said case,
Investigating Officer came to know about recovery of body from
concerned police station in Gujarat. Skeleton of the body was recovered
and post mortem was also performed. Subsequently, thereafter, the
memorandum of panchnama was prepared, at the instance of accused,
discovery of place where dead body was shown and discovered from
flat.
121. In the said case, the place was already known to the
Investigating Officer and again it was shown to be recovery at the
instance of accused. So, both the recoveries were in respect of the same
fact, which is not the fact in the present case. Ld. APP on this point
seeks to rely on Judgment of Apex Court reported in 2011 (Cri) 33 SCC
wherein it is held that merely because the recovery was made from the
same place, which was already visited by the police, that would itself not
dispel the evidence of discovery and recovery. In view of the Judgment
of Apex Court, I do not find any force in the arguments of the ld.
advocate for the accused No.2 that other recovery cannot be made from
the place where from the earlier recovery was made. Therefore, the
recovery of chopper at the instance of the accused No.2, from the place,
Judgment -S.C.630-08 -115- Exh.341
which was visited by the police on 2252008, cannot be said to be fatal
to the present case, particularly when the chopper was taken from the
burnt bushes.
122. It is further submitted on behalf of the defence that even if
reference of chopper and knife is proved, that by itself does not connect
the accused with the crime. I will deal with this submission of the ld.
advocate for the accused No.2 little later. Let us first turn to recovery of
plastic can (Art.38). Admittedly, no panchas have been examined by the
prosecution in respect of this recovery and this recovery is shown from
the place adjacent to Western Express High Way, where from public pass
every day to their houses and it is not isolated place. Further more,
panchnama (Exh.242A) does not bear signature of accused No.2 as in
case of the recovery of chopper (Art.23) and knife (Art.25). For these
reasons, the recovery of plastic can from the bushes, adjacent to Western
Express Highway, do not inspire confidence to belive that the plastic can
(Art. 48) was recovered at the instance of accused No.2. So, in the
absence of signature of accused at Exh.242A, and nonexamination of
panchas create doubt on the recovery of Cane (Art.48).
Homicidal Death:
123. In the present case, the prosecution could recover the
Judgment -S.C.630-08 -116- Exh.341
remains of human skeleton. No post mortem report of deceased Neeraj
is on record. Ld. advocates for the accused Nos. 1 and 2 vehemently
submitted that prosecution failed to prove homicidal death of Neeraj.
It is further submitted on behalf of the ld. advocates for accused Nos. 1
and 2 that no case of homicidal death of deceased Neeraj has been
brought on record, rather not proved by the prosecution. However, the
blood, found from the flat No.21; on seat covers and mats from Santro
Car; on Chopper (Art.23); and knife (Art.25), is proved by the
prosecution as that of Neeraj Grover. If the blood of deceased Neeraj is
found on the knife (Art.25) and Chopper (Art.23) coupled with
photograph(Art.22) which shows the remains of Neeraj i.e. ribcage,
femur bone, skull and other bones. All these articles suggest that Neeraj
met with homicidal death. Apex court in the case of Ramanand V/s.
State of Himalchal Pradesh reported in 1981(1) S.C. page 859
observed that:
“ This means that before seeking to prove
that the accused is the perpetrator of the murder, it
must be established that homicidal death has been
caused. Ordinarily, the “recovery of the dead body
of the victim or a vital part of it, bearing marks of
violence, is sufficient proof of homicidal death of
Judgment -S.C.630-08 -117- Exh.341
the victim.
There was a time when under the old English
Law, the finding of the body of the deceased was
held to be essential before a person was convicted
of committing his culpable homicide. “I would
never convict,” said Sir Mathew Hale, “a person of
murder of manslaughter unless the fact were
proved to be done, or at least the body was found
dead.” This was merely a rule of caution, and not
of law. But in those times when execution was
the only punishment for murder, the need for
adhering to this cautionary rule was greater.
Discovery of the dead body of the victim bearing
physical evidence of the violence, has never been
considered as the only mode of proving the
corpus delicti in murder. Indeed, very many cases
are of such a nature where the discovery of the
dead body is impossible. A blind adherence to
this old “body” doctrine would open the door
wide open for many a heinous murderer to escape
with impunity simply because they were cunning
and clear enough to destroy the body of their
victim. In the context of our law, Sir Hale's
enunciation has to be interpreted no more than
the emphasising that where the dead body of the
victim in a murder case is not found, other cogent
Judgment -S.C.630-08 -118- Exh.341
and satisfactory proof of the homicidal death of
the victim must be adduced by the prosecution.
Such proof may be by the direct ocular account of
an eyewitness, or by circumstantial evidence or
by both. But where the fact of corpus delicti I.e.
“homicidal death” is sought to be established by
circumstantial evidence alone, the circumstances
must be of a clinching and definitive character
unerringly leading to the inference that the victim
concerned has met a homicidal death. Even so, this
principle of caution cannot be pushed too for as
requiring absolute proof. Perfect proof is seldom
to be had in this imperfect world, and absolute
certainty is a myth. That is why, under Section 3 of
the Evidence Act, a fact is said to be “proved”, if
the Court considering the matters before it,
considers its existence so probable that a prudent
man ought, under circumstances of the particular
case, to act upon the supposition that it exists.
The corpus delicti or the fact of homicidal death,
therefore, can be proved by telling and
inculpating circumstances which definitely lead to
the conclusion that within all human probability,
the victim has been murdered by the accused
concerned.”
124. So, from the observations made by the Apex Court, corpus
Judgment -S.C.630-08 -119- Exh.341
delicti or the facts of homicidal death, even can be proved by telling an
inculpating circumstance, which definitely leads to the conclusion that
within all human probability, the victim has met homicidal death. As
stated above, the aforesaid circumstance only leads to the conclusion
that the deceased Neeraj met with homicidal death.
Conspiracy and Motive
125. Now, let us turn to motive part of the case, on which, the
prosecution is heavily relying. As motive and criminal conspiracy are
interconnected with each other and finding on each issue would depend
upon the finding of other issue, therefore I would discussed both issues
together. It is case of the prosecution that accused no.1 was feeling
cheated by deceased Neeraj and deceased Neeraj was bluffing with her
and using her, only on the pretext of providing role in TV serial.
Therefore, accused No.1 was having grudge over deceased Neeraj and
according to the prosecution, this is the motive behind the murder of
deceased Neeraj, by the accused persons. Therefore, accused No.1 and 2
hatched criminal conspiracy to eliminate deceased Neeraj and in
pursuant to criminal conspiracy, on 6.5.2008 accused no.1 called Neeraj
Grover by making phone call to him to her flat at 201/B Dhiraj Solitare.
Thereafter accused no.1 called accused no.2 from Cochin and in morning
Judgment -S.C.630-08 -120- Exh.341
of 7.5.2008 both of them murdered Neeraj at flat no.201/B.
126. According to the ld. advocates for the accused Nos. 1 and 2,
had there been any conspiracy between the accused persons, the accused
would have prepared for murder of deceased Neeraj by preplaning with
the preparation of weapons and by taking deceased Neeraj to isolated
place. It is further submitted on behalf of the ld. advocates for accused
that the circumstances of the prosecution case, itself speak that there is
no criminal conspiracy between the accused persons to eliminate Neeraj.
127. I am conscious of the preposition that the direct evidence to
criminal conspiracy is hardly available and the criminal conspiracy is to
be gathered from the surrounded circumstances of the case and conduct
of the accused person. From the proved circumstance the court can infer
the existence of conspiracy.
128. Admittedly, it is the case of prosecution itself that accused
No.2 is a defence person and he, suddenly flew to Mumbai, without
obtaining leave from Naval Base, Cochin. It was very easy to come with
preparation of murder by bringing weapon with himself. But it is not the
case of prosecution that the accused No.2 had visited Mumbai with
preparation or with any weapon of assault to eliminate deceased
Neeraj. Further more, it is the case of prosecution that accused No.
Judgment -S.C.630-08 -121- Exh.341
called deceased Neeraj at her home by making call to deceased Neeraj, in
the night of 652008. But call details report shows that it is Neeraj who
made call to accused No.1 on her mobile. So, the call detail record is
contrary to the case of prosecution. As per the case of prosecution, after
murder, the accused no.1 went to Hypercity Mall for purchase of Big
Knife (Art.23) and bag for the purpose of disposing body of Neeraj; She
also borrowed car from Kiran Shriyan. These circumstances itself go
contrary to the theory of conspiracy. Had there been conspiracy, accused
would have prepared all thing in advance. Most important circumstance
which goes against the theory of prosecution regarding conspiracy, is
weapon of assault, Kitchen Knife (Art.23). According to prosecution
kitchen knife, was used to kill Neeraj Grover. I am unable to digest the
theory of prosecution of conspiracy. If it is a preplanned murder then
accused would not have used kitchen knife. The accused no.2 who was
then serving in Navy, who could have easily arranged the weapon of
assault to give definite design to conspiracy.
129. Ld. advocate for accused No.1 vehemently submitted that this
cannot be the motive for accused No.1, who had come to Mumbai to
foothold in the entertainment industry. According to the Ld. advocate
for the accused No.1, this is very trivial issue and no person, in all human
Judgment -S.C.630-08 -122- Exh.341
probability, would commit murder. Ld. advocate for accused No.2 also
vehemently submitted that the prosecution has come up with false case
of motive. Again, it has been brought on record that the accused No.1
had visited Mumbai in the last week of April, 2008. From the record, it
appears that friendship of accused No.1 and deceased Neeraj were only
of 10 days old and if according to the case of prosecution, deceased
Neeraj was trying for role in TV Serial for accused No.1, then why in the
passage of only a week or fortnight, accused no.1 would get frustrated,
when usually it takes considerable time to get a role in TV serial. Very
important aspect of the case is that the prosecution has not brought
anything on record to show the grudge of accused no.1 over Neeraj,
rather prosecution came with a case of intimacy between accused no.1
and Neeraj. Not only this, the Ld. advocate for the accused No.1 took me
evidence in respect of Press Conference, which is proved by defence
through (P.W.18) Rakesh Maria. In his interview dated 21.5.2008 during
investigation process, he briefed media, the case as of triangular love
story. Apart from it, the theory of conspiracy of prosecution has failed.
Therefore looking to the circumstance of the case, the weapon of assault
i.e. kitchen Knife, the theory of motive which is brought by the
prosecution does not seem to be probable. Pursuant to which, theory of
Judgment -S.C.630-08 -123- Exh.341
criminal conspiracy, which is put forward by the prosecution, only on
the call details between the accused No.1 and 2 on 652008 fails. Had
there been plan to eliminate deceased Neeraj, in pursuance to criminal
conspiracy between the accused No.1 and 2, then why accused No.2
would have called on the mobile of deceased Neeraj. Therefore, I find
substance in the arguments of Ld. advocates for accused Nos. 1 and 2
that the accused No.1 had no motive for murder of deceased Neeraj and
there was no conspiracy between the accused Nos. 1 and 2.
130. Now, let us see whether the circumstances, which are
brought on record by the prosecution would lead to the conclusion that
deceased Neeraj was murdered by both the accused or any one of them
and whether failure on the part of prosecution to prove the motive and
conspiracy, affects the case of prosecution.
(As the court is over, case is adjourned to 3062008.)(Dictation of judgment resumed on 3062008).
131. To complete the chain or form the chain of circumstances, the
prosecution has examined Vinod Kumar Mishra (P.W.13) Dhiraj Kukar
Shukla (P.W.15) and Kamlesh Premchand Jain (P.W.16). The
prosecution has also examined Vivek Jyotibhushan Tiwari (P.W.19) and
Vaishali More (P.W.20) to prove the visit of the accused No.1 and
Judgment -S.C.630-08 -124- Exh.341
purchase of Big Knife (Art.23). According to the prosecution, the
accused No.1 with intention to cause disappearance of evidence of
murder of Neeraj Grover, visited Hypercity Mall and purchased curtains,
room freshener and bread knife for chopping the body of deceased
Neeraj.
132. It has been brought on record through Vivek Tiwari (P.W.19)
that he was serving as a cashier on 752008 in Hypercity Mall at
Malad. According to this witness, as per system of Mall, a customer has
to select the item and thereafter has to come to the cash counter; he has
to show articles purchased to the cashier; the cashier then makes entry
in the computer on the basis of barcode; the amount automatically
enters as per barcode. According to this witness, a girl came to his
counter at about 12.30 p.m.; she took bedsheet of maroon colour and
came to cash counter and showed those articles to him; he then scanned
barcode of the said articles, however, the girl returned comb; thereafter,
this witness has prepared bill for the amount of Rs.599/. According to
this witness, said amount was paid by the said girl by using debit card of
HSBC bank. This witness has identified the said girl, as accused No.1 in
the dock. According to the prosecution, this witness has also identified
accused No.1 in TI parade dated 1462008 conducted by (P.W.23)
Judgment -S.C.630-08 -125- Exh.341
Sharad Vichare.
133. From the mouth of (P.W.20), Vaishali More, it has been also
brought on record by the prosecution that on the same day, the accused
No.1 purchased traveling bag, room freshner, curtains and bread knife,
having bar code of 100000432. It is deposed by (P.W.20) that in the
afternoon, one lady came to cash counter to pay the amount of the
articles, which she purchased. According to deposition of this witness,
accused No.1 purchased curtains of pink color, bread knife, luggage bag
and room freshner ; total amount of said articles was Rs.1776.
Accordingly, she prepared bill. she gave her Rs.2000/ and this witness
had to pay Rs. 224/ after deducting bill amount; but as there was no
change, she asked for 4 rupees change; on this point, the lady customer
told her that 'this is all nonsense'. This witness however took change
from adjacent counter and gave her Rs.224. This witness also identified
the said lady as accused No.1 in the dock. According to the prosecution,
this witness identified the accused no.1 in the test identification parade
dated 1462008.
134. The defence has initially disputed the visit of accused No.1
to Hypercity Mall, however, by examining (D.W.3) Maria Vironica
Susairaj, It has been brought on record that on 752008, she had been
Judgment -S.C.630-08 -126- Exh.341
to Hypercity Mall along with (D.W.3) her sister Maria Veronica Susairaj.
HDFC Bank swapping slip of Hyper City Mall (Art.40) also goes to show
that there was purchase for Rs.599/ on Debit Card
no.4346765087879915 of HDFC Bank. HDFC Debit card
no.4346765087879915 has been brought on record (Art.42), which
bears name of Accused no.1. This card Admittedly belongs to Accused
no.1. Therefore the version of Vivek Tiwari gets corroboration from
HDFC swap Slip of Hypercity Mall (Art. 40) that on 7.5.2009 at about
12.30 P.M. accused no. 1 visited Hypercity Mall. The prosecution has
also produced the copy of invoice of Hypercity Mall, which is been
regularly maintained by Hypercity Mall. The Invoice was also brought
on record as (Art.41), which has been issued in the course of business by
Hypercity Mall, which is admissible u/s. 32 of Indian Evidence Act.
Therefore, this bill also goes to corroborate the version of (P.W.20)
Vaishali More that the accused no.1 purchased Bags. It is also argued on
behalf of the ld. advocate for the accused No.1 that it was not possible
for Vaishali More to identify the accused because usually, there used to
be various customers who visit the mall everyday, but examinationin
chief of this witness goes to show that there were exchange of words
between this witness and accused No.1. This might be reason for the
Judgment -S.C.630-08 -127- Exh.341
witness to identify the accused no.1. The TI parade dated 1462008 of
accused No.1 is also disputed and (P.W. 23) has been crossexamined at
length to show that no identification parade was conducted in presence
of these witnesses.
135. The accused No.1 has examined (D.W. 2) and brought on
record the jail register of Byculla jail, where, according to (P.W.23), test
identification parade was held. Bare perusal of this register goes to show
show that there are entries in respect of entrance of Sharad Vichare
(P.W.23), witnesses to memorandum panchnama as well as entrance of
Vivek Tiwari (P.W. 19) and Vaishali More (P.W.20) inside jail. So, this
document rules out any possibility of not conducting TI parade in
presence of panchas. Much has been argued on this aspect by the defence
that TI parade was not conducted before the panchas, rather Sharad
Vichare (P.W.23) was crossexamined at length only on panchas, but at
the end of day, the entries in Jail Registers (Exh.285) washed the entire
cross of Sharad Vichare (P.W.23) by advocate for the accused No.1 in
respect of the panchas to TI Parade.
136. Prosecution has also examined Rajendra Bagwani, employee
of Hypercity Mall. He had produced before the police chopper (bread
knife ) having barcode 100000432(Art.43). According to this witness, in
Judgment -S.C.630-08 -128- Exh.341
Hypercity Mall, the article having bar code No. 100000432 is a bread
knife. It will be worthwhile to note here the evidence of Rajendra
Ramchandra Malve (P.W.36) Asst. Chemical Analyser of FSL Kalina to
whom (Art. 23) chopper and (Art.43), sample chopper were sent for
clinical examination. It is deposed by this witness that after analysing,
he found hue(appearance) physical dimension and composition of
metal and both Big knife(Chopper) (Art.23) and sample chopper(big
Knife) (Art. 43) are one and same by report dated 2162008 (Exh.170).
Therefore, bill of Hypercity Mall(Exh.110) of big knife (Art.23), the
version of (P.W. 36) Malve also corroborate version of (P.W.20) Vaishali
More that the accused No.1 made purchase of sport bag, bread knife,
chopper, room freshner and curtains from Hypercity Mall on 752008.
137. It is also the case of prosecution that after returning from
Manor, the accused No.1 went to the shop of Kamlesh Premchand Jain
(P.W.16), who deals with mattresses. It is brought by the prosecution
that on the next day, the accused Nos. 1 and 2 visited shop of Kamlesh
Jain (P.W.16) for selection of cloth of mattress covers. Kmalesh Jain
(P.W.16) has testified that when he was at his shop, which is also at
Chincholi Bunder road, one girl came to his shop for change of cover of
mattresses. He told the said girl to give her name and address; she
Judgment -S.C.630-08 -129- Exh.341
insisted to send a person with her and she will state about the work to
said person. Therefore, on his directions, Sadikram and Mehboob went
there and brought two mattresses, both had no covers. It is further
version of this witness that on 852008, at about 11 to 11.30 a.m., said
lady again came to his shop, a young smart boy was with her; they
inquired about the work of two mattresses, both had discussion and they
selected cloth for preparing the covers. Lady stated her name as Maria
and address as B201, Dhiraj Salitare and accordingly he told to write
her and address to his orderly. This witness has identified in the court
the said lady and a young smart boy as accused Nos. 1 and 2 respectively.
This witness has been crossexamined by defence, much on the point of
insertion of entry (Exh.98) in order book (Art.39) at the instance of
police. I have held that the entry (Exh.98) does not appear to be
inserted latter on. Much has been argued on the point of TI parade, but
in view of earlier reasons, on the same point, I do not find substance in
the arguments of the ld. advocate for the accused No.1 that TI parade
was not properly conducted. Not only that, the entry at (Exh. 98) in
order book (Art.39) also corroborate the version of Kamlesh Jain
(P.W.16).
138. In order to show that the accused attempted to cause
Judgment -S.C.630-08 -130- Exh.341
disappearance of evidence and to complete the chain of circumstances,
Dheeraj Shukla (P.W.15) has been examined. Through this witness,
accused No.1 got the passage painted to conceal the blood spots
appearing on outer wall of kitchen. This witness has testified that he
knows the accused No.1. The evidence of this witness is already
discussed with the conclusion that accused No.1 got flat through this
witness from Estate Agent Sandesh Shirke (P.W.23). According to this
witness, he is painting Contractor and he helped the accused No.1 in
getting flat No.201 at Deeraj Solitare. Let us see what this witness has
deposed on the incident of 752008 and 852008. According to this
witness, at about 9 to 9.30 p.m., on 752008, accused No.1 made
phone call to him and showed her wish to paint flat No.201. She also
told him to come with labourers and painters on the next day.
Accordingly, he and his painter Mohd. Shaif went to the flat on the next
day at about 10 to 10.30 a.m.; a gril was there inside the flat; she left the
flat and went to other flat on the same floor. A boy of 2526 years old
was in the flat. After talking to accused No.1, the amount of the painting
was fixed. Accused No.1 told him that bed room should be painted first.
This witness has identified the boy who was present in the said flat as
the accused No.2 in the dock. It is further testimony of this witness that
Judgment -S.C.630-08 -131- Exh.341
on entering in the bed room, he found some black spot on the wall and
on outer wall of bath room. It is further testimony of this witness that he
asked Maria as to the spots, as the flat was recently given to her and the
spots were not there; Maria gave explanation to him that spots occurred
while shifting the articles.
139. It is submitted on behalf of the ld. advocate for the accused
Sharif Shaikh that witness is planted by the police to complete the chain
of circumstance. Let me state that this flat was taken by accused No.1
with the help of Dheeraj Shukla (P.W.15). Not only that, his version is
corroborated by Mayuri Prajapati(P.W.2), who happens to be neighbor
friend of accused No.1, as she in her deposition, has deposed that when
on 852008, she visited the flat of accused No.1, the painter arrived
there. Though it has been brought on record that there is some
omission in respect of word 'painter' and 'painters' I do not think that
said omission is of much significance to discard the testimony of Mayuri
Prajapati (PW.2) and Deeraj Shukla (P.W.25), and there is no reason
why this witness will testify falsely. Hence, I do not find force in the
arguments of the ld. advocate for the accused No.1 that this witness
cannot be believed.
140. Let us turn to other witness, which has been examined to
Judgment -S.C.630-08 -132- Exh.341
connect the accused No.2 for causing disappearance of evidence of
killing of deceased Neeraj and to complete the chain for establishing the
charges of murder against the accused Nos. 1 and 2. It is the case of
prosecution that while proceeding to Manor Wada, the accused No.2
purchased petrol from Vinod Kumar Ram Mishra(P.W.13); likewise, it is
further case of the prosecution that accused No.2 also purchased lighter
from Amar Bahadur Yadav (P.W.22). Let us see what has been brought
on record through deposition of this witness.
141. According to Vinodkumar Ram Mishra (P.W.13), he works at
Petrol Pump of Patkar brothers at Lokhandwala Andheri (East) and he
used to fill petrol in the car and used to collect money from the customer.
He was on duty on 752008 from 8 a.m. to 8 p.m.; a person aged about
25 to 26 years of age, came to Petrol pump at about 4 to 4.30 p.m.
having a plastic can with him; he told this witness that his vehicle is
lying 4/5 k.m. away and petrol is over, and therefore, he requested him
to give him petrol in his plastic can. Initially, he refused, however, said
person showed his identity card and stated that he is a big officer from
Navy and his wife is sitting in the car; therefore, on his request, he
delivered 5 liter petrol to him in a plastic can. This witness has
identified the said boy as an accused No.2 sitting in the dock and as per
Judgment -S.C.630-08 -133- Exh.341
memorandum panchnama; this witness has also identified the accused
No.2 in TI parade held in Aurthur Road Jail, before Sharad Vichare
(P.W.23). This witness has been crossexamined at length and in the
crossexamination, this witness stood with the reasons of identifying the
accused No.2, as he showed his identity card. It has been suggested to
this witness that the identity card cannot be boarded in wallet. But apart
from the suggestion, nothing has been brought on record. Rather his
version gets corroboration from Mrs. S.A. Shinde (P.W.37), Assistant
Chemical Analyser, who examined the articles which were recovered by
the police from the place, where from the remains of skeleton were
recovered on 2152008, at the instance of accused No.1. Her testimony
and report (Exh.176) goes to show presence of petrol residues on all
articles, which were recovered from the spot. Though an attempt has
been made that after catching fire, it will not be possible to get the
residues of petrol on the articles but this witness has denied the
suggestion.
142. Another submission, which is made by the advocate for the
accused Nos. 1 and 2 is that, his name was published in MidDay
Newspaper dated 2752008 in (Exh.302B). So, according to defence,
the prosecution was knowing the name of witness on 2752008 and his
Judgment -S.C.630-08 -134- Exh.341
statement is recorded, much after 2752008. Sum and substance of the
arguments of the ld. advocate for the accused is that there is delay in
recording statement of this witness. First of all, the names appearing in
the news column are different, and I doubt the complete authenticity of
news. Secondly the statements of Kiran Shriyan (P.W.11) , and Kamlesh
Jain (P.W.16)are recorded on 25.5.2008 i.e. within 4 days. Even
otherwise no prejudice is shown to have been caused to the accused and
this witnesses were available for crossexamination, their versions gets
corroboration from the circumstances. Rather in a case State of U.P. V/s.
Satish (supra) relied by the accused no.2, the apex court held that if no
explanation is sought from the witness regarding delay in recording the
statement of the witnesses, the defence cannot get help of the said
situation and defence in specific term has not sought explanation for
delay in recording the statement of this witnesses, from
PI Raorane (P.W.47).
143. Another witness Amar Bahadur Yadav(P.W.22) has deposed
that he runs a Panshop at Mumbai Ahmedabad Highway one k.m. away
from Telnaka, Wade Road; he used to sell Panbidi, cigarette, lighter and
other beverage. He used to open his shop at 8 a.m. and used to close at
8 p.m. Further testimony of this witness shows that on 752008, he was
Judgment -S.C.630-08 -135- Exh.341
sitting in his shop between 6.30 to 7 p.m.; one person aged about 25/26
years came and demanded lighter. This witness asked him to wait for 5
minutes as he had to search lighter; thereafter this witness gave lighter
to the said person. According to this witness, he had to search the lighter
because, it was the last piece of lighter in his shop. This witness also
identified accused No.2 as the same person, who had purchased lighter
from his shop on 752008. Memorandum panchnama dated 572008
also goes to show that this witness identified accused No.2 in TI parade.
This witness has been crossexamined on the point of memory. This
witness remains firm with the explanation that it was a last piece of
lighter with him and therefore, he made accused No.2 to wait for 5
minutes. This is the reason shown by him to identify the accused No.2.
This witness was not knowing accused No.2 prior to 752008 and there
is no reason why this witness will depose against the accused No.2.
Another possibility, which the advocate for accused No.2 apprehends that
at the instance of police, this witness has been planted. Inference
cannot be drawn readily. Why the police will implicate the accused No.2,
particularly when the accused No.2 was not known to the police. No
motive of the police for false implication has been brought on record.
Therefore, I do not find substance in the arguments of the ld. advocate
Judgment -S.C.630-08 -136- Exh.341
for accused No.2, and by crossexamination, the testimony of this
witness is not shaken. Hence, inspires confidence of the court.
144. Now, let us summarize the circumstances, which the
prosecution was able to prove:
● the relationship between the deceased and accused No.1;
● The concern of accused no.1 with flat No.201 in DhirajSolitare building;
● Visit of deceased Neeraj Grover at flat No.201 in the nightof 652008;
● Talk between the accused Nos. 1 and 2 on 652008;
● Exchange of calls between accused No.2 on mobile of deceased Neeraj;
● Accused No.2 suddenly flew to Mumbai, without obtaining leave from Navy Base;
● Visit of accused No.2 to flat No.201 in the morning of 752008;
● Putting the bags in Santro car at the lobby of Dhiraj Solitarebuilding;
● Recovery of remains of deceased Neeraj at Manor at the instance of accused No.1;
● Finding of blood stains of deceased Neeraj in flat No.201as well as in Santro car;
● Recovery of chopper at the instance of the accused No.2 and finding of blood of Neeraj on chopper;
Judgment -S.C.630-08 -137- Exh.341
● Recovery of weapon of assault kitchen knife (Art.25) at the instance of accused No.2 having blood of deceased Neeraj.
145. So, let us see whether all these circumstances, along with the
deposition of prosecution witnesses, Vindo Mishra (P.W.13),
Dhirajkumar Shukla (P.W.15), Kamlesh Jain (P.W.16), Vivek Tiwari
(P.W.19), Vaishali More (P.W.20) and Ajaybahadur (P.W.22), completes
the chain of circumstances, whereby the only inference in respect of
guilt of accused persons can be drawn. From the aforesaid
circumstances, if they all put together, one thing is crystal clear that
deceased Neeraj died at flat No.201, of Dhiraj Solitare building.
Likewise, the circumstances that blood of Neeraj Grover was found in
Santro Car; Keeping bags in Satnro car by the accused no. 1 and 2;
Santro car was used by the accused no. 1 and 2; and remains of Neeraj
were recovered from Manor Wada at the instance of the accused No.1;
coupled with version of (Prosecution witnesses No.13,15,16,19, 20 and
22), the only inference which can be drawn is that the accused Nos. 1
and 2 with intention to cause disappearance of body of deceased Neeraj,
took the body of deceased Neeraj in Santro car and the body was set on
fire at Manor Wada. So the circumstances unerringly pointing towards
the guilt of the accused and rule out any other hypothesis of causing of
Judgment -S.C.630-08 -138- Exh.341
disappearance of evidence by the accused no. 1 and 2 .
146. Let us turn to the incident, and visualise as to what must
have transpired in flat No.201. I have already held that the deceased
Neeraj died in flat No.201. Presence of accused no. 1 and 2 in falt no.
201 is also proved by the prosecution. It is also proved that the accused
no.1 and 2 also caused disappearance of evidence from flat no.201 and
attempted to dispose off the body of Neeraj Grover at Manor. At this
juncture, the ld. advocate for accused No.2 Mr. Wahab Khan vehemently
submitted that the prosecution has not proved the time of death of
deceased Neeraj and according to him, there may be one hypothesis that
Neeraj might have been murdered prior to arrival of accused No.2 at flat
No.201. Admittedly, in the cases which rest on circumstantial evidence,
all the other hypothesis are to be ruled out.
147. Let us see from this angle whether Neeraj has been killed by
the accused No.1, prior to arrival of accused No.2 in flat No.201,
Admittedly, in the cases of murder, motive plays an important role. As I
have already held that the accused No. 1 had no motive to kill deceased
The accused No.1 had no reason to kill deceased Neeraj. Through
Nishant Lal (P.W.9), the intimacy between the accused and deceased
Neeraj has been brought on record by the prosecution. Rather call detail
Judgment -S.C.630-08 -139- Exh.341
report of mobile of deceased Neeraj (Exh 216), goes to show that
accused No.1 herself did not call Neeraj, but Neeraj on his own visited
her flat. Coupled with a fact that the accused no.1, who is a lady, was
alone with Neeraj who had plenty of brawn (good physical strength)
than accused no.1, it would not be possible for Accused no.1, a girl of 25
years old, by her feminine and with a feeble body, to kill Neeraj Grover.
Rather, call detail report (Exh.216), goes to show that accused No.2
made a call on mobile of deceased Neeraj. Further version of Ajay
Shyam Pande (P.W.27), goes to show that when he returned from get
together, the accused no.2 was upset and nervous. As I have ruled out
the possibility of criminal conspiracy, but most important circumstance
which deposed by Ajay Pande (PW 27), that after phone call with his
fiancee, the accused no.2 was upset and suddenly the accused No.2
booked his ticket at 11.30 p.m. on 652008 for Mumbai, and inspite of
request by Ajay Shyam Pande (P.W.27), to go after taking proper leave, as
accused no.2 wanted to meet his fiancee, accused no.1, immediately.
The accused No.2, suddenly flew to Mumbai in that night itself. A
Defence Personnel, is expected to be obedient and have discipline. In
spite of having knowledge that a disciplinary action can be taken against
him, he flew to Mumbai, without obtaining leave. The accused No.2, who
Judgment -S.C.630-08 -140- Exh.341
went against the wishes of his parents, to get marry with the accused
No.1. This is obvious reason for accused No.2 to fly to Mumbai. The
only hypothesis, which appears in my mind is that after talk on phone
with accused no.1, accused no.2 came to know that an unknown person,
is with the accused no.1, in the late night in her flat and accused No.2
got upset.
148. Further circumstance that recovery of knife at the instance of
accused No.2 is also very material. The prosecution claims exclusive
knowledge of the accused no.2 as to place of knife(Art.25), the weapon
of assault. As such, the accused No.1 had no motive and there was no
conspiracy between the accused No.1 and 2 to eliminate Neeraj. The
circumstance that the accused no.1 allowed Neeraj, a young boy, to stay
at her flat in night with her, goes to show that the accused no.1 was also
unaware about leaving of accused No.2 from Cochin for Mumbai. The
circumstances also does not establish that accused No.1 even shared
common intention with accused No.2, in killing of Neeraj Grover.
Therefore, the only hypothesis which remains, that after his sudden
arrival at flat No.201, the accused No.2 noticed deceased Neeraj with the
accused No.1 in her flat and committed crime. Thus, the incriminating
circumstances which have been brought on record are overwhelming to
Judgment -S.C.630-08 -141- Exh.341
connect the accused No.2 with killing of deceased Neeraj Grover, and this
is the only conclusion, which is consistent with the guilt of the accused
and is inconsistent with his innocence.
149. It is worthwhile to mention here that Pankaj Shah (P.W.30)
has been examined by the prosecution to prove the confessional
statement of accused No.1. It has been brought on record through
(P.W.30) that on 2752008, accused No.1 was produced before him and
she was prepared to make confessional statement. She was given time of
a day to rethink over her decision to make confessional statement.
Therefore, she was sent to judicial custody for a day. It is further version
of this witness that on 2852008, at about 4.45 p.m. she was again
produced before him for judicial custody and two questions were asked,
which were asked on 2752008 and for that purpose, he again puts the
same question to her. It is further deposed that he noticed that accused
no.1 was not in tense or restless and that after verifying that she was
intending to make voluntary confessional statement on her own and
freely. (P.W. 30) proceeded to record the confessional statement of the
accused. It is further version of this witness that accused No.1 requested
him to record her statement in English. Therefore, English language was
used while recording confession of accused No.1 and accordingly, her
Judgment -S.C.630-08 -142- Exh.341
confession at Exh. (132A) was recorded.
150. It is submitted on behalf of the ld. advocate for the accused
No.2 that this statement of accused No.1, cannot be used against the
accused No.2 for various reasons. According to him, this is not
confessional statement, as it does not disclose the guilt of accused No.1,
therefore it is exculpatory statement of accused No.1. Nowhere, a
confession has been defined. According to the ld. advocate for the
accused No.2, a confession is an admission of a guilt, which is not
appearing in (Exh.132A). It is also submitted on behalf of the accused
No.2 that confessional statement of accused No.1 is not voluntary and is
retracted by accused No.1, therefore, retracted confessional statement
cannot be used, particularly against coaccused.
151. Let us deal with the first submission of the Ld. advocate for
the accused; whether the statement at (Exh. 132A) is exculpatory
statement and whether it amounts to confession or not? Let me re
produce the statement of accused No.1, which is recorded by (P.W.30) at
(Exh.132A):
“ My name is Miss. Maria Joseph Susairaj. On the day
of incident, I was staying at Malad (West). On 6th
May, 2008, I took a flat on rent at Malad (W). I was
Judgment -S.C.630-08 -143- Exh.341
knowing deceased Neeraj Grover since March,
2008. He was my friend. Since March 2008, I was in
contact of him on phone. I had met everyday from
2942008 till the date of incident. On 6th May, 2008,
I was shopping for whole the day for the household
articles for my house. On that day at about 10.30
a.m. Neeraj called me on my cell phone and he had
called me from his house. I had expressed my enability
to meet him on that day because I was tired. At about
11.00 p.m. when I came out from house of my
neighbuor after taking a bath there, I saw that Neeraj
was at the door of my house. I had introduced him to
my neighbour friend Miss Mayuri. We thenentered into
my house. I asked him as to why he came to my
house. He said that he want to give help to arrange
my house with the things purchased by me on that day.
At about 11.30 p.m. I got the phone call from
Mr. Emil Jerom to whom I intending to marry. I told
him that Neeraj is at my home. Mr. Emil gave me
phone call from Cochin. The phone battery of my Cell
phone by that time was discharged. Then Mr. Emil
had called me on the cell phone of Mr. Neeraj. He had
talked with me. I had told Mr. Emile that Mr. Neeraj is
acting very funny on that day. He asked me whether he
should come with me. I told him that after dinner
Neeraj will go. This was happened at about 12.30 p.m.
Judgment -S.C.630-08 -144- Exh.341
Then I had a dinner with Mr. Neeraj at my home. Mr.
Neeraj was busy with his phone call. By that time, I
was cleaning my house. Though Mr. Neeraj was called
by his friends to attend the party, he did not go. I have
also refused to join to him to party of his friends. Mr.
Neeraj had a work in morning at Malad. So he had
requested me to allow him to stay into my house so
that he will attend the work. I said that it is o.k. and
he stayed at my house.
On 7th May, 2008, at about 7.30 a.m. door bell
of my house rang. I had opened the door. I found Mr.
Emil was was appeared at my house. He directly
entered into my house. By that time, Neeraj also
woke up. I followed Mr. Emil from his behind. Mr.
Neeraj had asked me whether Emile is my boy friend.
Mr. Neeraj had recognized him because he had seen
our photographs. Mr. Neeraj was also knowing that I
will get married with Mr. Emil.
Immediately, thereafter, Mr.Emil started giving
fist blows to Mr. Neeraj. Both are started fighting with
other. I could not control them. Both had pushed me.
So, I fell down. At that time, when I got up, I saw that
Emil stabbed Neeraj by means of knife of my kitchen. I
tried to hold the knife stabbing to Neeraj by Emil. I
had also sustained injury on my right hand palm.
Again Mr. Emil pushed me and started stabbing Mr.
Judgment -S.C.630-08 -145- Exh.341
Neeraj by said knife. I saw Mr. Neeraj fell down and
Mr. Emile giving kicks to Mr. Neeraj. I was screaming
by said incident. Mr. Emile closed my mouth and he
also threatened me to kill. He let me on the bed and
raped on me. He never put the knife down. This thing
was happened at about 8.00 a.m. He had also beaten
me and threatened me not to tell this incident to any
one. By this time, Neeraj was found dead. I told Mr.
Emil to take Mr. Neeraj to hospital. He told me that
Mr. Neeraj would not die for 4 to 5 hours. He asked
me to go inside the bathroom and take bath. Then
Mr.Emil came inside the bathroom and again raped
me.
After 11.00 A.M. Mr. Emil had asked me to call
one of the friend of Mr. Neeraj and asked me to inform
him that Neeraj had left my house at 12.30 night and
he has forgotten his cell phone in my house. Mr. Emile
had also told me that I should inform that he should
come to my home and collect cell phone of Mr. Neeraj
from my house.
I had called Mr.Nishant on cell phone of Mr.
Neeraj. He spoke to me and tell him accordingly as
directed by Mr. Emil. Mr. Nishant did not appear to
my house.
Then Mr. Emil had dragged the body of Mr.
Neeraj inside the portion of bathroom of house.
Judgment -S.C.630-08 -146- Exh.341
Mr. Emile then told me to go and purchase bags
and curtains from Hypercity Mall at Malad. He did
not tell me for what purpose he asked me to purchase
these things. He also instructed me to buy a knife,
room freshner. I bought all these 4 things and came
back to my house. When I was away from my house
for buying these things, Mr. Emil was talking with me
on cell phone. When I came at my house, he had
emptied two of my big bags. I had handed over the
knife to him. He asked me not to come inside the
bathroom. He had also emptied all those polythine
bags, which I was having in my home with the things
purchased earlier by me. He asked me to clean the
hall which was blood stained. He asked me whether
any of my friend have any car because he could not
tried to contact his friends for having car.
At about 3.00 p. m., I called my fiend Mr.
Kiran who is staying at Four Bungalows, Andheri (W).
By that time, Mr. Emil had chopped into pieces the
entire dead body of Mr. Neeraj. Mr. Kiran had asked
me on my phone to collect the car by coming at his
house. Myself and Mr. Emil both went to collect the
car by hiring autorickshaw. Kiran had asked me as to
why I want his car. I tell him that Mr. Emile want to
go to his town. So he handed over his car. We took the
car of Mr. Kiran and came to Petrol pump in
Judgment -S.C.630-08 -147- Exh.341
Lokhandwala area. I was driving the said car. When I
was filling the petrol in the car, Mr. Emil got down and
bought two plastic cans. Then he filled one of the can
with 5 litre petrol from the said petrol pump. We then
came to my home. He then put all the things of Neeraj
with chopped pieces of his body inside two big bags and
also torn two covers, mattresses into the pieces. He has
covered it with the bags. He brought all those bags
and put in the car.
He asked me to drive the said car. The car
was driven by me Western Express High way. I was not
knowing the area where I was asked to drive the car.
While driving the car, I had cross 3 Toll post then he
asked me take 'U' turn. Then, I took the car to left
cross road. In between the 3rd and 2nd Toll post of
Western Express Highway. Then I drew the car on
Kachcha road. It was about 7.00 to 7.30 p.m. I had
stopped the car near small piece of land near to the
roadside. He took out all the bags from the car one by
one and carried to 15 meters away from car. On the
Express Highway itself, he get filled another can with
Petrol and also bought one lighter. I only went near to
him to give him the cans of petrol. I came back and
sat in the car. He had poured the petrol over all
these bags and set on fire by lighting it with lighter.
He then returned to car. he sat with me and I drove
Judgment -S.C.630-08 -148- Exh.341
the car till we reached to Express High way. On the
Righway Mr. Emil started driving car. Then we came to
my house. As I had injury to my palm I could not
work, so Mr. Emil had started cleaning my house for
removing blood stains. On the way, he had asked the
shopkeeper of matresses for stiching of mattresses
cover. Two boys from the shop were joined to us and
they took away matress for stiching of covers. We
returned to back out home at about 9.30 p.m. Mr. Emil
asked me to call the broker so that he can arrange for
getting paint the walls of my house. Accordingly, I had
called the broker for getting paint to the walls of my
house.
At about 10.30 p.m. friend of Neeraj Mr.
Nishant called me on my cell phone. He informed me
that Neeraj could not found, so he is worried. He came
to my building to collect the cell phone of Mr.
Neeraj. One Mr. Deepak was also with him. I gave
cell phone of Mr. Neeraj to Nishant. They also asked
me to join them for lodging police complaint about
missing of Mr. Neeraj. I went along with them to
Malad police station, but Mr. Emil remained at my
home. I don't know what complaint was lodged to
police station by Mr. Nishant. My statement was also
recorded at Malad police station. I had made a false
statement at Malad police station because I was
Judgment -S.C.630-08 -149- Exh.341
directed to do it by Mr. Emil. I returned back to my
home with the police office at 3.00 A.M. in the night.
Police officer also met Mr. Emil and asked him to come
in the morning at police station for recording of his
statement.
On 8th May, 2008, in the morning, Mr.
Emil had took my laptop bag, hand bag and one bag
and put the foot mat in the said bag and went to
throw it. All these things were having blood stains. By
8.30 A.M. we went to house ofMr. Kiran and returned
the car to him. I also given the key of house to broker
to paint to my house. By 9.00 A.M. we went to police
station. A whole day, we were at police station till
3.00 p.m. We were again called in evening at police
station. After attending the police station Mr. Emil had
catch the flight for Cochin and left Bombay. I
remained in the police station till next day afternoon. I
had informed to my relatives and my family
members. My brother and sister came to Bombay
from Mysore.
All the way, I had been in contact on the
phone with Mr. Emil till I confessed before the police.
All the while, he was threatened me not to tell
anything to the police otherwise, he will kill me and
also kill himself. I say that Mr. Emil had killed Mr.
Neeraj in front of me. I had also taken the police to
Judgment -S.C.630-08 -150- Exh.341
the places where Mr. Emil burnt the body of Mr.
Neeraj.”
152. It is submitted by the ld. advocate for the accused that from
the statement of the accused No.1, it appears that whatever she has
done, is done under the threats of killing and therefore, it cannot be
termed as an offence. Sum and substance of the arguments of the ld.
advocate for the accused No.2 is that she saved herself from charge of
killing of deceased Neeraj in (Exh.132A). Therefore, the statement is
exculpatory so far as accused No.1 is concerned. Let me state here that
the record shows that accused No.1 had visited Hypercity Mall at about
12 p.m., she purchased articles from Hypercity mall at about 12.30 p.m.
Further, she went to borrow car from Kiran Shriyan (P.W.11). It was
possible for her to run away after leaving flat No.201 or make cry and
take the help of neighbours. After purchasing chopper (Art.23) and
curtains, she returned to flat No.201, and again went to borrow the car
from Kiran Shriyan (P.W.11), and returned to flat No.201. All these
conduct of accused No.1 do not suggest that what she has confessed, is
exculpatory. It is worthwhile to mention here the case of Aghnoo
Nagesia Vs. State of Maharashtra reported in AIR 1966 S.C. page
No.119, wherein Apex court has held that:
Judgment -S.C.630-08 -151- Exh.341
“confessional statement includes not only additional offence, but
also other addition of incriminating facts, relevant to the offence, such as
motive, preparation, absence of provocation, concealment of weapons
and subsequent conduct, throw light on the gravity of offence and
intention and knowledge of the accused.” The court has also observed
that “each and every admission of incriminating facts contained in the
confessional statement is a part of confessional statement.”
153. Another submission of the ld. advocate for the accused No.2
is that when the accused No.1 cannot be connected with the charge of
murder of Neeraj Grover then how her confessional statement can be
relied against the coaccused. Let me state what is the Mandate of section
30 of the Indian Evidence Act, that both accused should be tried jointly
for the same offence, then only confessional statement of coaccused is
admissible against other accused and then only court may take into
consideration such confession. There is no dispute that the accused are
being jointly tried for the offence punishable u/s.302, 201 r/w sec. 120B
or in the alternative 34 of I.P.C.
154. In the case of Prakash Dhawal Khairnar v/s. State of
Maharashtra reported in 2002 (2) S.C.C. page 35, the apex court
held that in identical situation, which is in the present case, arose before
Judgment -S.C.630-08 -152- Exh.341
the Apex court wherein father and son were charged with the offence of
302 r/w 34 of I.P.C. and son made confessional statement that his father
committed murder of his brother and his family, and he has only assisted
his father in causing disappearance of evidence of murder; the Lower
Court convicted both the accused u/s. 302 of IPC, however, Bombay High
Court acquitted son from the charge of 302 and convicted him u/s. 201
by relying on his confessional statement against his father. The matter
went up to Supreme Court, wherein the Apex Court has held that
conviction of father Accused no.1 for the offence for which he was
charged was based on circumstantial evidence, conviction against son
Accused No.2 for offence punishable u/s. 201 was also based on
circumstantial evidence and the circumstantial evidence, which gets
corroboration from confessional statement of accused No.2 son for
connecting the accused No.1 with the crime, could be relied upon, as the
confessional statement was not relied as substantive piece of evidence
and it was used only for lending assurance to prove the circumstance.
The apex court further held that the confessional statement of accused
though exhonorate him from principal offence, and connecting with
minor offence, still it can be relied against him and coaccused. The
Apex Court upheld the Judgment of Hon'ble High Court and certified
Judgment -S.C.630-08 -153- Exh.341
that confessional statement can be relied. In view of the ratio laid down
by the Apex court, (supra), I do not find substance in the arguments of
the ld. advocate for the accused No.2 that (Exh.132A) is not
confessional statement, therefore, the confessional statement of the
accused No.1 cannot be discarded on this ground, if otherwise it can be
relied.
155. Another submission, which the ld. advocate for the accused
Nos. 1 and 2 submitted that the accused No.1 has retracted her
confessional statement by giving suggestion to ld. Magistrate Pankaj
Shah (P.W.30). I have gone through the record, it appears that
suggestion has been put to the witness by accused No.1 that
confessional statement was given under duress and on the threat of
police. Now, question arises before me is whether a retracted confession
can be relied against the maker of it and particularly against coaccused.
Before going to this aspect, let us see whether the confessional
statement was made voluntary ?
156. From the version of Pankaj Shah (P.W.30), which is already
discussed above, goes to show that there is full compliance of section 164
of Cr.P.C. The version of (P.W.30) also goes to show that he has taken all
precautions to search, whether the confessional statement of the accused
Judgment -S.C.630-08 -154- Exh.341
No.1 is voluntary. The circumstances of the case, which have been
brought on record, corroborate with the confession and speaks at
fullest and on material aspect. The fact that the accused no.1 kept mum
for 2 and half years and she did not attempt to make any application
either before the Ld. M.M. when she was produced during remand
application, or before this court, till Pankaj Shah(P.W.30) was examined.
But the confessional statement, also gets corroboration from the
circumstances, which have been brought on record. The following
comparative Table would show that the confession statement is
corroborated by the other evidence and proved circumstance.
Confessional statement Evidence/proved circumstance
On 6.05.2008 Neeraj called accused no.1 Call detail report(Exh216)
Neeraj came to accused no.2 and accused Version of P.W.2 Mayuri
no.2 introduced him to Mayuri Prajapati Prajapati
Call to accused no.1 from accused no.2 Call details repor (Exh.207A).
Battery of her mobile discharged, hence Call Detail Reportcall from accused No.2 on mobile of (Exh.216)Neeraj.
Talk of Neeraj with his friends late night Evidence of PW9 Nishant Lal;
Call detail report Exh. 216
Judgment -S.C.630-08 -155- Exh.341
Arrival of accused no.2 in flat no.201 Evidence of PW.6 Kundan Jha,
Accused took knife of her kitchen Recovery of Knife (Art.25)
Accused no.2 stabbed Neeraj Blood of Neeraj at flat no.201;Recovery of Knife having blood of Neeraj at the instance of A.2
Accused No. 1 tried to hold knife Injury on her right palm; injury while accused No.2 stabbing Neeraj certificate Exh. 100 Evidence of
PW.17 Dr. Shinde
On direction of accused no.2 calling P.W. 9 Nishant Lalto friend of Niraj Grover stating that Neeraj left her flat, leaving his Mobile
purchase of Bag, curtains, Big Knife PW19 Vivek Tiwari; PW 20 Vishali room Freshner and curtain More; Debit card; Bills Hyper
city
Lending Car PW11 Kiran Shriyan
Putting body in bags and putting bags PW.10 Satishsingh and DNA in Santro car report of blood found in Santro
Purchase of Petrol by Accused no.2 PW 13 Vinod Mishra
Visit of Nishant Lal to flat no.201 PW.9, 33, 34 Missing and accompanying with him to Police complaint Exh.138;Herstation for missing complaint. statement Exh.229
Change of Matress PW.16 Kamlesh Jain: Entry Exh. 98 in order book Art. 39
Paint to flat PW 15 Dhiraj Shukla; PW 2 Mayuri Prajapati
157. From the above comparative table it is manifest that the
Judgment -S.C.630-08 -156- Exh.341
confessional statement of the accused no.1 in corroborated by the proved
circumstances to its fullest. The confessional Statement was made within
a week after the crime was detected. It was not retracted by the accused
no.2 for almost two and half years. No material has been brought on
record that it was taken under duress, rather it was made voluntarily.
She was given a day to rethink before making confessional statement.
Not only this at the time of Investigation, the press conference, contained
in CD (Art.49) which was briefed by then joint commissioner, goes to
show that the police during investigation revealed the same theory,
which is mention in the confessional statement. Therefore, the
retraction by accused No.1 is for obvious reason to save herself and co
accused from legal punishment. Very surprisingly, though the
prosecution examined Pankaj Shah (P.W.30) through whom confessional
statement of the accused no.1 is proved, but prosecution went on back
foot and submitted that they do not rely on confessional statement. This
appears to be a deliberate attempt on the part of prosecution to get
severe punishment easily for both of the accused. Accused No.1 also
purposefully retracted from her statement to save herself and accused
no.2. But the court is not helpless and cannot sit as a mere spectator.
Ultimate object of the court is to go to the route of the case and find out
Judgment -S.C.630-08 -157- Exh.341
the truth. Now, let us see whether the retracted confession can be used
against the coaccused.
In the case of Ramprakash V/s. State of Punjab reported in
AIR 1959.S.C. Page 1, The apex court in para 6 has held that :
“It will be clear from the term of this section that where more person than one are bing tried jointly for the same offence a confession made by any one of them affecting himself and any one of hia coaccused can be taken into consideration by the court. The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the coaccused or the confessing accused. Accordingly the provisions of the Evidence Act do not prevent the court form taking into consideration a retracted confession against the confessing accused and his coaccused. Not a single decision of any of the courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a coaccused.”
The apex court further observed that :
“ordinarily, as a matter of prudence and practice, court would not act upon retracted confession to convict a coaccused, without strongest and fullest corroboration in the full sense of material particular.”
158. Ultimately, the Apex court in the said case also taken aid of
retracted confessional statement of the accused against him and co
accused.
159. As I have already held that circumstances, which are brought
Judgment -S.C.630-08 -158- Exh.341
on record corroborate fullest confessional statement of the accused No.1,
therefore, even a retracted confession can be relied on.
160. Now, let us discuss when and in which situation, the
confession of coaccused can be taken into consideration. Section 30 of
Indian Evidence Act empowers the court to take the confessional
statement of the coaccused into consideration. The ratio laid down by
Privy Council in Bhagwan Shahu Case reported in AIR 1949 P.C. 257,
which was latter relied in Kashmira Singh reported in AIR 1952, SC 159,
and is being followed till today in catena of the Judgment by the apex
court. In the case of Bhagwan Shahu, the privy council laid down ratio;
“The proper approach or dealing with the confession is
first to marshal the evidence against the accused
exclude confession altogether from consideration and
see whether if it is believed, conviction could safely be
based on. It it is capable of believe independently of
the confession, then of course it is not necessary to
call confession in aid.”
Privy Council further held that
“But cases may arise where a Judge is not prepared to
act on other evidence, has stand even though believed, it
Judgment -S.C.630-08 -159- Exh.341
would be sufficient to sustain a conviction. In such an
event, the Judge may call in aid the confession and use
it to lend assurance to other evidence and thus fortify
himself in believing what, without the aid of confession,
he would not be prepared to accept.”
161. This principle is followed in series of judgments by the apex
court. In the present case, excluding the confessional statement, the
circumstances, which have been brought on record by the prosecution,
are sufficient to connect the accused No.2 with killing of Neeraj Grover.
Taking into consideration the ratio laid down by Privy Council, and
which is being followed by Apex court, I think aid of confessional
statement can be taken in this case for certification or for lending the
assurance to the guilt of the accused. I have gone through confessional
statement of accused No.1 carefully. The confessional statement goes to
corroborate the circumstances, which have been brought on record to
connect the accused No.1 with killing of Neeraj Grover. The relevant
portion is produced here:
“On 7th May, 2008, at about 7.30 a.m., door bell of my house
rang. I opened the door, I found Emil had appeared at my
house; he directly entered into my house ; by that time
Judgment -S.C.630-08 -160- Exh.341
Neeraj also woke up; I followed Mr. Emil from his behind.
Mr. Neeraj asked me whether Emil was my boyfriend, Mr.
Neeraj recognized him because he had seen our
photographs;
Mr. Neeraj was knowing that I will get married to Mr. Emil;
immediately thereafter, Mr. Emil started giving fist blows
to Neeraj. Both started fighting with each other, I could not
control them, both had pushed me; so I fell down, at that
time when I got up, I saw that Emil stabbed Neeraj by means
of knife of my kitchen. I tried to hold the knife stabbing
Neeraj by Emil; I had also sustained injury on my right hand
palm. Again Emil pushed me and started stabbing Mr. Neeraj
by said knife. I saw Mr. Neeraj fell down and Mr. Emil was
giving kicks to Mr. Neeraj; I screaming by said incident.
Mr. Emil closed my mouth. He also threatened me to kill;
he let me on the bed and raped me; he never put the
knife down; this thing happened at about 8 a.m. He also
beaten me and threatened me not to tell this incident to any
one ; by that time Neeraj was found dead.”
162. Aforesaid part of confessional statement corroborates the
circumstances which have been brought on record by the prosecution
with only hypothesis that accused No.2 killed Neeraj. So the proved
incriminating fact and circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the conclusion that with
Judgment -S.C.630-08 -161- Exh.341
in all human probability the accused no.2 killed Neeraj Grover. The
incriminating circumstances are incapable of explanation of any other
hypothesis than that of guilt of accused no.2.
163. Further part of confessional statement is about causing
disappearance of evidence of killing Neeraj Grover. The circumstances,
which have been brought on record through Satishsingh (P.W.10), Vinod
Mishra (P.W.13), Dhiraj Shukla (P.W.15), Vivek Tiwari (PW19), Vaishali
More (PW20), Ajay Bahadur Yadav (P.W.22) also go to connect the
accused Nos. 1 and 2 for causing disappearance of evidence of killing
Neeraj by screening themselves from legal punishment, which is also
certified by the confessional statement of the accused no.1. Therefore I
have no hesitation to hold that accused Nos. 1 and 2 with the intention
to causing disappearance of the evidence of killing Neeraj Grover,
attempted to destroy the evidence of killing of Neeraj Grover.
164. It is submitted on behalf of the APP that as such, the
prosecution has proved that it is the accused No.2, who stabbed the
deceased Neeraj by means of knife (Art.25). Therefore, according to him
he has committed murder of Neeraj Grover. As against this Ld. Adv. for
accused submitted that even if the case of prosecution is accepted , the
act of the accused comes under exception 1 to Murder . According to him
Judgment -S.C.630-08 -162- Exh.341
for bringing the act within the ambit of section 302, the prosecution has
to prove that accused No.2 had left Cochin with the intention to kill
Neeraj. Let me reproduce the exception 1 to Murder.
Exception 1 to Sec.300 of IPC
When culpable homicide is not murder :
“ Culpable homicide is not murder if the offender,
whilst deprived of the power of selfcontrol by grave
and sudden provocation, causes the death of the
person who gave the provocation or causes the
death of person who gave provocation or causes the
death of any other person by the mistake or
accident.”
165. By careful reading of confessional statement as well as other
circumstances, which have been brought on record, it does not appear to
me that the accused No.2 had premediation to kill deceased Neeraj
Grover. As such, circumstances, which are proved by the prosecution go
to show that the accused No.2 left Cochin suddenly and without any
preparation. It is also not been brought on record that the accused No.2
entered into flat with arms. Rather looking to the weapon of assault,
which is kitchen knife(Art.25), goes to show that accused No.2 had no
premeditation to kill deceased Neeraj. Admittedly, the accused Nos.1
Judgment -S.C.630-08 -163- Exh.341
and 2 were intending to marry each other. The accused No.2 had gone
to the extent of going against the wishes of his parents and decided to
marry accused No.1. The call detail report of deceased Neeraj, goes to
show that in the night of 652008, accused No.2 made a call on the
mobile of Neeraj, which also gets corroboration from confessional
statement that as the battery of the mobile of accused no.1 was
discharged therefore the accused no.1 and 2 talked on the mobile of
Neeraj Grover. It is also brought on record that the accused No.2 and
Neeraj were not knowing each other. Obviously, for a fiance, who came
to know that young boy is in flat with her fiancee, a normal man will
lose control. The confessional statement of the accused No.1 also shows
that incident of stabbing happened in spur of moment. To find a young
man with his young fiancee, that too during odd hours, obviously, for a
fiance, is a provoking situation, to lose his self control. So a prudent
man will lose his self control in the situation mentioned above, and in
this case accused no.2 is a defence personal. Confessional statement
also shows, as soon as Accused no.2 saw Neeraj inside the flat, he gave
fist blow to Neeraj, thereafter scuffle took place between the two and
during that scuffle, accused No.2 took knife from the kitchen of flat
No.201 and stabbed deceased Neeraj. Circumstances, show that accused
Judgment -S.C.630-08 -164- Exh.341
No.2 was provoked by circumstance, (presence of Neeraj with his fiancee
in her flat during odd hour) which was grave and sudden and therefore,
he lost his control. It appears that the accused no.2 was impelled to lose
his control to find a young man with his fiancee's home during odd hour.
166. Admittedly prosecution has not come with a case that the
accused no.2 brought any weapon from Cochin, which he would have
got very easily, being defence personal. Looking to the weapon of crime
which is a kitchen knife (Art.23) and the circumstance brought on
record, particularly when thesis of Conspiracy is failed, I think though
prosecution succeeds in proving culpable homicide, but with lack of
premeditation to kill. Therefore I find substance in the argument of Ld.
Adv. for accused no.2 that the case of accused No.2 falls under section
exception 1 to Murder.
167. It is further submitted on behalf of the accused No.2 that the
case of the accused No.2 may fall in part of 304(II), which provides
lighter punishment than of 304(I). Though there was no premeditation,
but looking to the weapon of assault, which is sharp object; kicks he had
given to decease; and knowledge of the accused no.2 being defence
person; I do not find substance in the argument of Advocate for accused
no.2 that there was lack of intention to kill and I do not think that the
Judgment -S.C.630-08 -165- Exh.341
case of accused No.2 will fall in lesser category under 304(II) of IPC. But
the guilt of accused no 2. is covered u/s 304(I) of IPC and hold him
guilty for offence punishable u/s. 304 (I) and accused No.2 under section
201 of I.P.C. Likewise the prosecution also proved crime against accused
1 to the extent of destruction of evidence punishable u/s 201 of I.P.C. It is
my bounded duty to hear the accused on the point of sentence.
Therefore, I take pause here to hear the accused persons on the point of
sentence.
( As the court time is over, case is Adjourned to 172011 for hearing the accused on the point of sentence.)
(Dictation of judgment resumed on 172011,
168. Heard the Ld. APP Mr. R.V. Kini on the point of sentence. So
far as case of accused Nos.1 and 2 u/s. 201 of I.P.C. is concerned, it is
vehemently submitted by ld. APP that taking into consideration the way
the body of Neeraj was chopped by the accused persons and even the
parents of deceased Neeraj were deprived of body of Neeraj. He prayed
for maximum punishment of seven year u/s.201 of I.P.C. be awarded to
the accused no.1 and 2. It is necessary to reproduce section 201 of IPC.
Section 201 of IPC provides that:
“Causing disappearance of evidence of offence, orgiving false information to screen offender:
Judgment -S.C.630-08 -166- Exh.341
Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment,or with that intention gives any information respecting the offence which he knows or believes to be false,
If a capital offence – shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;If punishable with imprisonment for life – and ifthe offence is punishable with { imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine;if punishable with less than ten years' imprisonment ; and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to onefourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”
169. Ld. APP advanced before me regarding application of sec.
201 of I.P.C. According him, though the accused Nos. 1 and 2 are not
convicted for offence u/s. 302, even then they can be convicted under
first part of section 201 of IPC, which prescribed the maximum
punishment of 7 years. To buttress his submission, he seeks to rely on
Judgment -S.C.630-08 -167- Exh.341
judgment of Apex Court reported in 1974 SCC (Cri.) page 362, wherein
while acquitting the accused from the guilt of 302, the Apex Court still
maintained the conviction of imprisonment for 7 years under first part of
201 of IPC. Taking help of this Judgment, Ld. APP vehemently
submitted that the case before the court is on the same line. According
to him, though the accused are acquitted from section 302, but still they
can be convicted under first part of section 201 of I.P.C. for causing
disappearance of evidence of culpable homicide of Neeraj Grover, with
intention to screen themselves from legal punishment, therefore he
prays maximum punishment of seven years u/s. 201 first part for accused
no. 1 and 2. As against this, the ld. advocates for the accused Nos. 1
and 2 vehemently submitted that the citation, which is relied by the ld.
APP is not applicable to the present case and according to them, only
choice to the court is to take help of second part of section 201. I have
gone through the Judgment of Apex court relied by APP very carefully.
In the Judgment, though Apex Court has not held guilty of the appellant
for offence punishable u/s. 302 of I.P.C. but court still held that murder
was committed. Let me mention here the relevant portion of the said
judgment, wherein the Apex court has observed its opinion of happening
of murder. In para 18 of the Judgment Apex court has observed that:
Judgment -S.C.630-08 -168- Exh.341
“Therefore, although we may hold as we do that this
must be a case of murder, it is not possible for us to
find out conclusively that it was a case of throttling
and of nothing else or that the person who could have
throttled or done some other act, which actually
killed the deceased was the appellant and not his
father or step mother.”
Their lordships further held that:
“ that appellant had taken leading part in disposing of the
body of the murdered woman”
170. With respectful submission to the aforesaid observation of
Apex court, let me state that in the aforesaid case, the Apex court has
held that murder of woman was committed and therefore, the
appellants were convicted under first part of section 201 of I.P.C. But in
the present case, when I have already given finding that the murder is
not proved, I do not think that citation, which is relied is applicable to
the present case. The offence u/s 304(I) punishable with imprisonment
for life or the imprisonment which may extend to 10 years. As such for
proved main offence against accused no.2, the maximum punishment is
imprisonment for life, hence the the case in hand, falls in second
Judgment -S.C.630-08 -169- Exh.341
category of section 201 of I.P.C. for both accused.
171. Let us turn to quantum of sentence under this section. Ld.
APP submitted that the manner in which the accused caused the
disappearance of mutilated body of deceased Neeraj, the accused be
convicted with the fullest conviction provided under that section. As
against this, the ld. advocates for the accused Nos. 1 and 2 submitted as
they are young, hence lesser punishment than 3 years be awarded,
therefore, they did not press vehemently and left to the discretion of the
court.
172. So, maximum punishment in second part is provided for 3
years with fine. Having heard the ld. APP and advocates for defence, and
looking to the manner in which the accused caused disappearance of
mutilated body of Neeraj, in my view, the accused are liable to be
convicted to the fullest imprisonment as provided under second part of
201 of I.P.C. i.e. imprisonment for 3 years. As for fine for this offence is
concerned I will deal it, little latter.
173. Let us turn to the submission of ld. APP on the point of
quantum of sentence to accused No.2 u/s. 304 (I) of I.P.C. Section 304
(1) provides maximum punishment for imprisonment of life with fine. It
is submitted on behalf of the ld. APP that the manner in which the body
Judgment -S.C.630-08 -170- Exh.341
of the deceased was chopped, rather the manner in which the mutilated
body of deceased Neeraj was disposed of, the accused No.2 shall be
awarded with conviction of imprisonment for life. Sum and substance of
the arguments of the Ld. APP that while awarding sentence, the conduct
of accused is to be taken into consideration. He took me to confessional
statement of accused No.1 and showed some relevant portion, on which
he seeks to rely. According to him, when the accused No.1 requested
accused No.2 to provide medical treatment to deceased, accused No.2
avoided. Relying on this part of confessional statement, ld. APP prayed
for fullest punishment provided u/s. 304 (I) of I.P.C.
174. As against this, ld. advocate for accused No.2 Mr. Wahab
Khan has submitted that the accused was serving with Defence Force
and was serving to the nation. He respectfully submitted that accused
cooperated in entire investigation of this case. It is further submitted by
ld. advocate for the accused No.2 that accused No.2 is repenting on his
act. It is further submitted that that the reformative punishment should
be awarded to the accused no.2. Sum and substance of his arguments
are that lighter punishment to the extent of period, which he has already
undergone, should be awarded to the accused no.2. In support of his
argument, for taking lenient view, ld. advocate for the accused No.2,
Judgment -S.C.630-08 -171- Exh.341
relies on various judgments of Apex court. According to him, the accused
No.2 again wants to serve the nation. He also took help of confessional
statement and again he submitted that there was no premeditation on
the part of accused No.2. Let me submit that the accused No.2 has
already been given benefit of the situation that he was not having pre
mediation. Having heard the ld. APP and advocates for the accused
No.2, the manner in which the crime was done and the manner in which
the body was chopped and considering the conduct of the accused No.2,
in my opinion, rigorous imprisonment for 10 years would suffice the
purpose and would meet the ends of justice.
175. At the same time, the parents of the deceased Neeraj should
not be ignored, who suffered mental trauma by loosing their sole son. I
am conscious that nothing will replace Mr. Neeraj to their parents, but at
least in their old age, I think, they should be compensated out of fine
amount and therefore, substantial fine should be awarded to accused
Nos. 1 and 2.
176. So far as flat No.201, in Dhiraj Solitare building Malad (W)
is concerned, the owner of the flat has moved Misc. Application Exh.
333 for handing over her flat, which according to her was given to
accused No.1 and which is sealed by Crime Branch, Bandra Unit. As it
Judgment -S.C.630-08 -172- Exh.341
was given on leave and license basis and accused No. 1 was in possession
at the time of sealing of the flat, therefore, say of accused No.1 is
sought. The accused No.1 has not shown her concern over the flat and
therefore, she has given no objection. As such, no other person is
claiming the possession of flat No.201 and is pointed out to me that the
key of the flat no.201 is with the court as an (article No.9). Therefore,
the possession of the flat, rather key of the flat (Art.9) be given to Smt.
Shivani Jagdishchandra Atri. However She shall execute a bond in a
sum of Rs.2,00,000/ that she will preserve the flat till the appeal period
is over and in case ,if the appeal is filed then, till the disposal of appeal.
Accordingly application Exh.333 is disposed off.
177. In view of the aforesaid discussion, I proceed to pass
following order:
ORDER
1. Accused No.1 Maria Monica Susairaj and accused
No.2 Emile Jerome Joseph are acquitted of the
offence punishable u/s. 302 r/w 120B or 34 of I.P.C.
2. Accused No.2 Emile Jerome Joseph is convicted for
offence punishable u/s. 304 (1) of I.P.C. and to suffer
Rigorous Imprisonment for 10 years and also to pay
fine of Rs.50,000/. In default of payment of fine,
Judgment -S.C.630-08 -173- Exh.341
accused No.2 shall undergo Simple Imprisonment for one
year.
3. Accused No.2 Emile Jerome Joseph is also
convicted for offence punishable u/s. 201 of I.P.C. and to
suffer Rigorous Imprisonment for 3 years and to pay
fine of Rs.50,000/ In default of payment of fine,
accused No.2 shall undergo simple imprisonment for six
months.
4. Both sentences to run concurrently.
5. Accused No.1 Maria Monica Susairaj is convicted for
offence punishable u/s.201 of I.P.C. and to suffer
Rigorous Imprisonment for 3 years and to pay fine of
Rs.50,000/. In default of payment of fine accused No.1
shall undergo simple imprisonment for six months.
6. If the amount of fine of Rs.1,50,000/ is recovered,
it should be given to father of deceased Neeraj as
compensation. This will be in addition to any
compensation, which parents may claim against
the accused by filing Civil Suit.
7. Both accused shall be given benefit of set off
u/s.428 of Cr.P.C. for the period for which they have
already undergone sentence.
ORDER REGARDING DISPOSAL OF THE
PROPERTY.
1. Art.1 garland of Beads (broken Condition) likewise
Judgment -S.C.630-08 -174- Exh.341
chain, Art.2 Chain of decease having pendant of Gajmukh in burnt
condition, if desired by the father of the deceased, may be
returned to him. Otherwise, be destroyed after appeal period is
over.
2. Art.10 pieces of rib cage, Art. 11 femur bone, Art.12 skull
and Art. 46 tooth may be given to the Complainant, Amarnath
Grover for last rites of his son, if he desires, otherwise, they be
destroyed after the appeal period is over.
3. Art. 45 Nokia Mobile N95 be returned to the complainant
Amarnath Grover father of deceased.
4. Art. 7 Nokia N80 mobile, and Art. 8 Nokia Made mobile
phone Model No.1200, and Debit card (Art.42) be returned to
accused No.1 after appeal period is over.
5. Art. 28 colly. rubber mats, sun protection sheets and seat
covers of Santro car and article 28A other seat covers of Santro
car be returned to (P.W.11 ) Kiran Shiryan, if he desires, otherwise
they may be destroyed after appeal period is over.
6. Art. 49 and 50 station diaries be returned to respective police
stations, after appeal period is over.
7. Art.3 Rs.6,500/ in leather wallet of black colour Art.5
(colly) mobile phones of Grey colour and sky blue colour
respectively, Art.6Reliance co. Silver black colour Mobile of LG
RD5340, be returned to Accused No.2 after the appeal period is
over.
8 Art.9 Two keys of flat be returned to owner of flat no. 201,
Smt. Shivani Jagdishchandra Atri, on executing personal bond of
Judgment -S.C.630-08 -175- Exh.341
Rs.2,00,000/ that she shall preserve the flat, till the period of
appeal and in case, if appeal is filed then, till disposal of appeal
filed, if any.
9. Art.4 Identity card of Accused No.2 (IAFZ2015),
Art.7A label of Art.7,
Art.9A label of Art.9,
Art.13Burnt piece of bag,
Art.14Burnt piece of red cloth, partly burnt,
Art.15partly burnt gouge of cloth having red lines,
Art.16 Damage glass perfume bottle,
Art.17Tin bottle(damaged),
Art.18Tin bottle in damage condition and pieces of bottle,
Art.19 (colly)Metal buttons and partly burnt coins,
Art.20Packet containing soil,
Art.21Packet containing soil,
Art.22(colly)7 photos,
Art.23Knife (chopper) with sawteeth,
Art.24 – plastic wrapper of Art.23,
Art.25knife,
Art. 26 wrapper @ label of Art.25,
Art.27 colly. – three wrappers.
Art. 29 colly. Five small packets containing samples and
scrapping,
Art.29AOne sample packet of scraping wall paint, Art.30
One packet & label,
Art.31One pillow cover,
Judgment -S.C.630-08 -176- Exh.341
Art.32 – label of art.31
Art.33Jeans pant (one),
Art. 34 Wrapper @ label,
Art.35 (colly) one pair of shoes,
Art.36 wrapper along with label
Art.37One Tshirt,
Art.38 wrapper along with label,
Art.39Order book (Red colour note book) be returned to
(P.W.16) Kamlesh Premchand Jain.
Art.40Copy of swap receipt of HDFC card,
Art.41Copy of receipt(print out of billing system
dtd. 26.05.08),
Art. 43 colly. knife along with cardboard,
Art.44CD,
Art. 46A wrapper as well as envelopes including chit,
Art.47(colly)duster, partly burnt plastic pieces,
Chain lock,
Art.48plastic Can,
Art.8A label of Art.8, Art. 20A label of Art.20, Art.21A
label of Art.21,
All these articles and Articles, if any be destroyed after
appeal period is over.
As the accused No.1 is convicted for imprisonment for
three years and according to record, she has already
completed her three years imprisonment, therefore, the
accused no.1 is directed to execute P.R. bond of Rs.10,000/
Judgment -S.C.630-08 -177- Exh.341
with one solvent surety in the like amount, to appear before
Hon'ble High Court, in case High court issues notice in
appeal, filed by the State.
It is submitted that furnishing the surety will take
some time, therefore, on application made by
accused No.1, she is allowed to execute P.R. bond of
Rs.10,000/ and cash surety of Rs.10,000/ in lieu of
furnishing surety. Four weeks time is granted to accused
No.1 to furnish surety.
(M.W. Chandwani)
Special Judge & Addl. SessionsDated: 172011. Judge, Gr. Bombay.
Date of Dictation : 27,28,29,30 June 1st July, 2011.
Date of Transcription : 772011Date of signature : Date of delivery to C.C.S. :