MHCC020084612017 Received on :: 25/07/2017 Registered on :: 26/07/2017 Decided on :: 30/03/2023 Duration :: 05 Y 08 M 07 D Exhibit :: C74 Form No.XXXII Part ‘A’ (Title Page of Judgment) [Para 44(i) of Chapter VI of Criminal Manual] Bar code IN THE COURT OF SESSIONS COURT AT GR.
BOMBAY.
PRESENT : SHRI.
A. SUBRAMANIAM, SESSIONS JUDGE, (JO CODE : MH01711) [
Date of the Judgment : 30th March, 2023] Sessions Case No.
0100440 of 2017 CNR No.
MHCC020084612017 FIR/CrimeNo.
FIR No.
176 of 2017 Police Station Vakola Police Station Complainant Name of Complainant The State of Maharashtra, (At the instance of Vakola Police Station, Mumbai) Vs Ambaji Shivaji More Represented By Name of the Advocate Public Prosecutor J.V.Desai, Accused
1. Name with Ambaji Shivaji More all particulars Add : Balganesh Utsav Krida (Accused) Mandal, Indira Nagar, Nirmal Nagar, Khar (East), Mumbai. 400 058. Native Place : Post Masewadi, Taluka Aajara, District Kolhapur. Represented By Name of the Advocate Adv. Shri. Keshav Chavan Part ‘B’ :2 : JUDGEMENT IN S.C.440/2017 [Para 44 (ii) of Chapter VI of Criminal Manual]
Date of Offence 09.04.2017
Date of FIR 10.04.2017
Date of Chargesheet 24.07.2017
Date of Framing of Charges 13.07.2018
Date of commencement of evidence 31.03.2021 Date on which judgment is reserved 18.03.2023
Date of the Judgment 30.03.2023
Date of the Sentencing Order, if any. 30.03.2023 Accused Details Rank of Name of
Date of the Accused Arrest Accused 1 Ambaji Shivaji More 10.04.2017
Date of Offences Whether Sentence Period o Release charged acquitted Imposed Detentio on Bail with or Undergo convicted e during Trial for purpose Section 428, Cr.PC. In Jail U/s.302 Convicted Rigorous imprisonment of IPC for life and fine of Rs.5,000/ (Rs. Five Thousand Only), in default rigorous imprisonment of 06 (six) months, for offence u/s.302 of Indian Penal Code, 1860. :3 : JUDGEMENT IN S.C.440/2017 Part ‘C’ [Para 44 (iii) of Chapter VI of Criminal Manual] LIST OF PROSECUTION / DEFENCE / COURT WITNESSES A. Prosecution : RANK NAME NATURE OF EVIDENCE PW1 Sajid Ali Mohammed Ali Shaikh Panch Witness PW2 Yogesh Vishwanath Langute Complainant PW3 Mohd. Afsar Salim Khan Eye Witness. PW4 Imran Ahmed Sayyed Eye Witness PW5 Dr. Sandeep Ingle Medical Officer (PM) PW6 Pramod Vanshnarayan Singh Witness – Utensils Seller PW7 Tushar Murlidhar Bhagwat Police Witness PW8 Manoj Parshuram Yadav Panch Witness PW9 Dr. Shashank S. Patekar Medical Officer PW10 Nikhil Kalyan Shivalkar Witness – Photographer PW11 Shankar Ramdas Naidu Witness – Videographer PW12 Mohd. Sultan Saifee Witness – Searched Knife from Nala. PW13 Nilesh Pramod SalunkhePatil Investigating Officer PW14 Chandrakant Chavan Chemical Analyzer PW15 Ms. Vijaya Vasant Kudle Chemical Analyzer (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS) B. Defence Witnesses, if any : C. Court Witnesses, if any : NIL NIL LIST OF PROSECUTION / DEFENCE / COURT EXHIBITS :4 : JUDGEMENT IN S.C.440/2017 A. Prosecution : Sr. No. Exhibit Number Description
----------------------------------------------------------------------------------------------------1. Exh.1 Chargesheet.
2. Exh.2 Application filed by accused to meet with parents.
3. Exh.3 Charge framed.
4. Exh.4 Plea of accused.
5. Exh.5 List of Documents.
6. Exh.6 List of Witnesses.
7. Exh.16 Statement of witness Mohammed Afsar Salim Khan recorded u/s.164 CrPC.
8. Exh.17 PW1 Sajid Ali Mohammed Ali Shaikh (Panch Witness)
9. Exh.18 House search panchanama (of accused).
10. Exh.19 Colly. Photo copy of Pan Card and Aadhar Card of accused.
11. Exh.22 PW2 Yogesh Vishwanath Langute (Complainant).
12. Exh.23 Colly FIR alongwith Statement.
13. Exh.24 PW3 Mohd. Afsar Salim Khan (Eye witness).
14. Exh.26 PW4 Imran Ahmed Sayyed (Eye Witness).
15. Exh.28 PW5 Dr. Sandeep Ingle (Medical Officer)
16. Exh.29 Post Mortem Report.
17. Exh.30 Cause of Detah Certificate.
18. Exh.32 PW6 Pramod Vanshnarayan Singh (Witness Utensils Seller).
19. Exh.33 PW7 Tushar Murlidhar Bhagwat (Witness)
20. Exh.34 PW8 Manoj Parshuram Yadav (Panch Witness)
21. Exh.35 Personal search panchanama (of accused).
22. Exh.36 Spot Panchanama. :5 : JUDGEMENT IN S.C.440/2017
23. Exh.38 PW9 Dr. Shashank S. Patekar (Medical Officer)
24. Exh.39 Extract of casualty register of V. N. Desai Hospital.
25. Exh.43 PW10 Nikhil Kalyan Shivalkar (Photographer).
26. Exh.44 PW11 Shankar Ramdas Naidu (Videographer).
27. Exh.45 CA Report No.B2213/17 dated 18.09.2018.
28. Exh.46 PW12 Mohd. Sultan Saifee (Witness searched knife from Nala)
29. Exh.47 PW13 Nilesh Pramod SalunkhePatil (IO)
30. Exh.48 Inquest Panchanama.
31. Exh.23A Report of the informant.
32. Exh.49 Arrest Panchanama.
33. Exh.50 Forwarding letter.
34. Exh.51 Forwarding letter dtd. 11.04.2017.
35. Exh.52 Forwarding letter dtd. 15.04.2017.
36. Exh.53 Forwarding letter dtd. 15.04.2017.
37. Exh.54 Forwarding letter to CA dtd. 24.04.2017.
38. Exh.55 Forwarding letter dtd. 26.04.2017.
39. Exh.56 Forwarding letter dtd. 12.04.2017.
40. Exh.57 Panchanama regarding search of the knife in the stream.
41. Exh.61 Evidence closure pursis filed by prosecution.
42. Exh.62 Statement of accused u/s.313 CrPC is recorded.
43. Exh.P 65/PW14 PW14 Chandrakant Chavan (Chemical Analyzer)
44. Exh. P 66/PW14 Letter dt. 07.09.2012 issued by CP Office.
45. Exh. P 67/PW14 CA Report No.B2428/17, MT No.21975 76/17 dt. 01.08.2017.
46. Exh. P CA Report No.B2117/17, :6 : JUDGEMENT IN S.C.440/2017 68/PW14 MT No.2221920/17 dt. 03.08.2017.
47. Exh. P 69/PW14 CA Report No.B2116/17, MT No.1985556/17 dt. 12.07.2017.
48. Exh. P 70/PW14 CA Report No.B2101/17, MT No.8516/18 dt. 18.04.2018.
49. Exh. P 71/PW15 PW15 Ms. Vijaya Vasant Kudle (Chemical Analyzer)
50. Exh. P 72/PW15 CA Report No.Cy431/17, MT No.19963/17 dt. 13.07.2017.
51. Exh. P73 Evidence closure pursis filed by prosecution. B. Defence : Nil. C. Court Exhibits : Nil. D. Material Objects : Sr. No. Material Object Number Description
1. Art.1 Knife.
2. Art.2 Colly
3. Art.2A Wrapper alongwith Label affixed on article mobile.
4. Art.3 Shirt. (Checks shirt of red and gray colour of accused.)
5. Art.3A Wrapper with Label of Shirt.
6. Art.4 White Baniyan. (of accused).
7. Art.4A Wrapper with Label of Baniyan.
8. Art.5 3/4th Pant. (of accused).
9. Art.5A Wrapper with Label of 3/4th Pant.
10. Art.6 Colly
11. Art.6A Wrapper alongwith Label of Burkha.
12. Art.7 Colly Blood stained soil and simple soil.
13. Art.8 Colly Four photographs of deceased. Mobile Phone alongwith its battery. (Black colour mobile phone of L. G. Company @ Battery) Veil (Nakab). :7 : JUDGEMENT IN S.C.440/2017
14. Art.9 CD.
15. Art.10 Printed Kurta
16. Art.11 Yellow Leggings.
17. Art.12 Green white colour Scarf.
18. Art.13 White colour Brassier.
19. Art.6A Label of Art.6 Burkha.
20. Art.10A Label and wrapper of Art.10.
21. Art.11A Label and wrapper of Art.11.
22. Art.12A Label and wrapper of Art.12.
23. Art.13A Label and wrapper of Art.13.
24. Art.14 Underwear
25. Art.14A Label and wrapper of Art.14.
26. Art.15 Tait (Tawiz).
27. Art.16 Black colour Veil (Burkha).
28. Art.15A Label affixed on Art.15 and Art.16.
29. Art.1A Wrapper @ Label of Art.1 (Knife). Unmarked VPR/MPR : One CD, one photograph of accused & one photograph of deceased/victim, one CD in sealed packet attached to (Exh.63 Application for leading secondary evidence). ORAL
JUDGMENT (Delivered on 30th March, 2023)
1. The accused are being tried for alleged offence punishable u/s.302 of Indian Penal Code, 1860 (in short, "IPC"), in Crime No.176/2017, registered by Vakola Police Station, Mumbai.
2. It is the case of the prosecution that the complainant lodged a complaint contending that he is working as PSI and was deputed at Vakola Police Station, Mumbai. On 09/04/2017 at about 8.00 p.m., he was on duty and at 8.45 p.m., he received information from Police Bukkal No.113589 of Vakola Traffic Department, who came :8 : JUDGEMENT IN S.C.440/2017 to police station with three persons and one another person was caught hold of, brought in the police vehicle. He informed that the person who was brought, has assaulted one lady and slit open the neck of the victim at Hansbrugha Road, near Nursery in Santacruz (E), Mumbai and when he was running away, the police and the persons accompanied him, has followed and caught hold of him. On enquiry with the said person, he disclosed his name as Ambaji Shivaji More and disclosed the name of the deceased as Sofia Mohammed Shoaib Hussain Shaikh. He was taken into custody and informed to the senior officers and further, he went to the place of incident at 20.55 hours. At the place of incident, he found one girl, aged 16 to 17 years, lying in a pool of blood and at that time, the mobile van came there and the victim was taken to V. N. Desai Hospital for treatment, where she was declared dead on arrival. Based on these allegations, the concerned police officer lodged a complaint and accordingly, offence was registered. Further investigation was carried out, spot Panchnama was prepared, the body of the victim was forwarded for postmortem, the samples and other incriminating evidence collected and statements of the witnesses were recorded. On completion of other formalities and investigation, the chargesheet came to be filed before the Ld. Metropolitan Magistrate, Bandra, Mumbai.
3. The Ld. Metropolitan Magistrate by order dated 13/07/2017, committed the case to the Court of Sessions, Gr. Mumbai and accordingly, the matter is allotted to this Court for trial.
4. My Ld. Predecessor framed charge against the accused vide Exh.3.The charge is read over and explained to the accused in vernacular. The accused pleaded not guilty and claimed to be tried. :9 :
5. JUDGEMENT IN S.C.440/2017 To bring home the guilt of the accused, the prosecution examined in all fifteen witnesses and also relied upon various documents in pursuance of the investigation as stated above.
6. As there was incriminating evidence against the accused, the statement of the accused was recorded u/s.313 of Cr.P.C. and the accused entered defence simpliciter of being falsely implicated and denial.
7. Heard the Ld. Chief Prosecutor who vehemently submitted that the postmortem report and the evidence of P.W.5 Dr. Sandeep Ingle shows that the victim had suffered serious injuries and the nature of injuries clearly show that the death of deceased was homicidal in nature. The photographs of the deceased as well as the evidence of the medical officers establish the homicidal death of the victim. The victim was brutally stabbed and had more than twentyfive injuries on her person of which twentytwo injuries are incised or stab wounds or cut wounds, which are clearly possible by a sharp object like knife. In view of these facts and circumstances, there is nothing brought about to show that these findings are incorrect. The postmortem doctor has clearly stated that the injuries are possible by a sharp weapon like knife and considering the same, homicidal death is established. The said incident of assault is witnessed by two persons i.e. P.W.3 Mohd. Afsar Salim Khan & P.W.4. Imran Ahmed Sayyed. P.W.3 was walking along the said road and saw the accused assaulting and hence, he raised an alarm and cried and shouted and crossed the road to confront accused and then followed the accused and caught hold of him. He :10 : JUDGEMENT IN S.C.440/2017 also saw that there was one motorcycle rider, who was also chasing the same accused and the motorcycle rider fell down and then, again he carried on the chase. P.W.4 is the second eyewitness ,namely the said motorcycle rider. He was driving the motorcycle and in the light of the motorcycle saw the incidence and shouted and then followed the accused, when he was trying to run away. The said two witnesses have caught hold of the accused and then contacted P.W.7 PC Tushar Murlidhar Bhagwat, who was the traffic police, present at the place of incident nearby. They, alongwith P.W.7., the accused, P.W.3 and P.W.4 went to the police station and that evidence is clearly established by P.W.2 PSI Yogesh Langute and P.W.13 P.I. Nilesh Pramod SalunkhePatil. Considering these circumstances, the evidence of P.W.3, P.W.4 & P.W.7 clearly establish the fact that the accused is perpetrator of crime. He was seen stabbing and assaulting the deceased. Thus, these circumstances are sufficient to bring home the guilt of the accused. P.W.8 Manoj Parshuram Yadav, is the panch to the spot and panch to the seizure of other articles. P.W.11 Shankar Ramdas Naidu is the person, in whose presence the accused had shown the place where he had thrown the knife and the search & seizure of the knife took place in the said Nala. The knife was found in the said Nala and it is connected to the conduct of the accused of showing where he had thrown it. Thus, if one considers this evidence on record, the spot is corroborated, the knife recovery is corroborated to the accused and the clothes of the accused are seized. The CA reports carried out clearly show the said involvement. The CA report shows the corroboration of the blood stains on the clothes of the accused and deceased. Considering all the circumstances, although there are certain lacunas in the investigation that does not support innocence :11 : JUDGEMENT IN S.C.440/2017 of the accused. The accused has not given any explanation and considering the same, the accused be convicted and sentenced accordingly.
8. Heard Ld. Counsel for the accused, who vehemently and persistently submitted that the duty of the prosecution is to bring home the guilt of the accused beyond reasonable doubt and it is for the prosecution to establish all the facts to bring home the guilt of the accused. He further pointed out that the evidence of P.W.2 PSI Yogesh Langute, is totally unreliable. According to P.W.2, three other persons and two traffic police brought one person. Thus, there were six persons, which is contrary to the evidence of the traffic police and two witnesses that they three took the accused to police station. It is surprising that the injured victim was kept lying at the place of incident itself. The accused was followed, caught hold of, beaten and then taken to the police station and thereafter, the police go to the victim and taken her to the hospital. This entire conduct of police and witnesses is highly unreliable and cannot be believed. As regards evidence of P.W.3, he has stated that he reached the home at 9.30 p.m. whereas the FIR is registered at 9.30 p.m. and thus, his presence is doubtful and his statement is recorded belatedly. There are no blood stains on the person of this witness, which is counter to the entire case. He claims that five persons went to the police station. He does not acknowledge the presence of other witnesses. It is the case of the prosecution that the accused was beaten up by the persons, who caught hold of him. None of these persons allege to have beaten the accused or the prosecution does not state that these witnesses beat the accused and thus, it is these witnesses who have not seen the incidence and also :12 : JUDGEMENT IN S.C.440/2017 not caught hold of the accused and not taken to the police station. They are staged witnesses. Considering these facts and circumstances of the case, the evidence of P.W.3 and P.W.4 cannot be relied upon. Neither P.W.3 nor P.W.4 confirm the presence of one another. There is a discrepancy with regard to the timing of both the witnesses as well as there is absence of injury certificate of P.W.4. P.W.4 was well acquainted with the police and other staff. The other independent witnesses are not examined. The friend of this witness P.W.4 was at the place of incident but, he is not examined and his statement is not recorded. Thus, considering the evidence P.W.3 and P.W.4 cannot be said to be eyewitnesses. As regards evidence of P.W.7 apparently as P.W.3 and P.W.4 were not the eyewitnesses, this witness states that the person who caught hold of the accused beat the accused and thus, as these witnesses P.W.3 and P.W.4 have not assaulted the accused, they are not the eyewitnesses. This witness did not take any effort to save the victim who was injured and in fact did not even see the victim. It is totally unbelievable conduct. There is no document of appointing the said traffic police at the place and thus, his presence there is highly doubtful. Surprisingly, although this witness was a few feet away from the place of incident, does not know the place of incident. There is counter evidence of this witness as to number of persons travelled in the police vehicle to the police station. This witness has refreshed his memory prior to evidence before the Court without permission and considering the same, it is doubtful about his evidence and same cannot be relied or considered. Thus, the evidence of these witnesses does not support the case of prosecution. The evidence of P.W.9 the Medical Officer is contrary to the evidence of P.W.3 and P.W.4 as he mentions the time of the :13 : JUDGEMENT IN S.C.440/2017 incident to be 9.15 p.m. which is counter to the case of P.W.3 and P.W.4 as well as P.W.7. In such circumstances, the evidence of P.W.3, P.W.4 and P.W.7 is washed away. P.W.5 is the Medical Officer, who conducted postmortem and he has not verified the injuries with the inquest. Further, the actual notes taken during the postmortem are not filed on record and thus, preparation of false case is highly probable. Similarly, the knife was never forwarded to the said doctor for examination. In such circumstances, the post mortem report cannot be relied upon. The evidence of P.W.6 Pramod Vanshnarayan Singh, the shopkeeper, from whom the knife was purchased, is doubtful, as he did not identify the accused and his statement was recorded much before that. As regards P.W.8 Manoj Parshuram Yadav, his presence at the place is doubtful. He discloses that he was there in the afternoon and the Panchnama is alleged to be drawn at midnight. The accused did not show the place of incident and thus, it is counter to the evidence and the Panchnama and so also the case of prosecution. It is surprising that although there are two panchanamas of the spot and seizure of clothes, the second panch is different in both the cases. The star witness P.W.3 was already at home when the Panchnama was prepared and thus, his presence is highly doubtful. For such post activity, said panch was in police station for three to four hours. Thus, considering all the facts and circumstances of the case, the seizure of clothes of the victim, of the accused as well as the spot Panchnama is highly doubtful and cannot be relied upon. To highlight discrepancies, the investigating officer P.W.13 states that three persons and one accused came to him and he did not go to the police station but went to the place of incident which Is not probable. He does not disclose that friend of P.W.4 or P.W.3 was :14 : JUDGEMENT IN S.C.440/2017 present at the place of incident. How complaint came to be lodged is not stated by him when the complainant was in hospital. The Panchnamas clearly show the panchas to be at the police station and not at the place of incident. How the panchas were brought at late midnight is highly doubtful. The seizure of the knife is highly doubtful. The search was taken for three days without panchas and alleged conduct or finding of knidfe is said to be recorded only on the last date. Surprisingly, the investigating officer after three days of search was exactly aware of the time when the knife would be recovered as he had called the video recording person for that particular slot. Thus, the entire aspect of seizure is without disclosure and highly doubtful. Moreover, none of the witnesses or the investigating officer explained or stated as to how and when the knife was thrown in the said Nala. Thus, the presence of the knife or the said knife was being used for the crime, is highly doubtful and not established by the prosecution. The photographer did not visit at night and thus, the entire photographs are doubtful. Moreover, there are no negatives produced on record as well as the photographs are not primary evidence to be proved. The prosecution has failed to establish any cogent evidence or proof against the accused. The alleged motive of having a love affair and break up is not proved. Evidence of the witnesses is doubtful, witnesses are interested or known witnesses, the recovery is falsely shown, photographs are not proved, false CD is prepared, the place of incident as well as the time of incident is highly doubtful. No Test Identification Parade has been conducted as apparently the witnesses were not knowing the accused. Considering all the facts and circumstances, the prosecution has failed to establish that the witnesses have corroborated the case of prosecution. There is no :15 : JUDGEMENT IN S.C.440/2017 case of either of the witnesses or prosecution that the accused had assaulted the victim on twentyfive occasions as pointed out in the postmortem report. Surprisingly, no one had intervened and there are no eyewitnesses at a crowded place. Neither P.W.3 nor P.W.4 intervened and tried to save the girl. The injuries on the person of accused are not explained. There is no prosecution lodged for injuries on the accused. Considering these facts, the entire case of prosecution is highly unreliable and hence, the accused be acquitted.
9. Perused the chargesheet, evidence on record and considered the submissions. Following points are arise for my consideration and I answer the same as under for the reasons stated hereinafter : POINTS FINDINGS
1. Whether the prosecution establishes that the death of Sofia was an homicidal :: death ? Yes, in the affirmative
2. Whether the prosecution establishes that the accused caused the injuries resulting into homicidal death of Sofia on :: 09/04/2017 ? Yes, in the affirmative
3. Whether the prosecution establishes that accused has committed any offence as :: alleged ? Yes, u/s.302 of IPC
4. What order ? As per final order. :: :16 : JUDGEMENT IN S.C.440/2017 REASONS AS TO POINT NO.1 :
10. With regard to the nature of injuries, one has to consider the evidence of two medical officers. P.W.9 Dr. Shashank S. Patekar, is the Medical Officer of the V. N. Desai Hospital. He deposes that on 9th of April, 2017, the victim was brought at 9.15 p.m. and he found that the victim had sustained multiple injuries and observed deep CLW on the left side and she was declared dead on arrival. He had seen some other injuries also, he collected the blood samples and handed over them to the police. He has brought the Casualty Register and the relevant extract is at Exh.39. According to him, the injuries are possible by the knife and the injuries seen by him are sufficient to cause death in ordinary course of nature. The medical officer specifically stated that the incident is mentioned to have occurred at 9.15 p.m. and denied that he had only seen four injuries. He has no idea if, any person accompanied the deceased. On perusal of Exh.39, the entries are available at serial No.3 to 80. It shows that the victim is seen to be brought at 9.25 p.m. and the incident is shown to be at 9.15 p.m. in the history. The victim was found to be dead on arrival. He has seen the deep structures of neck on left side, punctured wounds are seen over abdomen, cut injuries seen over abdomen, both elbows i.e. left arm and right flank etc. Thus, evidence of P.W.9 is well supported by Exh.39. It is seen that the victim was brought at 9.25 p.m. and she was declared to be dead on arrival.
11. The evidence of P.W.2 also clearly shows that the accused was brought to the police station at 8.45 p.m. and that he collected :17 : JUDGEMENT IN S.C.440/2017 information for about 10 to 15 minutes and then, he went to the spot within ten minutes and took the victim to Desai Hospital and he reached the hospital at about 9.30 p.m. Thus, the evidence of P.W.2 is well corroborated and tallies with the evidence of the Medical Officer P.W.9 and Exh.39.
12. The evidence of P.W.5 Dr. Sandeep Ingle, is also of relevance, so much so that he has conducted postmortem of the victim on 10 th of April, 2017. He found as many as twentyfive injuries as under and the same are mentioned in Column No.17 of the postmortem report. Column No.17 : Surface wounds and injuries
1. Cut Throat injury present over left side of neck slightly obliquely placed at the level of laryngeal prominence in midline. It is situated 4.5cm below the chin, 8.5cm above the suprasternal notch, 2.5cm below the left angle of mandible and 7cm below the left mastoid measuring 8.5cm x 5.5cm x bone deep. Margins clean cut showing skin tags in between at places, blood infiltrated reddish in colour. Lateral angle is sharp and acute, directed laterally to medially inwards. Tailing of wound present over anteromedial aspect of neck. Underlying thyroid cartilage, glottic part of larynx, laryngopharynx, soft tissue, blood vessels and musculature cleanly cut corresponding to surface injury alongwith cut fracture of left sided body of third cervical vertebra measuring 3cm in length and maximum depth of 3mm. Evidence of left side of internal jugular vein completely incised and common carotid artery partially incised.
2. Stab wound wedge shaped present over anterior aspect of epigastric region in midline situated 20cm below the suprasternal notch, lower angle is 10.5cm above the umbilicus, obliquely placed measuring 3.5cm x 1cm x cavity deep, margins clean cut, blood infiltrated reddish in colour with upper angle is sharp and acute, beveling seen on lower margin. The track of injury directed downward, inwards, convergent and medially causing a cut injury in underlying subcutaneous and muscular tissue of size 3.5cm x 1cm, margins cleancut and blood infiltrated further causing perforated sharp cut injury over :18 : JUDGEMENT IN S.C.440/2017 anterior surface of stomach of size 3.5cm x 1cm x cavity deep, margins clean cut and blood infiltrated.
3. Stab wound wedge shaped present 0.2cm lateral to the above mentioned injury in right side of epigastric region situated upper angle is 20cm below the suprasternal notch, lower angle is 9.5cm above the umbilicus, vertically placed measuring 2.2cm x 1.2cm x cavity deep, margins clean cut, blood infiltrated reddish in colour with upper angle is sharp and acute. The track of injury directed downward, inwards, convergent and medially causing a cut injury in underlying subcutaneous and muscular tissue of size 2.2cm x 1.2cm, margins cleancut further causing a sharp cut injury over right side of medial 1/3rd of last costochondral cartilage of size 4.5cm in length, margins clean cut blood infiltrated further causes a perforated wound over underlying liver parenchyma i.e. anterior aspect of left lobe of liver of size 2.2cm x 0.5cm x parenchyma deep with exit wound over posterior surface of left lobe of liver, margins clean cut, blood infiltrated, reddish in colour.
4. Stab wound wedge shaped present 2cm lateral to the above mentioned injury in right hypochondriac region situated upper angle is 21cm below the right midcalvicular line, lower angle is
20.5cm above the right midinguinal point, 4cm lateral to the midline, vertically placed measuring 3cm x 1cm x cavity deep, margins clean cut, blood infiltrated reddish in colour with upper angle is sharp and acute. The track of injury directed downward, inwards, convergent and medially causing a cut injury in underlying subcutaneous and muscular tissue of size 3cm x 1cm, margins cleancut further causing a sharp cut injury over underlying liver parenchyma i.e. anterolateral aspect of right lobe of liver of size 3cm x 0.2cm x parenchyma deep, margins clean cut and blood infiltrated.
5. Stab wound wedge shaped present over left hypochondriac region situated upper angle is 28cm below the left mid calvicular line, lower angle is 7cm lateral to the midline, obliquely placed measuring 1.2cm x 0.5cm x muscle deep, margins clean cut, blood infiltrated reddish in colour with lower angle is sharp and acute. The track of injury directed upward, inwards, convergent and medially causing two cut injuries in underlying subcutaneous and muscular tissue of size 5cm x 2cm each, margins cleancut and blood infiltrated reddish in colour.
6. Incised wound present over anterior aspect of left side of :19 : JUDGEMENT IN S.C.440/2017 epigastric region, situated 17cm below the suprasternal notch, 2cm lateral to the midline, vertically placed measuring 1cm x
0.5cm x tissue deep, margins clean cut, blood infiltrated reddish in colour with lower angle is sharp and acute.
7. Incised wound present over lateral aspect of right hypochondriac region situated upper angle is 16cm below the right nipple, lower angle is 9cm lateral to the midline, slightly obliquely placed measuring 2cm x 0.2cm x tissue deep, margins clean cut and blood infiltrated, reddish in colour.
8. Superficial incised wound present over lateral aspect of left hypochondriac region, situated 10.5cm below the left nipple, horizontally placed measuring 1.5cm x 0.2cm x tissue deep, margin clean cut and blood infiltrated reddish in colour.
9. Incised wound present over right lumbar region situated 4cm above the right anterior superior iliac spine, 11cm lateral to the midline, horizontally placed measuring 3cm x 1cm x muscle deep, margins clean cut and blood infiltrated reddish in colour.
10. Incised wound present left side of umbilical region situated 33cm below the suprasternal notch, 1cm lateral to the midline, 2cm above and lateral to the umbilicus, slightly obliquely placed measuring 2cm x 0.5cm x tissue deep, margins clean cut and blood infiltrated reddish in colour.
11. Superficial incised wound present over left side of neck, slightly obliquely placed situated 1.5cm below the injury no.1 starting from 6.5cm below the chin, 6cm above the suprasternal notch,
8.5cm below the left angle of mandible and 11cm below the left mastoid measuring 10.5cm x 0.5cm x tissue deep. Margins clean cut, blood infiltrated reddish in colour with lateral angle is sharp and acute. Tailing of wound present over medial end.
12. Stab wound wedge shaped present over lateral aspect of left side neck, situated 6.5cm below the left mastoid measuring 1cm x 0.4cm x muscle deep. Margins clean cut and blood infiltrated reddish in colour with upper angle is sharp and acute.
13. Incised wound present over extensor aspect of upper 1/3rd of right forearm, vertically placed measuring 2cm x 1cm x muscle deep, margins clean cut, blood infiltrated reddish in colour with lower angle is sharp and acute.
14. Superficial incised wound present over dorsal aspect of middle phalanx of right ring finger measuring 1.2cm x 0.2cm x tissue :20 : JUDGEMENT IN S.C.440/2017 deep, margins clean cut and blood infiltrated reddish in colour.
15. Incised wound present over anterior aspect of upper 1/3rd of left arm, obliquely placed, situated 11cm below the left shoulder, 13.5cm above the left elbow measuring 2cm x 1cm x tissue deep, margins clean cut and blood infiltrated reddish in colour with lower angle is sharp and acute.
16. Incised wound present over posterior aspect of lower 1/3rd of left arm, vertically placed, situated 22.5cm below the left shoulder, measuring 7cm x 2cm x muscle deep, margins clean cut and blood infiltrated reddish in colour with lower angle is sharp and acute.
17. Perforated incised wound present over flexor aspect of middle 1/3rd of left forearm, obliquely placed, measuring 4cm x 1.5cm x muscle deep, causing exit wound of size 1.5cm x 0.5cm x muscle deep margins clean cut and blood infiltrated reddish in colour.
18. Incised wound present over palmar surface of left hand between web space of left thumb and index finger, horizontally placed measuring 4cm x 2cm x muscle deep, margins clean cut, blood infiltrated reddish in colour with lateral angle is sharp and acute.
19. Incised wound present over dorsal aspect of proximal phalanx of left thumb, obliquely placed measuring 1.2cm x 0.3cm x tissue deep, margins clean cut, blood infiltrated reddish in colour with lateral angle is sharp and acute.
20. Incised wound present over tip of left ring finger, horizontally placed measuring 1cm x 0.3cm x tissue deep, margins clean cut, and blood infiltrated reddish in colour with lateral angle is sharp and acute.
21. Incised wound present over medial aspect of lower 1/3rd of palmar surface of left hand, vertically placed measuring 1cm x
0.2cm x tissue deep, margins clean cut and blood infiltrated reddish in colour.
22. Incised wound present over posterior aspect of lower 1/3rd of right thigh, horizontally placed measuring 1.5cm x 1cm x tissue deep, margins clean cut, and blood infiltrated reddish in colour with medial angle is sharp and acute.
23. Abraded contusion present over left side of ala of nose measuring 1cm x 0.3cm, reddish in colour. :21 : JUDGEMENT IN S.C.440/2017
24. Abraded contusion present over right side of middle 1/3rd of lower lip measuring 0.3cm x 0.2cm, reddish in colour.
25. Abraded contusion present over left side of lateral corner of lower lip measuring 1.5cm x 0.3cm, reddish in colour.
13. The postmortem report is at Exh.29 and the Cause of Death Certificate is at Exh.30. He has also mentioned the internal examination and injuries seen. The neck was split open. He found corresponding injuries to the internal organs, to the stomach etc. and also to other various vital internal organs. According to him, the injuries found were antemortem in nature and are sufficient to cause death in ordinary course of nature. According to him, the death is due to shock and haemorrhage due to cut throat injury associated with multiple stab wounds. He opined that the knife i.e. Article ‘1’, before the Court, can cause the said injuries.
14. He has stated that he saw the inquest Panchnama and he is unable to state if, the injuries tally with the postmortem report. This can be because the inquest panchnama was never put before him at the time of evidence. The said witness was not confronted with the discrepancies in injuries if any and also the inquest Panchnama to point out the discrepancies if any. And considering the same, this aspect cannot be said to be counter to the veracity of the said witness.
15. This witness has fairly submitted that the knife was never forwarded to them for their opinion. It is brought about in the cross examination that rough notes were prepared and accordingly, on the basis of the notes, the postmortem report was prepared. It is brought about in his crossexamination that the final report was :22 : JUDGEMENT IN S.C.440/2017 prepared immediately after the examination. He has not brought the said rough notes and it would not be possible to produce the said notes, as the same are not preserved by him. At the outset, considering this evidence, it is apparent that at the time of conducting postmortem, it is difficult to fill up the form of the post mortem more os type it down. Certainly, some rough notes would be prepared and same would be filled up in the postmortem form on the basis of the rough notes. In view of the fact that it has been brought about in the crossexamination that the postmortem report was prepared immediately, it is apparent that the medical officers prepared the postmortem report immediately. Nothing has been brought about to counter the contents of the postmortem report. In view of these facts & circumstances, I hold that there is due veracity to the postmortem report and cause of death namely Exh.29 & Exh.30.
16. The Medical Officer conducting P.M. has ruled out that such type of injuries are possible because of accidental cases.
17. It was tried to be pointed out that there is discrepancy that the medical officer states that the deceased was not treated in V. N. Desai Hospital. In fact, this is counter to the evidence of P.W.9 Dr. Shashank S. Patekar. At the outset, one has to consider the aspect of treatment being given. P.W.9 has specifically stated that the victim was brought in the hospital and declared dead on arrival and thus, no question of treatment being administered. This witness i.e. P.W.5 Dr. Sandeep Ingle has also specifically stated that he had seen the medical record of V. N. Desai Hospital. Thus, on considering the :23 : JUDGEMENT IN S.C.440/2017 evidence of P.W.5, his evidence is cogent and reliable and can safely be relied upon.
18. The evidence of the said witness shows numerous serious injuries being caused to the deceased. The neck is said to be slit opened showing the internal organs. There are injuries to various internal organs like stomach, Larynx, Trachea and bronchi, there is also injury to liver. Thus, serious injuries have been caused and the nature of injuries clearly point out to be incised and stab wounds. The nature of injuries are twentyfive in number and of serious nature. The victim to be around 16 to 17 years, and was able bodied. On consideration of the postmortem report as well as the evidence of Medical Officers, it is clear that the death is homicidal in nature. The Medical Officer as well as the nature of injuries has clearly ruled out any natural cause of death or the injuries being accidental. Hence, I answer to Point No.1 is in affirmative. AS TO POINT NO. 2 :
19. Having held that the death is homicidal, one has to consider as to whether the prosecution establishes that it is the accused, who caused the said injuries. The prosecution relies upon two eyewitnesses as well as one traffic police namely P.W.3, P.W.4 & P.W.7 in this regard.
20. P.W.3 deposes that on the eventful date, he and his friend Sharad were walking towards Ambedkar Chowk, at around 8.00 p.m. to 8:30 p.m., he saw one unknown person assaulting a lady on the road and the lady was shouting as “Helphelp, BachaoBachao”. He further deposed that he crossed the road halfway and at that time, he saw the said person, assaulting with knife on the chest of the woman and :24 : JUDGEMENT IN S.C.440/2017 when they shouted, the person started running towards Hans Bhungra Junction and they followed him. It is further in his evidence that one motorcycle crossed them and dashed the said person, who was running away and both fell down and the other person, who was running away, got up and turned left but, he was caught hold of by other persons. He tried to escape, some people beat him up and traffic police was called. In the police vehicle, the said witness, the said person, one unknown person and one Sharad went to the police station and in his presence, the said person, who was running away disclosed his name as Ambaji Shivaji More. He also identified the accused in the Court. The statement u/s.164 of Cr.P.C. of the said witness was also recorded and is available at Exh.16. The statement u/s.164 of Cr.P.C., corroborates the evidence as he deposed in the Court.
21. In his crossexamination, he stated that his friend had come to his house between 7.45 p.m. to 8.00 p.m. and they had reached the Nursery Bridge by 8.00 p.m. to 8.30 p.m. and there were number of vehicles passing by. The witness was asked and he stated that it is not a public place and there are no residential premises nearby and he further stated that the area is a secluded area and there was darkness on the road. He does not know the number of the motorcycle that dashed the said person. He does not name the traffic constable. He reached home at about 9.30 p.m. to 10.00 p.m. on that day and does not know the number of the vehicle in which they went to Vakola Police Station. A suggestion was put to him that he was suspiciously roaming and that police took him as a witness. :25 :
22. JUDGEMENT IN S.C.440/2017 One aspect that has to be considered in this case is, as to how and why this witness would take side of police or depose against the accused. No reason is shown. His presence is not doubted or shown to be an unnatural. Apparently, he is a chance witness. It is seen from the evidence that this witness behaved in a particular manner, namely, he went after the accused and carried the accused to the police station with the help of the traffic police. This conduct is doubted in the course of argument. At the outset it is difficult to state how a person would react to a particular incidence. A person could react to a particular incidence differently, although, the incidence could be the same. He could be neutral, or run away, or assist the victim or assist in catching of the culprit. It is really difficult to predict the manner in which a person would react. In order to disbelieve a persons conduct, one has to consider if, it is totally unnatural. The conduct of the present witness to follow the perpetrator of crime and to nab him and taking to the police station can certainly be not said to be unnatural.
23. It is in the evidence that the police station is barely 400 meters away. Thus, the present witness considering it fit and proper to nab the accused then to consider the victim, cannot be said to be unnatural or believable. In such circumstances, atleast his cross examination does not bring about anything to disbelieve him.
24. The evidence of P.W.4 is that on that day, he was proceeding towards the airport and then after completing the work at 8.00 p.m., was returning back to his house and when he reached near Air force Hospital, he saw that one girl is lying on the ground and one boy sitting over her and the said girl was shouting Bachao Bachao and he :26 : JUDGEMENT IN S.C.440/2017 saw the incidence in the headlight of the vehicle. The said person did not release the girl and therefore, the said witness with his friend went near the said girl and boy and asked the boy to leave the girl. When, they went near, they saw blood on the ground and also the said person was assaulting the girl and when they reached near the victim and the boy, the boy ran away and hence, he followed the boy on the motorcycle. He specifically states that he was on the wrong side and could not raise the speed of the vehicle and when he reached, the accused, who pushed him and hence, he sustained the injury on the elbow and knee, but, again he followed him. He also states that he shouted as “Pakdo, Pakdo” and the said person, whom he was following, fell on the ground and other persons also gathered and helped them to nab the said person. He specifically stated that he took the person to the traffic police and that the said person disclosed his name as Ambaji Shivaji More and he identified the accused in the Court.
25. In his crossexamination, it is pointed out that he is doing social work and he arranges camps at police station. He has not stated the number of the motorcycle. He has admitted that at the place of incidence there are no street lights and it is in dark and vehicles do not halt there. He specifically states that there are no residential houses near the place of incidence. He also stated that there were number of vehicles moving there and no vehicles halted. It was pointed out to him that he could have seen the red coloured engine oil and mistaken it as blood, which he denied specifically. It was tried to be brought about that the headlight of his vehicle was weak because of its age, which he has denied. He specifically pointed out that he heard a shout of victim at a distance of about 10 ft' and that :27 : JUDGEMENT IN S.C.440/2017 the intensity of his light is about 20 ft'. He has not taken the injured to the hospital and that he was following the accused while driving on the wrong side. It is denied by him that he was traveling on the wrong side and slipped on the speed breaker and fell and the traffic constable caught him. He has denied that to appease the police, he deposed falsely. Thus, if, one considers this aspect, his evidence and his presence is well corroborated by the other witness i.e. P.W.3. Both these witnesses do not know one another. Both these witnesses have no knowledge of one another. Certainly, there would be some discrepancies in the evidence of these two witnesses. These two witnesses come from different places and have seen the incidences from different angles and locations. The said two witnesses have also witnessed the incidence in different environments, one while walking and another while running or driving the vehicle, one from this side and other from opposite side of road, one in whatever light source and another in his headlight lightsource.
26. Thus, trying to compare the evidence , word by word to be same , of these two witnesses as to what they saw is not proper. There is bound to be differences . One has to see if the differences cancel one another and hence fatal . There is consensus of both these witnesses that one person was assaulting a girl with a knife and she was lying on the ground and when, they raised a cry, he started running away, he was followed and fell and caught hold of. There is support that one motorcycle tried to follow the accused and both fell. There is common evidence of these witnesses that public caught hold of the accused and the accused was taken to the traffic police. There is commonness to the fact that they all went to Police station with the accused and met the police. There is commonness in identification of :28 : JUDGEMENT IN S.C.440/2017 accused. There is commonness is disclosure by the accused his name as Ambaji More. In view of this supporting evidence, I find that in fact the evidence of P.W.3 and P.W.4 is well corroborated with one another and supports the case of prosecution.
27. Now, I will consider the evidence of P.W.7 PC Tushar Murlidhar Bhagwat. This P.W.7 is the traffic police, who was deputed at the Hans Bhungra Junction. He stated that three persons were beating one person and when he enquired, the said persons disclosed that the person was being beaten, had given sharp weapon blows on one girl and he made a call Vakola Police Sstation, who sent a vehicle and took the said three persons and another person in the vehicle at Vakola police station and the name of the person, who was caught hold of was Ambaji Shivaji More and he identified the said person to be the accused in the Court. His entry is not available on the record. He is not aware about the spot of incidence. The distance between the junction and the spot of incidence is said to be about 200 mtrs to 250 mtrs. Apparently, he did not observe anything untoward till he saw the three persons assaulting one person. Thus incident occuring on a secluded place is well supported. The suspected person and the other persons were on the junction for about 10 to 15 minutes. He specifically stated that PSI Langute enquired with him namely P.W.2. This is supported by the Complaint and evidnec of PW 2. He was in police station for 20 to 25 minutes. Thus, if, one considers the evidence of this witness, it corroborates evidence of P.W.3 and P.W.4 that they carried the accused to the police namely the traffic police. Considering the fact that the said police was the traffic police, he contacted the local general police and then took these persons to the police station and handed over him (accused) to the responsible :29 : JUDGEMENT IN S.C.440/2017 police officers. Thus, mere nonfiling of his duty record, will not make the evidence of this witness unreliable. The evidence of P.W.3 and P.W.4 clearly supports and is well corroborated by this witness i.e. P.W.7 PC Tushar Murlidhar Bhagwat.
28. Now, we shall consider the other evidence led by the prosecution. P.W.1 is the panch witness for house search of the house of the accused. Nothing was found incriminating and the Panchnama is at Exh.18, the identification of the accused is verified from the documents at Exh.19, recovered from the place of incidence namely the house of the accused. Thus, this witness evidence does not take the case of prosecution any further. We have already considered the evidence of P.W.2, P.W.3 and P.W.4. P.W.5 Medical Officer.
29. P.W.6 Pramod Vanshnarayan Singh, is the alleged Shopkeeper from whom the accused is said to have purchased the knife. The evidence of this witness will not support the prosecution to take the case further, as he has not identified the said person (accused) and has merely identified the knife. Thus, this does not take the case of prosecution further to link the accused with that of the incidence.
30. P.W.8 Manoj Parshuram Yadav, is the panch to the spot and clothes of the accused. He states that when, he went to the police station for his work, police asked him to act as a punch and accordingly, clothes of the accused were seized which were on his person and that they were stained with blood and the accused was having swelling on his one eye. His mobile was also seized and accordingly, Panchanama was prepared at Exh.35. He identified the articles namely Article '3' shirt, Article '4' Banian & Article '5' pant and the wrappers to the said articles which we are having signature :30 : JUDGEMENT IN S.C.440/2017 and same are identified as article '3A', '4A' & '5A' respectively. This witness further states that the accused has shown the place of incidence and the place of incidence is near one bridge and he went there with the police and there was staff of police, forensic lab, cameramen and the person who caught hold of the accused. This corroborates the case of the witness P.W.4 who states that he had placed his friend there to look after the deceased and injured person. At the place, he found some blood and Burkha (nakab) and some blood stains and other samples were collected and photograph was also taken and the spot Panchnama is at Exh.36. The Nakab is at Article '6'. There is a discrepancy of time and it appears to be natural and it is said to be 01.15 p.m. instead of 01.15 a.m. He does not know the nature of clothes given to the accused for change of clothes. The first Panchanama of personal search was completed at
02.05 and immediately, thereafter, they went to the place of incidence. In his crossexamination, he specifically stated that the second panch, who acted on the personal search was not alongwith him to the spot Panchnama. This is corroborated by the Panchnamas on record. The said witness returned to the police station after the Panchnama process was completed. He identified the accused to be the same person. The Panchnama is seen to be in consonance with the evidence on record except the time period of p.m. or a.m. It is said that P.W.3 has shown the place of incidence and this discrepancy is pointed out to point out that P.W.3 had reached his residence at 10.00 p.m. and thus, could not have shown the place of incidence. One does not know if, he again returned to the place of incidence. The blood stains were seized, the Nakab was seized and blood samples were also collected. In my view, there is nothing on :31 : JUDGEMENT IN S.C.440/2017 record to disbelieve the said witness. And this supports the case of prosecution.
31. P.W.10 Nikhil Kalyan Shivalkar, is the photographer. Unfortunately, we are unable to accepts the photographs on record for want of negatives or certificate u/s.65B of the Evidence Act.
32. P.W.11 Shankar Ramdas Naidu, is the videographer of recovery of the weapon. It is not known as to how this witness could attend only at the time of recovery of the weapon when the weapon was being searched for three days. The source of knowledge of the weapon is also doubtful. Thus, I do not believe this witness.
33. Similar is the case of P.W.12 Mohd. Sultan Saifee, who is said to be the panch to the said efforts of recovery of the article. He searched for the weapon in the 'Nala' and surprisingly, found the same. It is difficult to relate all these evidence. Moreso when the circumstance of accused being able to throw the knife during fleeing or relating to the place of recovery and that of spot of incidence is absent in investigation. Considering the circumstances, I do not consider the evidence of this witness to be reliable to link up the case to that of the prosecution.
34. P.W.14 Chandrakant Chavan, is the witness from the office of the Chemical Analysis Authority. It is necessary to point out that the CA reports on record, are the copies of the record and this witness has verified that the original and the copies of the reports are the same. The CA reports are at Exh.P60, Exh.P68, Exh.P69 & at Exh.P70. The sample of blood of the accused is haemolysed. The Scalphairs and nail clippings are of the victim and shows to contain :32 : human blood. JUDGEMENT IN S.C.440/2017 The blood group of victim is said to be not determined because of it being haemolysed. The human blood is found on the Burkha, Kurta, Scarf, Brassiere, leggings, shirt & three fourth pant. In these circumstances, the evidence of Chemical Analyzer, merely relates to the human blood and cannot be conclusive evidence to relate the incident with that of the evidence on record. The evidence of P.W.15 Ms. Vijaya Vasant Kudle relates to the CCTV footage. As pointed out earlier, the said CCTV footage or video footage and other evidence is not produced on record for examination by this Court physically.
35. Last but not the least, is the evidence of the Investigating Officer P.W.13 PI Nilesh Pramod SalunkhePatil, who stated that he was night duty PI. When the information was received and he went to the place of incidence, before which the traffic police and three persons came to the police station. At the spot, he found the girl from community lying in injured condition and he removed the injured to the hospital and directed the staff to protect the spot. The victim was identified by her relatives. He has prepared inquest Panchnama, saw the injuries, seized the clothes of the deceased and identified the articles, which are present before the Court. The witness as well as accused were forwarded for medical examination and the FIR is also recorded, the clothes of the accused were seized, spot Panchnama was prepared, samples collected, statements of witnesses recorded, knife seized at the instance of the accused, the CDR reports shown exchange of conversation and SMS. In the cross examination, nothing was brought about to disbelieve the investigation. Yes, there are certain lacuna in the investigation, no memorandum of the discovery statement was prepared for recovery :33 : JUDGEMENT IN S.C.440/2017 of knife at the instance of accused. There is also absence of evidence of the victim's parents or relatives or other circumstances, for motive as well as the other relationship of accused and the deceased. Considering the same, these discrepancies are seen. It is necessary to consider the test identification parade is only a corroborative nature of investigation tool.In the present case, the evidence of the witnesses clearly shows that the accused was caught hold immediately ,red handed and thus, the question of test identification parade becomes redundant. The aspect of recovery of knife has not been considered by me as fatal again, as it is a corroborative evidence. In the present case, there are two eyewitnesses and for the reasons stated hereinbefore their evidence is reliable and substantial. The evidence of the two eyewitnesses corroborates one another and the clearly link the accused and to the injuries caused. The injuries clearly relate to the death of the victim.
36. Ld. Advocate for the accused relied on the following cases :
1. The State of Maharashtra V/s. Pramod s/o. Dhanraj Gajbhiye, 2018 ALL MR (Cri) 1863.
2. The State of Maharashtra V/s. Parshu s/o. Ramji Khillare & ors., 2018 ALL MR (Cri) 343.
3. Mahendra Singh & ors. V/s. State of M.P., MANU/SC/0752/2022.
4. Ravi @ Galya Ramchandra Wankhede V/s. The State of Maharashtra, 2017 ALL MR (Cri) 1972.
5. The State of Maharashtra V/s. Jaysing Vitthal Shetke & ors., 2021 ALL MR (Cri) 4419.
6. Birnami and another V/s. State of U. P., 2023 Cri. L. J. 198.
7. C. Magesh And others V/s. State of Karnataka, (2010)5 Supreme Court Cases 645. :34 : JUDGEMENT IN S.C.440/2017 The said rulings relied upon relates to the specific facts of cited cases and there is much discrepancy in the facts of the cited cases and present case and hence, cannot be made applicable directly.
37. Thus, prosecution by the evidence of these witnesses have clearly established that it is the accused who caused the said injuries and hence answer point No. 2 in affirmative. AS TO POINT NO. 3 :
38. In view of the findings to Point No.1 and Point No.2, one has to consider that if, there are circumstances brought about to bring the incidence under any of the exceptions. The evidence of the witnesses as well as the statement of the accused u/s.313 of Cr.P.C., does not bring the said assault in any of the exceptions. Thus, the nature of incidence, the causing of twentyfive injuries shows the clearcut slitting of the neck, clearcut show the intention of the accused to cause death of the victim. The absence of motive or the relationship not being established could be because it was personal to the knowledge of the accused and the deceased only. It cannot be said to be detrimental to that of the case of prosecution. Considering the same, the prosecution has fairly brought home the charge against the accused namely that the accused has murdered the victim on 9 th of April 2017, as charged with and hence, I convict the accused for commission of offence punishable u/s.302 of IPC. At this stage, I stop the judgment to hear the accused on the point of sentence. Digitally signed by ANIL ANIL SUBRAMANIAM SUBRAMANIAM Date: 2023.03.30 18:02:47 +0530 29/03/2022 (A.SUBRAMANIAM) SESSIONS JUDGE, CITY CIVIL COURT, MUMBAI :35 :
39. JUDGEMENT IN S.C.440/2017 I have heard the Ld. Advocate for the accused as well as accused and Ld. APP for the State on the point of quantum of sentence.
40. The accused submits that he has not committed any offence and he is innocent. He is having old aged parents and no one is there to look after them. Ld. Advocate for accused submits that accused is of tender age. He has no criminal antecedent, it does not fall in the rarest of rare case and lastly, considering the circumstances, lenient view be taken.
41. Ld. APP submits that offence is of serious nature and appropriate punishment be imposed.
42. Having considered the facts of this case, it is a cold blooded, planned murder of a young girl and with ferocity. But, even then this case would not fall within the case or rarest of rare cases. As regards Compensation the family of the deceased are well off, and the accused is poor person and hence, appropriate fine and compensation is awarded. With this, I pass the following order: ORDER
1. Accused Ambaji Shivaji More is hereby convicted for the alleged offences punishable u/s.302 of Indian Penal Code, 1860, in Crime No.176/2017, registered by Vakola Police Station, Mumbai.
2. Accused Ambaji Shivaji More is hereby sentenced to rigorous imprisonment for life and fine of Rs.5,000/ (Rs. Five Thousand Only), in default rigorous imprisonment of 06 (six) months, for offence u/s.302 of Indian Penal Code, 1860.
3. Accused is entitled for Setoff for the period undergone. :36 : JUDGEMENT IN S.C.440/2017
4. Disposal of property : All the articles be disposed off as per rule after the conformation of appellate court if any, as stated hereinafter as per rules. (a)Photographs (unmarked of victim & accused) be preserved on record of the Sessions Case and disposed as per rule as applicable to Documentary Evidence. (b)The property consisting of CD (Article '9' & unmarked CD) and CD attached to Application for leading secondary evidence (Exh.63), be forwarded to the Competent Authority for destruction as per rule. (c) Article '2' Black colour Mobile of accused Ambaji Shivaji More, be returned to him as per law and if, not claimed by him within six months of final order and confirmation, same be sold and sale proceeds by disbursed as per law. (d) Article '1' knife, be forwarded to District Collector for its disposal as per rule. (e)The remaining marked and unmarked articles, if any, be destructed as per rule.
5. The Accused is informed of his right to prefer appeal against this judgment and Order before the Hon’ble High Court of Bombay and also his right to Avail Legal aid for the same. (Dictated and pronounced in open Court). Digitally signed by ANIL ANIL SUBRAMANIAM SUBRAMANIAM Date: 2023.03.30 18:03:09 +0530 30/03/2023 Dictated on : 28th & 30th March, 2023. Transcribed on : 29th & 30th March, 2023. Signed by HHJ on : (A.SUBRAMANIAM) PRINCIPAL JUDGE, CITY CIVIL COURT, MUMBAI. (JO CODE MH01711) :37 : JUDGEMENT IN S.C.440/2017 “Certified to be true and correct copy of the original signed order”. 30/03/2023 at about 05.45 p.m. (Ms. Vidya Abhijit Mande) Stenographer (GradeI.) City Civil Court & Addl. Sessions Judge, Gr. Mumbai Name of the Hon'ble Judge : A.SUBRAMANIAM, PRINCIPAL JUDGE, City Civil Court & Addl. Sessions Judge Court Room No.19, Gr. Mumbai Date of pronouncement of Order : 30/03/2023 Order signed by Hon'ble Judge on : 30/03/2023 Order uploaded on : 30/03/2023 at about 05.45 p.m.
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BOMBAY.
PRESENT : SHRI.
A. SUBRAMANIAM, SESSIONS JUDGE, (JO CODE : MH01711) [
Date of the Judgment : 30th March, 2023] Sessions Case No.
0100440 of 2017 CNR No.
MHCC020084612017 FIR/CrimeNo.
FIR No.
176 of 2017 Police Station Vakola Police Station Complainant Name of Complainant The State of Maharashtra, (At the instance of Vakola Police Station, Mumbai) Vs Ambaji Shivaji More Represented By Name of the Advocate Public Prosecutor J.V.Desai, Accused
1. Name with Ambaji Shivaji More all particulars Add : Balganesh Utsav Krida (Accused) Mandal, Indira Nagar, Nirmal Nagar, Khar (East), Mumbai. 400 058. Native Place : Post Masewadi, Taluka Aajara, District Kolhapur. Represented By Name of the Advocate Adv. Shri. Keshav Chavan Part ‘B’ :2 : JUDGEMENT IN S.C.440/2017 [Para 44 (ii) of Chapter VI of Criminal Manual]
Date of Offence 09.04.2017
Date of FIR 10.04.2017
Date of Chargesheet 24.07.2017
Date of Framing of Charges 13.07.2018
Date of commencement of evidence 31.03.2021 Date on which judgment is reserved 18.03.2023
Date of the Judgment 30.03.2023
Date of the Sentencing Order, if any. 30.03.2023 Accused Details Rank of Name of
Date of the Accused Arrest Accused 1 Ambaji Shivaji More 10.04.2017
Date of Offences Whether Sentence Period o Release charged acquitted Imposed Detentio on Bail with or Undergo convicted e during Trial for purpose Section 428, Cr.PC. In Jail U/s.302 Convicted Rigorous imprisonment of IPC for life and fine of Rs.5,000/ (Rs. Five Thousand Only), in default rigorous imprisonment of 06 (six) months, for offence u/s.302 of Indian Penal Code, 1860. :3 : JUDGEMENT IN S.C.440/2017 Part ‘C’ [Para 44 (iii) of Chapter VI of Criminal Manual] LIST OF PROSECUTION / DEFENCE / COURT WITNESSES A. Prosecution : RANK NAME NATURE OF EVIDENCE PW1 Sajid Ali Mohammed Ali Shaikh Panch Witness PW2 Yogesh Vishwanath Langute Complainant PW3 Mohd. Afsar Salim Khan Eye Witness. PW4 Imran Ahmed Sayyed Eye Witness PW5 Dr. Sandeep Ingle Medical Officer (PM) PW6 Pramod Vanshnarayan Singh Witness – Utensils Seller PW7 Tushar Murlidhar Bhagwat Police Witness PW8 Manoj Parshuram Yadav Panch Witness PW9 Dr. Shashank S. Patekar Medical Officer PW10 Nikhil Kalyan Shivalkar Witness – Photographer PW11 Shankar Ramdas Naidu Witness – Videographer PW12 Mohd. Sultan Saifee Witness – Searched Knife from Nala. PW13 Nilesh Pramod SalunkhePatil Investigating Officer PW14 Chandrakant Chavan Chemical Analyzer PW15 Ms. Vijaya Vasant Kudle Chemical Analyzer (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS) B. Defence Witnesses, if any : C. Court Witnesses, if any : NIL NIL LIST OF PROSECUTION / DEFENCE / COURT EXHIBITS :4 : JUDGEMENT IN S.C.440/2017 A. Prosecution : Sr. No. Exhibit Number Description
----------------------------------------------------------------------------------------------------1. Exh.1 Chargesheet.
2. Exh.2 Application filed by accused to meet with parents.
3. Exh.3 Charge framed.
4. Exh.4 Plea of accused.
5. Exh.5 List of Documents.
6. Exh.6 List of Witnesses.
7. Exh.16 Statement of witness Mohammed Afsar Salim Khan recorded u/s.164 CrPC.
8. Exh.17 PW1 Sajid Ali Mohammed Ali Shaikh (Panch Witness)
9. Exh.18 House search panchanama (of accused).
10. Exh.19 Colly. Photo copy of Pan Card and Aadhar Card of accused.
11. Exh.22 PW2 Yogesh Vishwanath Langute (Complainant).
12. Exh.23 Colly FIR alongwith Statement.
13. Exh.24 PW3 Mohd. Afsar Salim Khan (Eye witness).
14. Exh.26 PW4 Imran Ahmed Sayyed (Eye Witness).
15. Exh.28 PW5 Dr. Sandeep Ingle (Medical Officer)
16. Exh.29 Post Mortem Report.
17. Exh.30 Cause of Detah Certificate.
18. Exh.32 PW6 Pramod Vanshnarayan Singh (Witness Utensils Seller).
19. Exh.33 PW7 Tushar Murlidhar Bhagwat (Witness)
20. Exh.34 PW8 Manoj Parshuram Yadav (Panch Witness)
21. Exh.35 Personal search panchanama (of accused).
22. Exh.36 Spot Panchanama. :5 : JUDGEMENT IN S.C.440/2017
23. Exh.38 PW9 Dr. Shashank S. Patekar (Medical Officer)
24. Exh.39 Extract of casualty register of V. N. Desai Hospital.
25. Exh.43 PW10 Nikhil Kalyan Shivalkar (Photographer).
26. Exh.44 PW11 Shankar Ramdas Naidu (Videographer).
27. Exh.45 CA Report No.B2213/17 dated 18.09.2018.
28. Exh.46 PW12 Mohd. Sultan Saifee (Witness searched knife from Nala)
29. Exh.47 PW13 Nilesh Pramod SalunkhePatil (IO)
30. Exh.48 Inquest Panchanama.
31. Exh.23A Report of the informant.
32. Exh.49 Arrest Panchanama.
33. Exh.50 Forwarding letter.
34. Exh.51 Forwarding letter dtd. 11.04.2017.
35. Exh.52 Forwarding letter dtd. 15.04.2017.
36. Exh.53 Forwarding letter dtd. 15.04.2017.
37. Exh.54 Forwarding letter to CA dtd. 24.04.2017.
38. Exh.55 Forwarding letter dtd. 26.04.2017.
39. Exh.56 Forwarding letter dtd. 12.04.2017.
40. Exh.57 Panchanama regarding search of the knife in the stream.
41. Exh.61 Evidence closure pursis filed by prosecution.
42. Exh.62 Statement of accused u/s.313 CrPC is recorded.
43. Exh.P 65/PW14 PW14 Chandrakant Chavan (Chemical Analyzer)
44. Exh. P 66/PW14 Letter dt. 07.09.2012 issued by CP Office.
45. Exh. P 67/PW14 CA Report No.B2428/17, MT No.21975 76/17 dt. 01.08.2017.
46. Exh. P CA Report No.B2117/17, :6 : JUDGEMENT IN S.C.440/2017 68/PW14 MT No.2221920/17 dt. 03.08.2017.
47. Exh. P 69/PW14 CA Report No.B2116/17, MT No.1985556/17 dt. 12.07.2017.
48. Exh. P 70/PW14 CA Report No.B2101/17, MT No.8516/18 dt. 18.04.2018.
49. Exh. P 71/PW15 PW15 Ms. Vijaya Vasant Kudle (Chemical Analyzer)
50. Exh. P 72/PW15 CA Report No.Cy431/17, MT No.19963/17 dt. 13.07.2017.
51. Exh. P73 Evidence closure pursis filed by prosecution. B. Defence : Nil. C. Court Exhibits : Nil. D. Material Objects : Sr. No. Material Object Number Description
1. Art.1 Knife.
2. Art.2 Colly
3. Art.2A Wrapper alongwith Label affixed on article mobile.
4. Art.3 Shirt. (Checks shirt of red and gray colour of accused.)
5. Art.3A Wrapper with Label of Shirt.
6. Art.4 White Baniyan. (of accused).
7. Art.4A Wrapper with Label of Baniyan.
8. Art.5 3/4th Pant. (of accused).
9. Art.5A Wrapper with Label of 3/4th Pant.
10. Art.6 Colly
11. Art.6A Wrapper alongwith Label of Burkha.
12. Art.7 Colly Blood stained soil and simple soil.
13. Art.8 Colly Four photographs of deceased. Mobile Phone alongwith its battery. (Black colour mobile phone of L. G. Company @ Battery) Veil (Nakab). :7 : JUDGEMENT IN S.C.440/2017
14. Art.9 CD.
15. Art.10 Printed Kurta
16. Art.11 Yellow Leggings.
17. Art.12 Green white colour Scarf.
18. Art.13 White colour Brassier.
19. Art.6A Label of Art.6 Burkha.
20. Art.10A Label and wrapper of Art.10.
21. Art.11A Label and wrapper of Art.11.
22. Art.12A Label and wrapper of Art.12.
23. Art.13A Label and wrapper of Art.13.
24. Art.14 Underwear
25. Art.14A Label and wrapper of Art.14.
26. Art.15 Tait (Tawiz).
27. Art.16 Black colour Veil (Burkha).
28. Art.15A Label affixed on Art.15 and Art.16.
29. Art.1A Wrapper @ Label of Art.1 (Knife). Unmarked VPR/MPR : One CD, one photograph of accused & one photograph of deceased/victim, one CD in sealed packet attached to (Exh.63 Application for leading secondary evidence). ORAL
JUDGMENT (Delivered on 30th March, 2023)
1. The accused are being tried for alleged offence punishable u/s.302 of Indian Penal Code, 1860 (in short, "IPC"), in Crime No.176/2017, registered by Vakola Police Station, Mumbai.
2. It is the case of the prosecution that the complainant lodged a complaint contending that he is working as PSI and was deputed at Vakola Police Station, Mumbai. On 09/04/2017 at about 8.00 p.m., he was on duty and at 8.45 p.m., he received information from Police Bukkal No.113589 of Vakola Traffic Department, who came :8 : JUDGEMENT IN S.C.440/2017 to police station with three persons and one another person was caught hold of, brought in the police vehicle. He informed that the person who was brought, has assaulted one lady and slit open the neck of the victim at Hansbrugha Road, near Nursery in Santacruz (E), Mumbai and when he was running away, the police and the persons accompanied him, has followed and caught hold of him. On enquiry with the said person, he disclosed his name as Ambaji Shivaji More and disclosed the name of the deceased as Sofia Mohammed Shoaib Hussain Shaikh. He was taken into custody and informed to the senior officers and further, he went to the place of incident at 20.55 hours. At the place of incident, he found one girl, aged 16 to 17 years, lying in a pool of blood and at that time, the mobile van came there and the victim was taken to V. N. Desai Hospital for treatment, where she was declared dead on arrival. Based on these allegations, the concerned police officer lodged a complaint and accordingly, offence was registered. Further investigation was carried out, spot Panchnama was prepared, the body of the victim was forwarded for postmortem, the samples and other incriminating evidence collected and statements of the witnesses were recorded. On completion of other formalities and investigation, the chargesheet came to be filed before the Ld. Metropolitan Magistrate, Bandra, Mumbai.
3. The Ld. Metropolitan Magistrate by order dated 13/07/2017, committed the case to the Court of Sessions, Gr. Mumbai and accordingly, the matter is allotted to this Court for trial.
4. My Ld. Predecessor framed charge against the accused vide Exh.3.The charge is read over and explained to the accused in vernacular. The accused pleaded not guilty and claimed to be tried. :9 :
5. JUDGEMENT IN S.C.440/2017 To bring home the guilt of the accused, the prosecution examined in all fifteen witnesses and also relied upon various documents in pursuance of the investigation as stated above.
6. As there was incriminating evidence against the accused, the statement of the accused was recorded u/s.313 of Cr.P.C. and the accused entered defence simpliciter of being falsely implicated and denial.
7. Heard the Ld. Chief Prosecutor who vehemently submitted that the postmortem report and the evidence of P.W.5 Dr. Sandeep Ingle shows that the victim had suffered serious injuries and the nature of injuries clearly show that the death of deceased was homicidal in nature. The photographs of the deceased as well as the evidence of the medical officers establish the homicidal death of the victim. The victim was brutally stabbed and had more than twentyfive injuries on her person of which twentytwo injuries are incised or stab wounds or cut wounds, which are clearly possible by a sharp object like knife. In view of these facts and circumstances, there is nothing brought about to show that these findings are incorrect. The postmortem doctor has clearly stated that the injuries are possible by a sharp weapon like knife and considering the same, homicidal death is established. The said incident of assault is witnessed by two persons i.e. P.W.3 Mohd. Afsar Salim Khan & P.W.4. Imran Ahmed Sayyed. P.W.3 was walking along the said road and saw the accused assaulting and hence, he raised an alarm and cried and shouted and crossed the road to confront accused and then followed the accused and caught hold of him. He :10 : JUDGEMENT IN S.C.440/2017 also saw that there was one motorcycle rider, who was also chasing the same accused and the motorcycle rider fell down and then, again he carried on the chase. P.W.4 is the second eyewitness ,namely the said motorcycle rider. He was driving the motorcycle and in the light of the motorcycle saw the incidence and shouted and then followed the accused, when he was trying to run away. The said two witnesses have caught hold of the accused and then contacted P.W.7 PC Tushar Murlidhar Bhagwat, who was the traffic police, present at the place of incident nearby. They, alongwith P.W.7., the accused, P.W.3 and P.W.4 went to the police station and that evidence is clearly established by P.W.2 PSI Yogesh Langute and P.W.13 P.I. Nilesh Pramod SalunkhePatil. Considering these circumstances, the evidence of P.W.3, P.W.4 & P.W.7 clearly establish the fact that the accused is perpetrator of crime. He was seen stabbing and assaulting the deceased. Thus, these circumstances are sufficient to bring home the guilt of the accused. P.W.8 Manoj Parshuram Yadav, is the panch to the spot and panch to the seizure of other articles. P.W.11 Shankar Ramdas Naidu is the person, in whose presence the accused had shown the place where he had thrown the knife and the search & seizure of the knife took place in the said Nala. The knife was found in the said Nala and it is connected to the conduct of the accused of showing where he had thrown it. Thus, if one considers this evidence on record, the spot is corroborated, the knife recovery is corroborated to the accused and the clothes of the accused are seized. The CA reports carried out clearly show the said involvement. The CA report shows the corroboration of the blood stains on the clothes of the accused and deceased. Considering all the circumstances, although there are certain lacunas in the investigation that does not support innocence :11 : JUDGEMENT IN S.C.440/2017 of the accused. The accused has not given any explanation and considering the same, the accused be convicted and sentenced accordingly.
8. Heard Ld. Counsel for the accused, who vehemently and persistently submitted that the duty of the prosecution is to bring home the guilt of the accused beyond reasonable doubt and it is for the prosecution to establish all the facts to bring home the guilt of the accused. He further pointed out that the evidence of P.W.2 PSI Yogesh Langute, is totally unreliable. According to P.W.2, three other persons and two traffic police brought one person. Thus, there were six persons, which is contrary to the evidence of the traffic police and two witnesses that they three took the accused to police station. It is surprising that the injured victim was kept lying at the place of incident itself. The accused was followed, caught hold of, beaten and then taken to the police station and thereafter, the police go to the victim and taken her to the hospital. This entire conduct of police and witnesses is highly unreliable and cannot be believed. As regards evidence of P.W.3, he has stated that he reached the home at 9.30 p.m. whereas the FIR is registered at 9.30 p.m. and thus, his presence is doubtful and his statement is recorded belatedly. There are no blood stains on the person of this witness, which is counter to the entire case. He claims that five persons went to the police station. He does not acknowledge the presence of other witnesses. It is the case of the prosecution that the accused was beaten up by the persons, who caught hold of him. None of these persons allege to have beaten the accused or the prosecution does not state that these witnesses beat the accused and thus, it is these witnesses who have not seen the incidence and also :12 : JUDGEMENT IN S.C.440/2017 not caught hold of the accused and not taken to the police station. They are staged witnesses. Considering these facts and circumstances of the case, the evidence of P.W.3 and P.W.4 cannot be relied upon. Neither P.W.3 nor P.W.4 confirm the presence of one another. There is a discrepancy with regard to the timing of both the witnesses as well as there is absence of injury certificate of P.W.4. P.W.4 was well acquainted with the police and other staff. The other independent witnesses are not examined. The friend of this witness P.W.4 was at the place of incident but, he is not examined and his statement is not recorded. Thus, considering the evidence P.W.3 and P.W.4 cannot be said to be eyewitnesses. As regards evidence of P.W.7 apparently as P.W.3 and P.W.4 were not the eyewitnesses, this witness states that the person who caught hold of the accused beat the accused and thus, as these witnesses P.W.3 and P.W.4 have not assaulted the accused, they are not the eyewitnesses. This witness did not take any effort to save the victim who was injured and in fact did not even see the victim. It is totally unbelievable conduct. There is no document of appointing the said traffic police at the place and thus, his presence there is highly doubtful. Surprisingly, although this witness was a few feet away from the place of incident, does not know the place of incident. There is counter evidence of this witness as to number of persons travelled in the police vehicle to the police station. This witness has refreshed his memory prior to evidence before the Court without permission and considering the same, it is doubtful about his evidence and same cannot be relied or considered. Thus, the evidence of these witnesses does not support the case of prosecution. The evidence of P.W.9 the Medical Officer is contrary to the evidence of P.W.3 and P.W.4 as he mentions the time of the :13 : JUDGEMENT IN S.C.440/2017 incident to be 9.15 p.m. which is counter to the case of P.W.3 and P.W.4 as well as P.W.7. In such circumstances, the evidence of P.W.3, P.W.4 and P.W.7 is washed away. P.W.5 is the Medical Officer, who conducted postmortem and he has not verified the injuries with the inquest. Further, the actual notes taken during the postmortem are not filed on record and thus, preparation of false case is highly probable. Similarly, the knife was never forwarded to the said doctor for examination. In such circumstances, the post mortem report cannot be relied upon. The evidence of P.W.6 Pramod Vanshnarayan Singh, the shopkeeper, from whom the knife was purchased, is doubtful, as he did not identify the accused and his statement was recorded much before that. As regards P.W.8 Manoj Parshuram Yadav, his presence at the place is doubtful. He discloses that he was there in the afternoon and the Panchnama is alleged to be drawn at midnight. The accused did not show the place of incident and thus, it is counter to the evidence and the Panchnama and so also the case of prosecution. It is surprising that although there are two panchanamas of the spot and seizure of clothes, the second panch is different in both the cases. The star witness P.W.3 was already at home when the Panchnama was prepared and thus, his presence is highly doubtful. For such post activity, said panch was in police station for three to four hours. Thus, considering all the facts and circumstances of the case, the seizure of clothes of the victim, of the accused as well as the spot Panchnama is highly doubtful and cannot be relied upon. To highlight discrepancies, the investigating officer P.W.13 states that three persons and one accused came to him and he did not go to the police station but went to the place of incident which Is not probable. He does not disclose that friend of P.W.4 or P.W.3 was :14 : JUDGEMENT IN S.C.440/2017 present at the place of incident. How complaint came to be lodged is not stated by him when the complainant was in hospital. The Panchnamas clearly show the panchas to be at the police station and not at the place of incident. How the panchas were brought at late midnight is highly doubtful. The seizure of the knife is highly doubtful. The search was taken for three days without panchas and alleged conduct or finding of knidfe is said to be recorded only on the last date. Surprisingly, the investigating officer after three days of search was exactly aware of the time when the knife would be recovered as he had called the video recording person for that particular slot. Thus, the entire aspect of seizure is without disclosure and highly doubtful. Moreover, none of the witnesses or the investigating officer explained or stated as to how and when the knife was thrown in the said Nala. Thus, the presence of the knife or the said knife was being used for the crime, is highly doubtful and not established by the prosecution. The photographer did not visit at night and thus, the entire photographs are doubtful. Moreover, there are no negatives produced on record as well as the photographs are not primary evidence to be proved. The prosecution has failed to establish any cogent evidence or proof against the accused. The alleged motive of having a love affair and break up is not proved. Evidence of the witnesses is doubtful, witnesses are interested or known witnesses, the recovery is falsely shown, photographs are not proved, false CD is prepared, the place of incident as well as the time of incident is highly doubtful. No Test Identification Parade has been conducted as apparently the witnesses were not knowing the accused. Considering all the facts and circumstances, the prosecution has failed to establish that the witnesses have corroborated the case of prosecution. There is no :15 : JUDGEMENT IN S.C.440/2017 case of either of the witnesses or prosecution that the accused had assaulted the victim on twentyfive occasions as pointed out in the postmortem report. Surprisingly, no one had intervened and there are no eyewitnesses at a crowded place. Neither P.W.3 nor P.W.4 intervened and tried to save the girl. The injuries on the person of accused are not explained. There is no prosecution lodged for injuries on the accused. Considering these facts, the entire case of prosecution is highly unreliable and hence, the accused be acquitted.
9. Perused the chargesheet, evidence on record and considered the submissions. Following points are arise for my consideration and I answer the same as under for the reasons stated hereinafter : POINTS FINDINGS
1. Whether the prosecution establishes that the death of Sofia was an homicidal :: death ? Yes, in the affirmative
2. Whether the prosecution establishes that the accused caused the injuries resulting into homicidal death of Sofia on :: 09/04/2017 ? Yes, in the affirmative
3. Whether the prosecution establishes that accused has committed any offence as :: alleged ? Yes, u/s.302 of IPC
4. What order ? As per final order. :: :16 : JUDGEMENT IN S.C.440/2017 REASONS AS TO POINT NO.1 :
10. With regard to the nature of injuries, one has to consider the evidence of two medical officers. P.W.9 Dr. Shashank S. Patekar, is the Medical Officer of the V. N. Desai Hospital. He deposes that on 9th of April, 2017, the victim was brought at 9.15 p.m. and he found that the victim had sustained multiple injuries and observed deep CLW on the left side and she was declared dead on arrival. He had seen some other injuries also, he collected the blood samples and handed over them to the police. He has brought the Casualty Register and the relevant extract is at Exh.39. According to him, the injuries are possible by the knife and the injuries seen by him are sufficient to cause death in ordinary course of nature. The medical officer specifically stated that the incident is mentioned to have occurred at 9.15 p.m. and denied that he had only seen four injuries. He has no idea if, any person accompanied the deceased. On perusal of Exh.39, the entries are available at serial No.3 to 80. It shows that the victim is seen to be brought at 9.25 p.m. and the incident is shown to be at 9.15 p.m. in the history. The victim was found to be dead on arrival. He has seen the deep structures of neck on left side, punctured wounds are seen over abdomen, cut injuries seen over abdomen, both elbows i.e. left arm and right flank etc. Thus, evidence of P.W.9 is well supported by Exh.39. It is seen that the victim was brought at 9.25 p.m. and she was declared to be dead on arrival.
11. The evidence of P.W.2 also clearly shows that the accused was brought to the police station at 8.45 p.m. and that he collected :17 : JUDGEMENT IN S.C.440/2017 information for about 10 to 15 minutes and then, he went to the spot within ten minutes and took the victim to Desai Hospital and he reached the hospital at about 9.30 p.m. Thus, the evidence of P.W.2 is well corroborated and tallies with the evidence of the Medical Officer P.W.9 and Exh.39.
12. The evidence of P.W.5 Dr. Sandeep Ingle, is also of relevance, so much so that he has conducted postmortem of the victim on 10 th of April, 2017. He found as many as twentyfive injuries as under and the same are mentioned in Column No.17 of the postmortem report. Column No.17 : Surface wounds and injuries
1. Cut Throat injury present over left side of neck slightly obliquely placed at the level of laryngeal prominence in midline. It is situated 4.5cm below the chin, 8.5cm above the suprasternal notch, 2.5cm below the left angle of mandible and 7cm below the left mastoid measuring 8.5cm x 5.5cm x bone deep. Margins clean cut showing skin tags in between at places, blood infiltrated reddish in colour. Lateral angle is sharp and acute, directed laterally to medially inwards. Tailing of wound present over anteromedial aspect of neck. Underlying thyroid cartilage, glottic part of larynx, laryngopharynx, soft tissue, blood vessels and musculature cleanly cut corresponding to surface injury alongwith cut fracture of left sided body of third cervical vertebra measuring 3cm in length and maximum depth of 3mm. Evidence of left side of internal jugular vein completely incised and common carotid artery partially incised.
2. Stab wound wedge shaped present over anterior aspect of epigastric region in midline situated 20cm below the suprasternal notch, lower angle is 10.5cm above the umbilicus, obliquely placed measuring 3.5cm x 1cm x cavity deep, margins clean cut, blood infiltrated reddish in colour with upper angle is sharp and acute, beveling seen on lower margin. The track of injury directed downward, inwards, convergent and medially causing a cut injury in underlying subcutaneous and muscular tissue of size 3.5cm x 1cm, margins cleancut and blood infiltrated further causing perforated sharp cut injury over :18 : JUDGEMENT IN S.C.440/2017 anterior surface of stomach of size 3.5cm x 1cm x cavity deep, margins clean cut and blood infiltrated.
3. Stab wound wedge shaped present 0.2cm lateral to the above mentioned injury in right side of epigastric region situated upper angle is 20cm below the suprasternal notch, lower angle is 9.5cm above the umbilicus, vertically placed measuring 2.2cm x 1.2cm x cavity deep, margins clean cut, blood infiltrated reddish in colour with upper angle is sharp and acute. The track of injury directed downward, inwards, convergent and medially causing a cut injury in underlying subcutaneous and muscular tissue of size 2.2cm x 1.2cm, margins cleancut further causing a sharp cut injury over right side of medial 1/3rd of last costochondral cartilage of size 4.5cm in length, margins clean cut blood infiltrated further causes a perforated wound over underlying liver parenchyma i.e. anterior aspect of left lobe of liver of size 2.2cm x 0.5cm x parenchyma deep with exit wound over posterior surface of left lobe of liver, margins clean cut, blood infiltrated, reddish in colour.
4. Stab wound wedge shaped present 2cm lateral to the above mentioned injury in right hypochondriac region situated upper angle is 21cm below the right midcalvicular line, lower angle is
20.5cm above the right midinguinal point, 4cm lateral to the midline, vertically placed measuring 3cm x 1cm x cavity deep, margins clean cut, blood infiltrated reddish in colour with upper angle is sharp and acute. The track of injury directed downward, inwards, convergent and medially causing a cut injury in underlying subcutaneous and muscular tissue of size 3cm x 1cm, margins cleancut further causing a sharp cut injury over underlying liver parenchyma i.e. anterolateral aspect of right lobe of liver of size 3cm x 0.2cm x parenchyma deep, margins clean cut and blood infiltrated.
5. Stab wound wedge shaped present over left hypochondriac region situated upper angle is 28cm below the left mid calvicular line, lower angle is 7cm lateral to the midline, obliquely placed measuring 1.2cm x 0.5cm x muscle deep, margins clean cut, blood infiltrated reddish in colour with lower angle is sharp and acute. The track of injury directed upward, inwards, convergent and medially causing two cut injuries in underlying subcutaneous and muscular tissue of size 5cm x 2cm each, margins cleancut and blood infiltrated reddish in colour.
6. Incised wound present over anterior aspect of left side of :19 : JUDGEMENT IN S.C.440/2017 epigastric region, situated 17cm below the suprasternal notch, 2cm lateral to the midline, vertically placed measuring 1cm x
0.5cm x tissue deep, margins clean cut, blood infiltrated reddish in colour with lower angle is sharp and acute.
7. Incised wound present over lateral aspect of right hypochondriac region situated upper angle is 16cm below the right nipple, lower angle is 9cm lateral to the midline, slightly obliquely placed measuring 2cm x 0.2cm x tissue deep, margins clean cut and blood infiltrated, reddish in colour.
8. Superficial incised wound present over lateral aspect of left hypochondriac region, situated 10.5cm below the left nipple, horizontally placed measuring 1.5cm x 0.2cm x tissue deep, margin clean cut and blood infiltrated reddish in colour.
9. Incised wound present over right lumbar region situated 4cm above the right anterior superior iliac spine, 11cm lateral to the midline, horizontally placed measuring 3cm x 1cm x muscle deep, margins clean cut and blood infiltrated reddish in colour.
10. Incised wound present left side of umbilical region situated 33cm below the suprasternal notch, 1cm lateral to the midline, 2cm above and lateral to the umbilicus, slightly obliquely placed measuring 2cm x 0.5cm x tissue deep, margins clean cut and blood infiltrated reddish in colour.
11. Superficial incised wound present over left side of neck, slightly obliquely placed situated 1.5cm below the injury no.1 starting from 6.5cm below the chin, 6cm above the suprasternal notch,
8.5cm below the left angle of mandible and 11cm below the left mastoid measuring 10.5cm x 0.5cm x tissue deep. Margins clean cut, blood infiltrated reddish in colour with lateral angle is sharp and acute. Tailing of wound present over medial end.
12. Stab wound wedge shaped present over lateral aspect of left side neck, situated 6.5cm below the left mastoid measuring 1cm x 0.4cm x muscle deep. Margins clean cut and blood infiltrated reddish in colour with upper angle is sharp and acute.
13. Incised wound present over extensor aspect of upper 1/3rd of right forearm, vertically placed measuring 2cm x 1cm x muscle deep, margins clean cut, blood infiltrated reddish in colour with lower angle is sharp and acute.
14. Superficial incised wound present over dorsal aspect of middle phalanx of right ring finger measuring 1.2cm x 0.2cm x tissue :20 : JUDGEMENT IN S.C.440/2017 deep, margins clean cut and blood infiltrated reddish in colour.
15. Incised wound present over anterior aspect of upper 1/3rd of left arm, obliquely placed, situated 11cm below the left shoulder, 13.5cm above the left elbow measuring 2cm x 1cm x tissue deep, margins clean cut and blood infiltrated reddish in colour with lower angle is sharp and acute.
16. Incised wound present over posterior aspect of lower 1/3rd of left arm, vertically placed, situated 22.5cm below the left shoulder, measuring 7cm x 2cm x muscle deep, margins clean cut and blood infiltrated reddish in colour with lower angle is sharp and acute.
17. Perforated incised wound present over flexor aspect of middle 1/3rd of left forearm, obliquely placed, measuring 4cm x 1.5cm x muscle deep, causing exit wound of size 1.5cm x 0.5cm x muscle deep margins clean cut and blood infiltrated reddish in colour.
18. Incised wound present over palmar surface of left hand between web space of left thumb and index finger, horizontally placed measuring 4cm x 2cm x muscle deep, margins clean cut, blood infiltrated reddish in colour with lateral angle is sharp and acute.
19. Incised wound present over dorsal aspect of proximal phalanx of left thumb, obliquely placed measuring 1.2cm x 0.3cm x tissue deep, margins clean cut, blood infiltrated reddish in colour with lateral angle is sharp and acute.
20. Incised wound present over tip of left ring finger, horizontally placed measuring 1cm x 0.3cm x tissue deep, margins clean cut, and blood infiltrated reddish in colour with lateral angle is sharp and acute.
21. Incised wound present over medial aspect of lower 1/3rd of palmar surface of left hand, vertically placed measuring 1cm x
0.2cm x tissue deep, margins clean cut and blood infiltrated reddish in colour.
22. Incised wound present over posterior aspect of lower 1/3rd of right thigh, horizontally placed measuring 1.5cm x 1cm x tissue deep, margins clean cut, and blood infiltrated reddish in colour with medial angle is sharp and acute.
23. Abraded contusion present over left side of ala of nose measuring 1cm x 0.3cm, reddish in colour. :21 : JUDGEMENT IN S.C.440/2017
24. Abraded contusion present over right side of middle 1/3rd of lower lip measuring 0.3cm x 0.2cm, reddish in colour.
25. Abraded contusion present over left side of lateral corner of lower lip measuring 1.5cm x 0.3cm, reddish in colour.
13. The postmortem report is at Exh.29 and the Cause of Death Certificate is at Exh.30. He has also mentioned the internal examination and injuries seen. The neck was split open. He found corresponding injuries to the internal organs, to the stomach etc. and also to other various vital internal organs. According to him, the injuries found were antemortem in nature and are sufficient to cause death in ordinary course of nature. According to him, the death is due to shock and haemorrhage due to cut throat injury associated with multiple stab wounds. He opined that the knife i.e. Article ‘1’, before the Court, can cause the said injuries.
14. He has stated that he saw the inquest Panchnama and he is unable to state if, the injuries tally with the postmortem report. This can be because the inquest panchnama was never put before him at the time of evidence. The said witness was not confronted with the discrepancies in injuries if any and also the inquest Panchnama to point out the discrepancies if any. And considering the same, this aspect cannot be said to be counter to the veracity of the said witness.
15. This witness has fairly submitted that the knife was never forwarded to them for their opinion. It is brought about in the cross examination that rough notes were prepared and accordingly, on the basis of the notes, the postmortem report was prepared. It is brought about in his crossexamination that the final report was :22 : JUDGEMENT IN S.C.440/2017 prepared immediately after the examination. He has not brought the said rough notes and it would not be possible to produce the said notes, as the same are not preserved by him. At the outset, considering this evidence, it is apparent that at the time of conducting postmortem, it is difficult to fill up the form of the post mortem more os type it down. Certainly, some rough notes would be prepared and same would be filled up in the postmortem form on the basis of the rough notes. In view of the fact that it has been brought about in the crossexamination that the postmortem report was prepared immediately, it is apparent that the medical officers prepared the postmortem report immediately. Nothing has been brought about to counter the contents of the postmortem report. In view of these facts & circumstances, I hold that there is due veracity to the postmortem report and cause of death namely Exh.29 & Exh.30.
16. The Medical Officer conducting P.M. has ruled out that such type of injuries are possible because of accidental cases.
17. It was tried to be pointed out that there is discrepancy that the medical officer states that the deceased was not treated in V. N. Desai Hospital. In fact, this is counter to the evidence of P.W.9 Dr. Shashank S. Patekar. At the outset, one has to consider the aspect of treatment being given. P.W.9 has specifically stated that the victim was brought in the hospital and declared dead on arrival and thus, no question of treatment being administered. This witness i.e. P.W.5 Dr. Sandeep Ingle has also specifically stated that he had seen the medical record of V. N. Desai Hospital. Thus, on considering the :23 : JUDGEMENT IN S.C.440/2017 evidence of P.W.5, his evidence is cogent and reliable and can safely be relied upon.
18. The evidence of the said witness shows numerous serious injuries being caused to the deceased. The neck is said to be slit opened showing the internal organs. There are injuries to various internal organs like stomach, Larynx, Trachea and bronchi, there is also injury to liver. Thus, serious injuries have been caused and the nature of injuries clearly point out to be incised and stab wounds. The nature of injuries are twentyfive in number and of serious nature. The victim to be around 16 to 17 years, and was able bodied. On consideration of the postmortem report as well as the evidence of Medical Officers, it is clear that the death is homicidal in nature. The Medical Officer as well as the nature of injuries has clearly ruled out any natural cause of death or the injuries being accidental. Hence, I answer to Point No.1 is in affirmative. AS TO POINT NO. 2 :
19. Having held that the death is homicidal, one has to consider as to whether the prosecution establishes that it is the accused, who caused the said injuries. The prosecution relies upon two eyewitnesses as well as one traffic police namely P.W.3, P.W.4 & P.W.7 in this regard.
20. P.W.3 deposes that on the eventful date, he and his friend Sharad were walking towards Ambedkar Chowk, at around 8.00 p.m. to 8:30 p.m., he saw one unknown person assaulting a lady on the road and the lady was shouting as “Helphelp, BachaoBachao”. He further deposed that he crossed the road halfway and at that time, he saw the said person, assaulting with knife on the chest of the woman and :24 : JUDGEMENT IN S.C.440/2017 when they shouted, the person started running towards Hans Bhungra Junction and they followed him. It is further in his evidence that one motorcycle crossed them and dashed the said person, who was running away and both fell down and the other person, who was running away, got up and turned left but, he was caught hold of by other persons. He tried to escape, some people beat him up and traffic police was called. In the police vehicle, the said witness, the said person, one unknown person and one Sharad went to the police station and in his presence, the said person, who was running away disclosed his name as Ambaji Shivaji More. He also identified the accused in the Court. The statement u/s.164 of Cr.P.C. of the said witness was also recorded and is available at Exh.16. The statement u/s.164 of Cr.P.C., corroborates the evidence as he deposed in the Court.
21. In his crossexamination, he stated that his friend had come to his house between 7.45 p.m. to 8.00 p.m. and they had reached the Nursery Bridge by 8.00 p.m. to 8.30 p.m. and there were number of vehicles passing by. The witness was asked and he stated that it is not a public place and there are no residential premises nearby and he further stated that the area is a secluded area and there was darkness on the road. He does not know the number of the motorcycle that dashed the said person. He does not name the traffic constable. He reached home at about 9.30 p.m. to 10.00 p.m. on that day and does not know the number of the vehicle in which they went to Vakola Police Station. A suggestion was put to him that he was suspiciously roaming and that police took him as a witness. :25 :
22. JUDGEMENT IN S.C.440/2017 One aspect that has to be considered in this case is, as to how and why this witness would take side of police or depose against the accused. No reason is shown. His presence is not doubted or shown to be an unnatural. Apparently, he is a chance witness. It is seen from the evidence that this witness behaved in a particular manner, namely, he went after the accused and carried the accused to the police station with the help of the traffic police. This conduct is doubted in the course of argument. At the outset it is difficult to state how a person would react to a particular incidence. A person could react to a particular incidence differently, although, the incidence could be the same. He could be neutral, or run away, or assist the victim or assist in catching of the culprit. It is really difficult to predict the manner in which a person would react. In order to disbelieve a persons conduct, one has to consider if, it is totally unnatural. The conduct of the present witness to follow the perpetrator of crime and to nab him and taking to the police station can certainly be not said to be unnatural.
23. It is in the evidence that the police station is barely 400 meters away. Thus, the present witness considering it fit and proper to nab the accused then to consider the victim, cannot be said to be unnatural or believable. In such circumstances, atleast his cross examination does not bring about anything to disbelieve him.
24. The evidence of P.W.4 is that on that day, he was proceeding towards the airport and then after completing the work at 8.00 p.m., was returning back to his house and when he reached near Air force Hospital, he saw that one girl is lying on the ground and one boy sitting over her and the said girl was shouting Bachao Bachao and he :26 : JUDGEMENT IN S.C.440/2017 saw the incidence in the headlight of the vehicle. The said person did not release the girl and therefore, the said witness with his friend went near the said girl and boy and asked the boy to leave the girl. When, they went near, they saw blood on the ground and also the said person was assaulting the girl and when they reached near the victim and the boy, the boy ran away and hence, he followed the boy on the motorcycle. He specifically states that he was on the wrong side and could not raise the speed of the vehicle and when he reached, the accused, who pushed him and hence, he sustained the injury on the elbow and knee, but, again he followed him. He also states that he shouted as “Pakdo, Pakdo” and the said person, whom he was following, fell on the ground and other persons also gathered and helped them to nab the said person. He specifically stated that he took the person to the traffic police and that the said person disclosed his name as Ambaji Shivaji More and he identified the accused in the Court.
25. In his crossexamination, it is pointed out that he is doing social work and he arranges camps at police station. He has not stated the number of the motorcycle. He has admitted that at the place of incidence there are no street lights and it is in dark and vehicles do not halt there. He specifically states that there are no residential houses near the place of incidence. He also stated that there were number of vehicles moving there and no vehicles halted. It was pointed out to him that he could have seen the red coloured engine oil and mistaken it as blood, which he denied specifically. It was tried to be brought about that the headlight of his vehicle was weak because of its age, which he has denied. He specifically pointed out that he heard a shout of victim at a distance of about 10 ft' and that :27 : JUDGEMENT IN S.C.440/2017 the intensity of his light is about 20 ft'. He has not taken the injured to the hospital and that he was following the accused while driving on the wrong side. It is denied by him that he was traveling on the wrong side and slipped on the speed breaker and fell and the traffic constable caught him. He has denied that to appease the police, he deposed falsely. Thus, if, one considers this aspect, his evidence and his presence is well corroborated by the other witness i.e. P.W.3. Both these witnesses do not know one another. Both these witnesses have no knowledge of one another. Certainly, there would be some discrepancies in the evidence of these two witnesses. These two witnesses come from different places and have seen the incidences from different angles and locations. The said two witnesses have also witnessed the incidence in different environments, one while walking and another while running or driving the vehicle, one from this side and other from opposite side of road, one in whatever light source and another in his headlight lightsource.
26. Thus, trying to compare the evidence , word by word to be same , of these two witnesses as to what they saw is not proper. There is bound to be differences . One has to see if the differences cancel one another and hence fatal . There is consensus of both these witnesses that one person was assaulting a girl with a knife and she was lying on the ground and when, they raised a cry, he started running away, he was followed and fell and caught hold of. There is support that one motorcycle tried to follow the accused and both fell. There is common evidence of these witnesses that public caught hold of the accused and the accused was taken to the traffic police. There is commonness to the fact that they all went to Police station with the accused and met the police. There is commonness in identification of :28 : JUDGEMENT IN S.C.440/2017 accused. There is commonness is disclosure by the accused his name as Ambaji More. In view of this supporting evidence, I find that in fact the evidence of P.W.3 and P.W.4 is well corroborated with one another and supports the case of prosecution.
27. Now, I will consider the evidence of P.W.7 PC Tushar Murlidhar Bhagwat. This P.W.7 is the traffic police, who was deputed at the Hans Bhungra Junction. He stated that three persons were beating one person and when he enquired, the said persons disclosed that the person was being beaten, had given sharp weapon blows on one girl and he made a call Vakola Police Sstation, who sent a vehicle and took the said three persons and another person in the vehicle at Vakola police station and the name of the person, who was caught hold of was Ambaji Shivaji More and he identified the said person to be the accused in the Court. His entry is not available on the record. He is not aware about the spot of incidence. The distance between the junction and the spot of incidence is said to be about 200 mtrs to 250 mtrs. Apparently, he did not observe anything untoward till he saw the three persons assaulting one person. Thus incident occuring on a secluded place is well supported. The suspected person and the other persons were on the junction for about 10 to 15 minutes. He specifically stated that PSI Langute enquired with him namely P.W.2. This is supported by the Complaint and evidnec of PW 2. He was in police station for 20 to 25 minutes. Thus, if, one considers the evidence of this witness, it corroborates evidence of P.W.3 and P.W.4 that they carried the accused to the police namely the traffic police. Considering the fact that the said police was the traffic police, he contacted the local general police and then took these persons to the police station and handed over him (accused) to the responsible :29 : JUDGEMENT IN S.C.440/2017 police officers. Thus, mere nonfiling of his duty record, will not make the evidence of this witness unreliable. The evidence of P.W.3 and P.W.4 clearly supports and is well corroborated by this witness i.e. P.W.7 PC Tushar Murlidhar Bhagwat.
28. Now, we shall consider the other evidence led by the prosecution. P.W.1 is the panch witness for house search of the house of the accused. Nothing was found incriminating and the Panchnama is at Exh.18, the identification of the accused is verified from the documents at Exh.19, recovered from the place of incidence namely the house of the accused. Thus, this witness evidence does not take the case of prosecution any further. We have already considered the evidence of P.W.2, P.W.3 and P.W.4. P.W.5 Medical Officer.
29. P.W.6 Pramod Vanshnarayan Singh, is the alleged Shopkeeper from whom the accused is said to have purchased the knife. The evidence of this witness will not support the prosecution to take the case further, as he has not identified the said person (accused) and has merely identified the knife. Thus, this does not take the case of prosecution further to link the accused with that of the incidence.
30. P.W.8 Manoj Parshuram Yadav, is the panch to the spot and clothes of the accused. He states that when, he went to the police station for his work, police asked him to act as a punch and accordingly, clothes of the accused were seized which were on his person and that they were stained with blood and the accused was having swelling on his one eye. His mobile was also seized and accordingly, Panchanama was prepared at Exh.35. He identified the articles namely Article '3' shirt, Article '4' Banian & Article '5' pant and the wrappers to the said articles which we are having signature :30 : JUDGEMENT IN S.C.440/2017 and same are identified as article '3A', '4A' & '5A' respectively. This witness further states that the accused has shown the place of incidence and the place of incidence is near one bridge and he went there with the police and there was staff of police, forensic lab, cameramen and the person who caught hold of the accused. This corroborates the case of the witness P.W.4 who states that he had placed his friend there to look after the deceased and injured person. At the place, he found some blood and Burkha (nakab) and some blood stains and other samples were collected and photograph was also taken and the spot Panchnama is at Exh.36. The Nakab is at Article '6'. There is a discrepancy of time and it appears to be natural and it is said to be 01.15 p.m. instead of 01.15 a.m. He does not know the nature of clothes given to the accused for change of clothes. The first Panchanama of personal search was completed at
02.05 and immediately, thereafter, they went to the place of incidence. In his crossexamination, he specifically stated that the second panch, who acted on the personal search was not alongwith him to the spot Panchnama. This is corroborated by the Panchnamas on record. The said witness returned to the police station after the Panchnama process was completed. He identified the accused to be the same person. The Panchnama is seen to be in consonance with the evidence on record except the time period of p.m. or a.m. It is said that P.W.3 has shown the place of incidence and this discrepancy is pointed out to point out that P.W.3 had reached his residence at 10.00 p.m. and thus, could not have shown the place of incidence. One does not know if, he again returned to the place of incidence. The blood stains were seized, the Nakab was seized and blood samples were also collected. In my view, there is nothing on :31 : JUDGEMENT IN S.C.440/2017 record to disbelieve the said witness. And this supports the case of prosecution.
31. P.W.10 Nikhil Kalyan Shivalkar, is the photographer. Unfortunately, we are unable to accepts the photographs on record for want of negatives or certificate u/s.65B of the Evidence Act.
32. P.W.11 Shankar Ramdas Naidu, is the videographer of recovery of the weapon. It is not known as to how this witness could attend only at the time of recovery of the weapon when the weapon was being searched for three days. The source of knowledge of the weapon is also doubtful. Thus, I do not believe this witness.
33. Similar is the case of P.W.12 Mohd. Sultan Saifee, who is said to be the panch to the said efforts of recovery of the article. He searched for the weapon in the 'Nala' and surprisingly, found the same. It is difficult to relate all these evidence. Moreso when the circumstance of accused being able to throw the knife during fleeing or relating to the place of recovery and that of spot of incidence is absent in investigation. Considering the circumstances, I do not consider the evidence of this witness to be reliable to link up the case to that of the prosecution.
34. P.W.14 Chandrakant Chavan, is the witness from the office of the Chemical Analysis Authority. It is necessary to point out that the CA reports on record, are the copies of the record and this witness has verified that the original and the copies of the reports are the same. The CA reports are at Exh.P60, Exh.P68, Exh.P69 & at Exh.P70. The sample of blood of the accused is haemolysed. The Scalphairs and nail clippings are of the victim and shows to contain :32 : human blood. JUDGEMENT IN S.C.440/2017 The blood group of victim is said to be not determined because of it being haemolysed. The human blood is found on the Burkha, Kurta, Scarf, Brassiere, leggings, shirt & three fourth pant. In these circumstances, the evidence of Chemical Analyzer, merely relates to the human blood and cannot be conclusive evidence to relate the incident with that of the evidence on record. The evidence of P.W.15 Ms. Vijaya Vasant Kudle relates to the CCTV footage. As pointed out earlier, the said CCTV footage or video footage and other evidence is not produced on record for examination by this Court physically.
35. Last but not the least, is the evidence of the Investigating Officer P.W.13 PI Nilesh Pramod SalunkhePatil, who stated that he was night duty PI. When the information was received and he went to the place of incidence, before which the traffic police and three persons came to the police station. At the spot, he found the girl from community lying in injured condition and he removed the injured to the hospital and directed the staff to protect the spot. The victim was identified by her relatives. He has prepared inquest Panchnama, saw the injuries, seized the clothes of the deceased and identified the articles, which are present before the Court. The witness as well as accused were forwarded for medical examination and the FIR is also recorded, the clothes of the accused were seized, spot Panchnama was prepared, samples collected, statements of witnesses recorded, knife seized at the instance of the accused, the CDR reports shown exchange of conversation and SMS. In the cross examination, nothing was brought about to disbelieve the investigation. Yes, there are certain lacuna in the investigation, no memorandum of the discovery statement was prepared for recovery :33 : JUDGEMENT IN S.C.440/2017 of knife at the instance of accused. There is also absence of evidence of the victim's parents or relatives or other circumstances, for motive as well as the other relationship of accused and the deceased. Considering the same, these discrepancies are seen. It is necessary to consider the test identification parade is only a corroborative nature of investigation tool.In the present case, the evidence of the witnesses clearly shows that the accused was caught hold immediately ,red handed and thus, the question of test identification parade becomes redundant. The aspect of recovery of knife has not been considered by me as fatal again, as it is a corroborative evidence. In the present case, there are two eyewitnesses and for the reasons stated hereinbefore their evidence is reliable and substantial. The evidence of the two eyewitnesses corroborates one another and the clearly link the accused and to the injuries caused. The injuries clearly relate to the death of the victim.
36. Ld. Advocate for the accused relied on the following cases :
1. The State of Maharashtra V/s. Pramod s/o. Dhanraj Gajbhiye, 2018 ALL MR (Cri) 1863.
2. The State of Maharashtra V/s. Parshu s/o. Ramji Khillare & ors., 2018 ALL MR (Cri) 343.
3. Mahendra Singh & ors. V/s. State of M.P., MANU/SC/0752/2022.
4. Ravi @ Galya Ramchandra Wankhede V/s. The State of Maharashtra, 2017 ALL MR (Cri) 1972.
5. The State of Maharashtra V/s. Jaysing Vitthal Shetke & ors., 2021 ALL MR (Cri) 4419.
6. Birnami and another V/s. State of U. P., 2023 Cri. L. J. 198.
7. C. Magesh And others V/s. State of Karnataka, (2010)5 Supreme Court Cases 645. :34 : JUDGEMENT IN S.C.440/2017 The said rulings relied upon relates to the specific facts of cited cases and there is much discrepancy in the facts of the cited cases and present case and hence, cannot be made applicable directly.
37. Thus, prosecution by the evidence of these witnesses have clearly established that it is the accused who caused the said injuries and hence answer point No. 2 in affirmative. AS TO POINT NO. 3 :
38. In view of the findings to Point No.1 and Point No.2, one has to consider that if, there are circumstances brought about to bring the incidence under any of the exceptions. The evidence of the witnesses as well as the statement of the accused u/s.313 of Cr.P.C., does not bring the said assault in any of the exceptions. Thus, the nature of incidence, the causing of twentyfive injuries shows the clearcut slitting of the neck, clearcut show the intention of the accused to cause death of the victim. The absence of motive or the relationship not being established could be because it was personal to the knowledge of the accused and the deceased only. It cannot be said to be detrimental to that of the case of prosecution. Considering the same, the prosecution has fairly brought home the charge against the accused namely that the accused has murdered the victim on 9 th of April 2017, as charged with and hence, I convict the accused for commission of offence punishable u/s.302 of IPC. At this stage, I stop the judgment to hear the accused on the point of sentence. Digitally signed by ANIL ANIL SUBRAMANIAM SUBRAMANIAM Date: 2023.03.30 18:02:47 +0530 29/03/2022 (A.SUBRAMANIAM) SESSIONS JUDGE, CITY CIVIL COURT, MUMBAI :35 :
39. JUDGEMENT IN S.C.440/2017 I have heard the Ld. Advocate for the accused as well as accused and Ld. APP for the State on the point of quantum of sentence.
40. The accused submits that he has not committed any offence and he is innocent. He is having old aged parents and no one is there to look after them. Ld. Advocate for accused submits that accused is of tender age. He has no criminal antecedent, it does not fall in the rarest of rare case and lastly, considering the circumstances, lenient view be taken.
41. Ld. APP submits that offence is of serious nature and appropriate punishment be imposed.
42. Having considered the facts of this case, it is a cold blooded, planned murder of a young girl and with ferocity. But, even then this case would not fall within the case or rarest of rare cases. As regards Compensation the family of the deceased are well off, and the accused is poor person and hence, appropriate fine and compensation is awarded. With this, I pass the following order: ORDER
1. Accused Ambaji Shivaji More is hereby convicted for the alleged offences punishable u/s.302 of Indian Penal Code, 1860, in Crime No.176/2017, registered by Vakola Police Station, Mumbai.
2. Accused Ambaji Shivaji More is hereby sentenced to rigorous imprisonment for life and fine of Rs.5,000/ (Rs. Five Thousand Only), in default rigorous imprisonment of 06 (six) months, for offence u/s.302 of Indian Penal Code, 1860.
3. Accused is entitled for Setoff for the period undergone. :36 : JUDGEMENT IN S.C.440/2017
4. Disposal of property : All the articles be disposed off as per rule after the conformation of appellate court if any, as stated hereinafter as per rules. (a)Photographs (unmarked of victim & accused) be preserved on record of the Sessions Case and disposed as per rule as applicable to Documentary Evidence. (b)The property consisting of CD (Article '9' & unmarked CD) and CD attached to Application for leading secondary evidence (Exh.63), be forwarded to the Competent Authority for destruction as per rule. (c) Article '2' Black colour Mobile of accused Ambaji Shivaji More, be returned to him as per law and if, not claimed by him within six months of final order and confirmation, same be sold and sale proceeds by disbursed as per law. (d) Article '1' knife, be forwarded to District Collector for its disposal as per rule. (e)The remaining marked and unmarked articles, if any, be destructed as per rule.
5. The Accused is informed of his right to prefer appeal against this judgment and Order before the Hon’ble High Court of Bombay and also his right to Avail Legal aid for the same. (Dictated and pronounced in open Court). Digitally signed by ANIL ANIL SUBRAMANIAM SUBRAMANIAM Date: 2023.03.30 18:03:09 +0530 30/03/2023 Dictated on : 28th & 30th March, 2023. Transcribed on : 29th & 30th March, 2023. Signed by HHJ on : (A.SUBRAMANIAM) PRINCIPAL JUDGE, CITY CIVIL COURT, MUMBAI. (JO CODE MH01711) :37 : JUDGEMENT IN S.C.440/2017 “Certified to be true and correct copy of the original signed order”. 30/03/2023 at about 05.45 p.m. (Ms. Vidya Abhijit Mande) Stenographer (GradeI.) City Civil Court & Addl. Sessions Judge, Gr. Mumbai Name of the Hon'ble Judge : A.SUBRAMANIAM, PRINCIPAL JUDGE, City Civil Court & Addl. Sessions Judge Court Room No.19, Gr. Mumbai Date of pronouncement of Order : 30/03/2023 Order signed by Hon'ble Judge on : 30/03/2023 Order uploaded on : 30/03/2023 at about 05.45 p.m.
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