Pallavi Purkayastha Murder Case Judgement

1 Oral Judgment in S.C. No.
738/12
EXHIBIT-177
IN THE COURT OF SESSIONS FOR GR. BOMBAY
SESSIONS CASE NO.738 OF 2012
(C.C. No.3700756/PW/2012)
The State of Maharashtra
(Through DCB-CID, Unit IV, Mumbai
in C.R.No.79/2012) ... Complainant
Versus
Sajjad Ahmed Abdul Aziz Mugal @ Pathan
Age : 25 yrs.,
Resident of - Zopada Opp. Mhada Chawl,
Bhakti Park, Wadala Truck Terminal,
Mumbai 400 037.
Permanent Address :
Dist. Baramulla, Tashil Kudi,
Islamabad Gaon, Jammu & Kashmir. ... Accused
CORAM : HER HONOUR THE ADDL. SESSIONS JUDGE,
V.V. JOSHI (COURT ROOM NO.34)
DATED : 30TH JUNE, 2014, 7TH JULY,2014.
Learned SPP Mr. Ujjawal Nikam for the State.
Learned Advocate Mr. Khan Abdul Wahab for Accused.
ORAL JUDGMENT
(Dictated and pronounced in open Court)
1. The accused is facing the trial for committing murder
of young lady advocate Miss Pallavi Atanu Purkayastha and also
for outraging her modesty, for the offences punishable under
Sections 302, 354 and 449 of Indian Penal Code, 1860 (hereinafter
2 Oral Judgment in S.C. No.738/12
will be referred to as "IPC" for short) and under Sections 37(1)(a)
read with 135 of Bombay Police Act, 1951.
2. The brief facts of the prosecution case are as under :
It is the case of murder of young lady advocate Miss
Pallavi Purkayastha, who was staying with her boy friend namely
Avik Alok Sengupta at Flat No.1601, 'B' wing, 16 th Floor,
Hamilayan Height Building, Bhakti Park, Wadala (East)
Mumbai-37. They were about to get marry and it was known to
the parents of both of them. The complainant and the deceased
were law graduates and they were doing job. The complainant
Avik Sengupta was doing job at J. Sagar Associates at Law Firm
and deceased Pallavi was also doing the job in one company as a
Legal Manager. She used to go to her job at 11.00 a.m. and used
to come back at 5.00 p.m. Her timings were fixed. The timings of
Avik Sengupta were not fixed. He used to go to his job at 9.30
a.m. and used to come back after 10.00 p.m. They took the flat on
rent on 1.11.2011 and they were staying together. It was not
known to their parents that they were living together.
3. On 8.8.2012, Avik Sengupta went to his job at 9.30 a.m.
at that time, deceased Pallavi went to bathroom to take bath.
They talked with each other on mobile for 2-3 times. Avik
Sengupta was in his office, as he has to complete his assignment
and he told Pallavi that he will come at late night. At that time,
deceased Pallavi told him on mobile that the lights were kept on
coming and going. Avik asked her to inform it to guard and to
call electrician.
4. On 9.8.2012 at 4.30 a.m. the complainant Avik
Sengupta completed his work and he went with his colleagues
namely Siddharth Desai and Kanika Sachdeva in his car to his
house. He dropped Kanika at 4.30 a.m. at Colaba and Siddharth
at Juhu and thereafter he came to his house at 5.30 p.m. He
parked his car and thereafter he reached at 16
th
Floor. When he
came from lift he saw that there was blood lying in front of his flat
and adjacent to his flat and the door of his flat was slightly
opened. There was blood in said flat. When he entered the flat,
he saw that Pallavi was lying on carpet in pool of blood. He tried
to wake up her but there was no response from Pallavi. He tried
to call his friends. He tried to take the help of his neighbours but
there was no response. Therefore, he went to ground floor and he
informed about the incident to watchman. Two other persons
came there. At that time, Mr. Pathak, who was staying adjacent to
his flat was standing near the lift with his wife. They went inside
the flat and switched on the lights. Mr. Pathak called the police
by dialing 100 number. All the persons were standing there till the
police reached there and police took Pallavi to Sion Hospital.
Thereafter, police inquired the complainant and after some time,
he came to know from police that Doctor declared that Pallavi is
no more. Therefore, Avik Senguta lodged complaint against
unknown person, as he was not known, who has committed said
offence and FIR was registered against unknown person. During
the inquiry, the watchman, who was there has disclosed that the
Sajjad Pathan has committed said offence and therefore, the
police took search of accused and on 10.8.2012 police arrested
the accused under Arrest Panchanama.
5. On the basis of complaint of complainant, Crime No.
181/12 registered on 9.8.2012 at Wadala T.T. Police Station against
accused for the offence punishable under Sections 302 and 449 of
IPC. During the course of investigation the crime is transferred
to DCB-CID, Unit VI and DCB-CID Unit VI has registered C.R.No.
79/12 and has added sections 36(1) (A) r/w 135 of Bombay Police
Act against the accused. After registration of crime, initially the
inquiry was conducted by Wadala T.T. Police Station and the
crime was registered by Wadala T.T. Police Station. Thereafter, the
investigation was conducted by Crime Branch by Mr. Mahesh
Ramesh Tawade. Initially, investigation was conducted by SHO
Mr. Kanade, the Investigating Officer (hereinafter will be referred
to as the "I.O" for short) was attached to Wadala T.T. Police
Station. He has conducted Inquest Panchanama, Spot
Panchanama and Seizure Panchanama of clothes of deceased.
Thereafter, the investigation was handed over to API Mr. Mahesh
Ramesh Tawade in Crime Branch. He has conducted physical
search of accused, recorded Memorandum statement and
conducted memorandum panchanama of accused, recorded
statements of witnesses, sent samples for C.A. and DNA test,
collected reports of Postmortem and DNA test and after
completion of entire investigation, has filed charge sheet in
Metropolitan Magistrate Esplanade 37th Court, Mumbai on
3.11.2012.
6. The offence under Section 302 of IPC is exclusively
triable by the Court of Sessions, hence, Metropolitan Magistrate
Esplanade Court, Mumbai has committed the case to the Court of
Sessions and then it was made over to this Court for trial.
7. The accused produced before the Court. From the
material available on record, I found that the accused entered the
flat with intention to commit rape. From Inquest panchnama, it
shows that the pant was torn and string was broken and
therefore, charge under Section 354 is also framed against the
accused. The charge is at Exhibit-8. The contents of the charge
were read over and explained to the accused in vernacular. The
accused abjured the guilt and claimed to be tried. His defence
was that of total denial and false implication. The Statement of
Accused under Section 313 of Code of Criminal Procedure is
recorded below Exhibit-148.
8. I heard both the Learned APP for the State and
Learned advocate for the accused.
9. On the basis of facts of the case and the evidence
available on record, the following points arose for my
determination and I recorded my findings and reason for the
same as under :
Sr.
No.
Points Findings
1. Whether the prosecution proves that
deceased Pallavi Atanu Purkayastha died
homicidal death ?
-Yes-
2. Whether the prosecution proves that on or
before 9th August, 2012 at about 05.30 hrs. at
Flat No.1601, 'B' wing, 16 th Floor, Hamilayan
Height Building, Bhakti Park, Wadala (East)
Mumbai-37, the accused did commit murder
by intentionally or knowingly causing the
death of Kumari Pallavi Atanu Purkayastha,
aged 25 years and thereby committed an
offence punishable under Section 302 of IPC ?
In
Affirmative
before 9th August, 2012 at about 05.30 hrs. at
Flat No.1601, 'B' wing, 16 th Floor, Hamilayan
Height Building, Bhakti Park, Wadala (East)
Mumbai-37, the accused assaulted or used
criminal force to Kumari Pallavi Atanu
Purkayastha aged 25 years intending to
outrage her modesty and thereby committed
an offence punishable under Section 354 of
IPC ?
In
Affirmative
Sr.
No.
Points Findings
before 9th August, 2012 at about 05.30 hrs.,
the accused committed house trespass by
entering into Flat No.1601, 'B' wing, 16 th
Floor, Hamilayan Height Building, Bhakti
Park, Wadala (East) Mumbai-37 and used as a
human dwelling in order to the commission
of an offence punishable with death, to wit
murder and thereby committed an offence
punishable under Section 449 of IPC ?
In
Affirmative
5. Whether the prosecution proves that or
before 9th August, 2012 at about 05.30 hrs. in
the vicinity of Hamilayan Height Building,
Bhakti Park, Wadala (East) Mumbai-37, the
accused was in possession of Knife in
contravention of ban order to carry weapons
etc. issued by the Commissioner of Police,
Greater Mumbai vide his order No.
CP/XI(6)/LW/702(07)/2012 dated 17th July,
2007 which was in force between 18th July,
2012 and 16th August 2012 and thereby
committed an offence punishable under
Section 37(1)(a) read with 135 of Bombay
Police Act, 1951 ?
In
Affirmative
Sr.
No.
Points Findings
5. Whether the prosecution has proved any of
the offences ?
Sections
302, 354 &
449 of IPC &
Section
37(1)(a) r/w
135 of
B.P.Act.
6. What Order ? The accused
is convicted
as per final
order
R E A S O N S
10. The prosecution has examined total 39 witnesses :
1. PW-1, Mr. Avik Alok Sengupta, the complainant, at
Exhibit-14
2. PW-2, Darshan Singh Dilip Singh Bamra, independent
witness at Exhibit-19
3. PW-3, Mr. Yogesh Shrikrishna Rajapurkar, Nodal
Officer of Airtel Company at Exhibit-20
4. PW-4, Kunal Kishore Shah, neighbour of deceased
Pallavi at Exhibit-30
5. PW-5, Vikas Narayan Phulkar, Assistant Nodal Officer
of Vodafone India Limited at Exhibit-33
6. PW-6, Sunil Subhash Chandra Tiwari, Nodal Officer of
Aircel Limited at Exhibit-38
7. PW-7, Rakeshchandra Ramdujh Prajapati, Nodal
Officer of Loop Mobile Company at Exhibit-40
8. PW-8, Shekhar Vinayak Palande, Nodal Officer of Tata
Tele Services Maharashtra Limited at Exhibit-49
9. PW-9, Sadashiv Lingayya Shetty, Panch witness of
Seizure Panchanama of clothes of deceased Pallavi at
Exhibit-54
10. PW-10, Mr. Ahmed Ismail Shaikh, Driver of
neighbour of deceased Pallavi at Exhibit-56
11. PW-11, Ms. Jagriti Mohata, Panch witness of Inquest
Panchanama at Exhibit-58
12. PW-12, Vinit Vedprakash Bakshi, father of friend of
deceased Pallavi at Exhibit-61
13. PW-13, Pramila Ashrafilal Gupta, independent witness
at Exhibit-62
14. PW-14, Mosas Rao Parly, Panch Witness of Spot
Panchanama at Exhibit-63
15. PW-15, Algarson Krishnan Devendra, Panch Witness of
Recovery Panchanama at Exhibit-67
16. PW-16, Satishkumar Tangwel Devendre,
Photographer, who have taken the photographs of
deceased Pallavi at Exhibit-69
17. PW-17, Mr. Kartik Shivaji Devendra, Panch witness of
verification of keys recovered at the instance of
accused at Exhibit-71
18. PW-18, Dr. Rajesh Chandrakant Dere, who has
conducted postmortem of deceased Pallavi at
Exhibit-76
19. PW-19, Shabbir Abdul Jalil Khan, Security Supervisor
of Ivory Tower CHS, where the deceased and
complainant were staying at Exhibit-78
20. PW-20, Mohammed Sadik Mir, Security Supervisor of
Ivory Tower CHS,where the deceased and complainant
were staying at Exhibit-80
21. PW-21, Rupali Suresh Vaidya, Colleague of deceased
Pallavi at Exhibit-82
22. PW-22, Mohammed Khalid Muneer Hussain Khan,
Security Supervisor of Ivory Tower CHS, where the
deceased and complainant were staying, at
Exhibit-83
23. PW-23, Subramaniam Muttu Devendra, Panch
Witness of Memorandum Panchanama, at Exhibit-84
24. PW-24, HC 4887 Mr. Prakash Gulabrao Shirke, Police
witness, who had published Prohibitory Order of
Bombay Police Act, at Exhibit-86
25. PW-25, HC-50639, Mr. Sakharam Dattu Redekar,
Police Witness, who had sent the articles to Kalina
Forensic Lab for C.A., at Exhibit-87
26. PW-26, Dr. Amarsingh Anandrao Rathod, who had
examined the accused, at Exhibit-89
27. PW-27, ASI Narayan Satva Suryawanshi, Police
witness, who had sent articles to Kalina Forensic Lab
for C.A., at Exhibit-92
28. PW-28, Ramsevak Surajmali Gaue, independent
witness at Exhibit-93
29. PW-29, PI Mr. Vinayak Bajirao Vetal, Police witness, at
Exhibit-94
30. PW-30, Sr. PI Mr. Shirish Sudhakar Sawant, Police
witness, at Exhibit-96
31. PW-31, Mangesh Madhukar Pathak, neighbour of
deceased Pallavi, at Exhibit-99
32. PW-32, Mr. Dharmesh Mewalal Gupta, Wireman
working in Ivory Tower, at Exhibit-100
33. PW-33, Dr. Kiran Sambhaji Kalyankar, who has
collected blood samples of accused for DNA test, at
Exhibit-101
34. PW-34, PSI Mr. Ganesh Madhukar Kanade, SHO in
Walada T.T. Police Station and 1
st
I.O., at Exhibit-105
35. PW-35, Siddharth Deepak Desai, colleague of
complainant, at Exhibit-110
36. PW-36, Kannan Durai Devendra, Panch witness of
Panchanama of Physical Search of accused, at
Exhibit-111
37. PW-37, API Mr. Dhanaji Laxman Jagdale, Police
witness, who has forwarded muddemal for C.A.,
which was collected from Sion Hospital and from the
spot of incident alongwith forwarding letter, at
Exhibit-113
38. PW-38, Shrikant Hanumant Lade, Assistant Director of
Kalina Forensic Lab, Kalina, Mumbai, at Exhibit-117 &
39. PW-39, API Mr. Mahesh Ramesh Tawade, the 2nd
I.O. at Exhibit-126.
11. The prosecution has relied on the documents such as
complaint at Exhibit-15, Leave & License Agreement (page nos.
230 to 243) at Exhibit-16, Office Copy of letter issued to PW-3 dtd.
17.9.2012 at Exhibit-21, Original Customer Application Form of
Mobile no.9967889972 at Exhibit-22, Call details of Mobile No.
9967889972 at Exhibit-23 (colly.), Call details of mobile no.
9004091914 at Exhibit-24 (colly.), Certificate alongwith the call
details issued by PW-3 at Exhibit-25, Forwarding letter sent
alongwith call details at Exhibit-26, Office copy of letter from
DCB CID Crime Branch dtd. 6.10.2012 at Exhibit-27, Forwarding
letter sent alognwith cell ID address at Exhibit-28, Original bills of
August 2012 and May 2013 of Mobile No.9004091914 at Exh.
29(colly.), Letter sent by DCB CID about inquiry of subscriber and
the call details of mobile No. 9769446081 from 07/08/2012 to
09/08/2012 at Exhibit-34, Original subscriber form @ other
papers are at Exhibit-35(colly), Two certificates at
Exhibit-36(colly), Entries in the call details record of Mobile No.
9769446081 at Exhibit-37, Letter dtd. 21.8.2012 for calling the call
details and subscriber of mobile No. 9768815312 during the
period of 07/08/12 to 09/08/12 at Exhibit-39, Original subscriber
form of Mr. Doiphode at Exhibit-40, Certificate issued by PW-6 at
Exhibit-41, CDR report of Mobile No.9768815312 (6 pages) at
Exhibit-42(colly.), Letter dtd. 18.8.2012 from DCB CID received by
PW-7 at Exhibit-44, Office copy of covering letter received on
21.8.2012 at Exhibit-45, Original form of subscriber Ahmed Ismail
Shaikh at Exhibit-46, Call details bearing 13 pages at
Exhibit-47(colly.), Certificate given by PW-7 at Exhibit-48,
Original letter of reply dtd.23.8.2012 at Exhibit-50, Original form
of subscriber Arjun P. Ram at Exhibit-51, Four call details and
one cell ID at Exhibit-52(colly.), Certificate issued by PW-8 at
Exhibit-53, Seizure Panchanama of clothes of deceased at
Exhibit-55, Inquest panchnama at Exhibit-59, Spot panchnama at
Exhibit-64, Seizure panchanama of articles concealed by accused
is at Exhibit-68, Memorandum statement of accused at
Exhibit-68-A, 8 photographs of deceased Pallavi at
Exhibit-70(Colly.), Memory card at Exhibit-70-A, Seizure
Panchanama of Keys at Exhibit-72, Postmortem notes of
deceased at Exhibit-77, Memorandum statement is at Exhibit-85,
Seizure Panchanama of Knife at Exhibit-85-A, Forwarding Letter
received from DCB CID at Exhibit-90, Medical Certificate of
accused at Exhibit-91, Letter which was issued to Doctor for
collection the blood samples of accused at Exhibit-95, Back side
of Exh.95, noting written by PW-33 at Exhibit-95A, Letter sent by
PW-30 to F.S.L bears the endorsement of F.S.L. at Exhibit-97,
Letter sent to FSL on 14.8.2012 at Exhibit-98, Certificate of PW-32
at Exhibit-103, License at Exhibit-104, Carbon copy of forwarding
letter for sending four samples from Sion Hospital at Exhibit-106,
Xerox copy of ADR form is produced on say of defence counsel at
Exhibit-107 (colly.), Entry No.12 in extract of station diary at
Exhibit-108, Seizure panchanama of mobile of accused at
Exhibit-112, Forwarding letter to C.A. at Exhibit-114, Certified
copy of Birth Certificate of accused at Exhibit-116, Original
identification form of accused at Exhibit-118, Seven DNA reports
are respectively at Exhibit-119 to 125, Covering letter sent to C.A.
at Exhibit-127, Covering letter sent to C.A. at Exhibit-128, Office
copy received by Tata Phone at Exhibit-129, Letter issued to nodal
officer of Aircel company at Exhibit-130, C.A. Report dtd.
13/09/12 at Exhibit-131, C.A. report dated. 20/10/2012 at
Exhibit-132, C.A. reports respectively at Exhibit-133 to 139, Finger
Print Report (Referred in cross examination of PW-39) at
Exhibit-140, Extract of Station diary of Wadala T.T. P. Stn.
(Referred in cross examination of PW-39) at Exhibit-141, Death
Certificate of PW-1 Avik Sengupta at Exhibit-145 and Evidence
closure pursis at Exhibit-147.
As to Point No. 1:
12. Deceased Pallavi was found in injured condition at
5.30 a.m., when her friend Avik Sengupta came from his work.
The blood was lying outside the Flat no.1601 and Flat No.1602.
She was lying in pool of blood. The scene of incident itself speaks
about the homicidal death. The Inquest Panchanama at
Exhibit-59 proves that she was having injuries on head, neck and
on face, which is proved by PW-11 Jagriti Mohata, who is the
panch witness of Inquest Panchanam. She has stated that there
were about 15-16 injuries on the body of deceased Pallavi. The
injury was on her head at the left side. There were three cuts
from lips to ear and nose to ear. There were cut injuries near eye.
There was very deep cut on the neck at right side and on the right
shoulder there was very deep cut. On her right palm, there were
cuts. There were abrasions on her nose, cheek, chin and back
side of the fingers of right hand. There was very big stab injury
on the back. There was cut injury on the left side below the chest
and multiple cuts on the palm. Accordingly the panchnama was
prepared and the police obtained her signatures on the
panchnama. She has identified the panchnama which is at
Exhibit-59.
13. The spot panchanama at Exhibit-64 proves that it was
not accidental or suicidal death. The evidence of medical officer
PW-18, Dr. Rajesh Chandrakant Dere, who has conducted
postmortem of deceased Pallavi has stated that on 09/08/2012
body of Pallavi Purukayastha was brought by Wadala T. T. Police
Station through ADR No. 90/12, C. R. No. 181/12. It was brought
by PC 5535 of Wadala Police station at 5.30 p.m. along with the
inquest panchnama. He along with his subordinate colleagues
conducted the postmortem examination from 5.20 p.m. and
concluded at 6.40 p.m.
14. He has further stated in his evidence that on external
examination he found that, Rigor Mortis were well marked and
generalized. The Rigor Mortis approximately starts after 2 hours
of the death. within 8 to 10 hours Rigor Mortis developed
completely on the dead body. In next 8 to 10 hours remains as it
is and in next 8 to 10 hours it vanishes. On the basis of Rigor
Mortis the approximate time of death can be ascertained. On the
basis of Rigor Mortis in this case, the death was occurred before
14 to 16 hours before starting the Postmortem. He found the
postmortem lividity on the back and buttock of the dead body
and it was fixed. It indicates the time of death is before minimum
8 to 10 hours.
15. He has further stated in his evidence that on external
examination, he found total 16 injuries on the body.
1) Incised injury present over left parieto-temporal area of size
9 cm. X 1 cm X bone deep with clean cut margins.
2) Incised injury present over right side and front of neck,
oblique, of size 13.5 cm X 3 cm X 2 cm deep from lower part
of neck on left side to posterior aspect of neck on right side
with clean cut margins and tailing towards left side
anteriorly, with cutting of underlying vessels, muscles and
part of trachea.
3) Incised injury present over face on mandibular area on left
side, transverse from angle of mandible to middle of lower
lip of size 8 cm X 0.5 cm. X 0.5 cm., with clean cut margins
and tailing towards right.
4) Incised injury present over face on left side from malar area
to ala of nose on left side of size 7.5 cm. X 0.6 cm X 0.8 cm.,
oblique with clean cut margins, tailing towards right cutting
left ala of nose.
5) Incised injuries, two in number present over face on left
side 1 cm. lateral to left angle of eye of size 3.5 cm. X 0.5 cm.
X 0.6 cm. and 4 cm. X 0.8 cm. X 0.5 cm. communicated with
each other with clean cut margins with tailing towards
inferior side.
6) Incised injury over face on left side from tragus of left ear to
chin of size 12 cm. X 0.6 cm. X 0.5 cm., with tailing towards
right side anteriorly.
7) Curved incised injury over chest on left side, 2 cm. below
injury No. 2, of size 22.5 cm. X 0.8 cm. X 0.3 cm. with clean
cut margins and tailing towards right side inferiorly.
8) Incised injury over dorsum of right hand of size 5 cm. X 2.5
cm. X 1 cm. with clean cut margins.
9) Incised injury over base of right thumb on dorsal aspect of
size 2 cm. X 0.5 cm. X 0.8 cm. with clean cut margins.
10) Contusion over dorsum of right hand at the knuckle of
middle finger 1 cm. distal to injury no. 8 of size 1.5 cm X 1
cm., red.
11) Incised injury over right shoulder of size 11 cm. X 0.2 cm. X
0.2 cm., tailing towards downward direction.
12) Incised injury over palmer aspect of right hand at the
junction between distal and middle phalanx of index finger
of size 2 cm. X 0.5 cm. X 0.8 cm. with clean cut margins.
13) Incised injury over palmer aspect of right middle finger in
line with the injury No. 12 of size 2.5 cm. X 1 cm. X 0.8 cm.
14) Stab injury over back on right side on lumber area on right
side of size 2.5 cm. X 0.6 cm. X 6 cm., directed anteriorly
upward.
15) Abrasion over tip of nose, 1 cm. X 0.5 cm., red.
16) Abrasion over chin on right side 0.8 cm. X 0.5 cm., red.
16. He has further stated in his evidence that all the
injuries were anti-mortem injuries. Injury Nos. 1 & 2 on the vital
part of the body. These two injuries are sufficient to cause the
death in ordinary course of nature. Injury No. 2 can cause
sudden or instant death. The injury No. 3 is said to be on the
dangerous part of the body means it is on the vital part. If the
injury causes complications, there is probability of causing death
therefore it is called as dangerous part of the body. Injury Nos. 8,
9, 10, 12 & 13 may also called as Defence injuries. The injuries
are possible while resisting. Injuries Nos. 1 to 9 & 11 to 14 are
possible due to sharp cutting weapon like knife. Article 14 the
knife shown to him. The injuries Nos. 1 to 9 and 11 to 14 are
possible due to sharp side of this knife.
17. He has further stated in his evidence that he found the
internal injuries i.e. underscalp hamatoma present over left
parieto temporal area. The internal injury is corresponding to
external injury No. 1. The injury No. 2 mentioned in column 17
the victim after sustaining the injury is not in a position to speak.
The cause of death was hemorrhagic shock to cut throat injury
(unnatural). Some questions about not showing Knife and abut
time of death are asked during cross examination, it makes no
difference, as it is a evidence of expert witness.
18. Injuries mentioned in Inquest Panchanama, PW-11 in
her evidence and P.M. Report corroborates with each other.
19. Homicidal death is not denied by the accused. The
defence disputed about the time of death by giving suggestion
that as her stomach was empty, her death was caused on or about
5.30 a.m. There is no dispute about homicidal death. Through
postmortem report at Exhibit-77, spot panchanama at
Exhibit-64, inquest panchanama at Exhibit-59 and evidence of
PW-1, who is the complainant and who found that the deceased
was lying in injured condition in pool of blood proves that it was
homicidal death. Hence, I answer Point No.1 in affirmative.
As to Point No.2 to 6:
20. No doubt, this is a case, which depends on
circumstantial evidence. The burden is always on prosecution to
prove the case beyond reasonable doubt. The Hon'ble Supreme
Court has held in judgment reported in (2008) 1 SCC (Cri.) 109 in
the matter of Gagan Kanojia and Anr., Vs. State of Punjab, that -
The prosecution case is based on circumstantial
evidence. Indisputably, charges can be proved on the
basis of the circumstantial evidence, when direct
evidence is not available. It is well settled that in a case
based on a circumstantial evidence, the prosecution
must prove that within all human probabilities, the act
must have been done by the accused. It is, however,
necessary for the courts to remember that there is a long
gap between may be true and must be true.
Prosecution case is required to be covered by leading
cogent, believable and credible evidence.
The Hon'ble Court has held that they would
proceed on the well-known principles in regard to
appreciation of the circumstantial evidence, which
were noticed by the Hon'ble High Court in the following
terms :
(1) There must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it
must be such as to show that within all human
probability the act must have been done by the accused.
(2) Circumstantial evidence can be reasonably made
the basis of an accused person's conviction if it is of
such character that it is wholly inconsistent with the
innocence of the accused and is consistent only with his
guilt.
(3) There should be no missing links but it is not
that every one of the links must appear on the
surface of the evidence, since some of these links
may only be inferred from the proven facts.
(4) On the availability of two inferences, the one
in favour of the accused must be accepted.
(5) It cannot be said that prosecution must meet
any and every hypothesis put forward by the
accused however far-fetched and fanciful it might
be. Nor does it mean that prosecution evidence
must be rejected on the slightest doubt because the
law permits rejection if the doubt is reasonable
and not otherwise.
21. The counsel for accused relied on the judgment of
Hon'ble Supreme Court reported in AIR 1984 SUPREME COURT
1622, in the matter of Sharad Birdhichand Sarda Vs. State of
Maharashtra, where the Hon'ble Supreme Court has laid down
the principles for circumstantial evidence.
22. On the guidelines given by Hon'ble Supreme Court, I
would like to discuss the evidence on record by verifying whether
the prosecution has proved the case beyond reasonable doubt. I
would like first to mention undisputed facts :-
1) The complainant Avik Sengupta and the deceased
Pallavi were friends and were living together in Flat No.
1601,'B' wing, 16 th Floor, Hamilayan Height Building,
Bhakti Park, Wadala (East) Mumbai-37,
2) The accused was working there as watchman and
knowing the deceased and her boy friend. There was
practice to call the guard for any problem to the residents.
On the date of incident, the deceased was tired as the lights
were going frequently,
3) Both the accused and the deceased interacted with
each other on mobile for several times on the date of
incident,
23. The accused was working as a Watchman, is facing the
trial for the offences punishable under Sections 302, 354 and 449
of IPC and under Sections 37(1)(a) read with 135 of Bombay
Police Act. The prosecution has examined total 39 witnesses to
prove the involvement and guilts of the accused.
24. The compliant is lodged by Avik Sengupta against the
unknown person. PW-4 and PW-22 are the material witnesses to
prove the presence of accused on spot on the date of incident and
his involvement in crime.
25. PW-4 Kunal Kishore Shah is the neighbour of deceased
Pallavi and the complainant PW-1. He has deposed in his
evidence that he passed L.L.B. in the year 2006. He is doing the
job at Corporate law firm named Trilegal. In the year August
2012, he was staying at Himalayan Height 'B' Bldg., Flat No. 1602.
In flat No. 1601, Avik Sengupta and Pallavi Purkayastha were
staying. Pallavi was Advocate and Avik was also Advocate by
profession. They were his neighbouring friends.
26. He has stated in his evidence that he knows the
accused. He identified him in the Court. He was a security guard
in said building. He used to wear black colour T-shirt, black
colour Pant and there was sticker mentioned A. H. enterprise on
his T-shirt.
27. He has further stated in his evidence that on 08/08/12
he went to his job at 9.30 a.m. and on the next day i.e. on
09/08/12 he came back from his work at 1.30 a.m. He went to his
flat by the lift. When he got off from the lift in front of flat No.
1601, he saw that the accused was standing there and the door
was shut. He asked the accused that what he was doing there. He
told him that the electricity was not there in the flat of Avik and
therefore Avik Sir called him.
28. He has further stated in his evidence that he felt it
normal as the electricity of his building used to go. Thereafter he
opened the door of his flat and he slept. He was staying with his
wife and parents in that flat.
29. He has further stated in his evidence that on that day
at about 5.30 a.m. he felt that his door bell was ringing but he did
not get up. After sometime he heard the rings for 5-7 times. His
wife and he got up and he saw from the peep hole that Avik was
standing and was crying.
30. He has further stated in his evidence that thereafter he
opened the door and he saw the blood in front of his house and
in the corridor. At that time Avik started crying and said, "she is
bleeding, she is bleeding". When he asked him who was bleeding
and he told him that Pallavi is murdered and Avik asked him to
call the Ambulance.
31. He has further stated in his evidence that he tried to
call the ambulance but he did not get through. By that time other
watchmen and neighbours gathered there. One of the neighbours
called the police and they took her away.
32. The evidence of this witness is not shattered during his
cross examination. The suggestion was given to him that he is
deposing falsely that he came at 1.30 a.m. and he saw accused in
front of the house of complainant, which was denied by him.
There is no reason for him to implicate this accused. At the
relevant time, he saw the accused in front of house of deceased.
The statement of this witness was recorded on the same day i.e.
on 9.8.2012. The evidence of this witness gets confidence, hence,
the witness is reliable.
33. PW-22 Mohammed Khalid Muneer Hussain Khan is
also the material witness. He is the Security Supervisor of Ivory
Tower CHS, where the deceased and complainant were staying.
On 8.8.2012, he went with accused at the house of deceased. It
was disclosed by accused in presence of this witness that in said
clothes, Pallavi Madam was looking very sexy and the accused
wanted to sleep with her for one night. PW-22 has deposed in his
evidence that he was working as a Security Supervisor since the
year 2004 at I-vary Towers, Bhakti Park, Wadala, Mumbai. He
worked there till December 2012. He knows Shabbir Khan. He is
also Security Supervisor in said society. He knows Sajid Mir. He
was a Day Supervisor. Shabbir Khan and he were on night duty.
His duty starts from 8.00 p.m. to 8.00 a.m.
34. He has further stated in his evidence that on
08/08/2012 he joined his duty at 8.00 p.m. At 10.45 p.m.
Dharmesh Gupta came to him. At that time Shabbir Khan was
with him. At that time Dharmesh Gupta told him that the lights
of Flat No. 1601 of Pallavi madam were not working and he asked
him for keys of meter room. Shabbir Khan gave him keys and he
went with them.
35. He has further stated in his evidence that at 11.45 p.m.
Dharmesh Gupta came there and he told that the lights of Pallavi
madam again were not working. Again he gave key to Dharmesh
Gupta. At about 12.30 a.m. Dharmesh Gupta gave him keys and
he told him that the lights were working and he left from there.
36. He has further stated in his evidence that at about 1.00
a.m. they were on round. At that time the accused Sajjad Pathan
came there and he told that the lights of Pallavi madam were not
working therefore he went with accused by taking torch. They
rang the bell but the bell was not ringing therefore accused called
the madam from his mobile. When she opened the door, she was
wearing half pant and half shirt. He asked her what had
happened. She told him that lights were not there.
37. He has further stated in his evidence that he entered in
her flat with accused and he saw the main switch was on. At that
time accused asked madam whether Avik Sir is in the house. She
told that he is not there and he would come in the morning.
38. He has further stated in his evidence that thereafter
accused and he came out. Thereafter he took the key of meter
room and both of them saw that the main switch was tripped and
the accused started it. Again the lights were on. Thereafter again
both of them went at Flat no. 1601 and rang the bell. Madam
opened the door and she told that the lights were on and she gave
thanks to both of them and thereafter both of them came back.
39. He has further stated in his evidence that after coming
from flat, the accused told him that in said clothes, Pallavi
Madam was looking very sexy and the accused wanted to sleep
with her for one night. At that time he became angry. The
accused told him that he was joking. Thereafter the accused went
towards Himalayan Heights 'A' Wing. He went towards Julian
Alpas.
40. He has further stated in his evidence that in the
morning at about 5.45 a.m. he was standing near the main gate.
At that time he came to know from the people from the society
that there was murder. He asked about the murder and came to
know that it was the murder of Pallavi Madam of Flat No. 1601.
called Shabbir Khan from his mobile and told him about the
murder of Pallavi Madam. Thereafter he along with Shabbir went
upstairs. He saw that there was blood near the doors of Flat Nos.
1601 and 1602. Her boyfriend was crying there. Police were also
present there. When they entered the flat with the police, he saw
the body was lying there and the blood and hair were lying in bed
room.
42. He has further stated in his evidence that he knows the
accused, as he was working as a Security Guard. He has
identified the accused in the Court.
43. After going through the evidence of this witness, the
defence tried to prove that witness PW-22 was not there. During
cross examination he has stated that immediately after death of
deceased, he went to his room and started his routine, which is
not the natural conduct. The witness went to his room, he took
breakfast and then he took rest and after lunch, he went to police
station. Nothing is un-natural. The witness was on night duty.
He was in need of rest and therefore, after taking rest, he went to
police station. The evidence of this witness gets confidence.
Presence of accused on the spot on the intervening night is
proved by these two witnesses.
44. PW-1, PW-10 and PW-20 is the another set of material
witnesses.
45. PW-1 Avik Sengupta is the complainant, who is the boy
friend of deceased Pallavi. They were staying together. He was
the first person, who saw his girlfriend in pool of blood at 5.30
a.m.
46. He has deposed in his evidence that he is B.S.L. L.L.B.
He passed L.L.B. in the year 2008. He is 'Senior Associate' with J.
Sagar Associates, Advocates and Solicitors since May 2008.
47. He has stated that he knows Pallavi Atanu Purkayastha
since the year 2007. She had also passed L.L.B. exam. from I.L.S.
Law College in the year 2009. She was a 'Legal Manager' in Excel
Entertainment Private Limited since February 2011. He knows
Pallavi since the year 2007. He was about to marry with her. It
was known to Pallavi's parents.
48. He has stated that since 01/11/2011 he was living at
1601, B Wing, Himalayan Heights, Bhakti Park, Wadala (East),
Mumbai. He was living on leave and license basis along with
Pallavi. He left that flat immediately after the incident. The flat
is on 16
th
floor at Himalayan Heights, 'B' Wing. It was situated in
Ivory Tower Society. There were two Wings for each building.
There were 18 floors to each Wing. There were four flats on each
floor.
49. He has stated that in Flat No.1602, Mr. Kunal Shah with
his family were residing. In Flat Nos. 1603/1604 Mr. and Mrs.
Pathak were residing. He was not remembering who was staying
in Flat No. 1605.
50. He has stated that his working hours generally were
9.30 a.m. to 10.30 p.m. However the nature of his work required
him to stay there beyond midnight for several occasions. The
working hours of Pallavi were 11.00 a.m. to 5.00 p.m.
51. He has further stated in his evidence that he was
known the accused Sajjad Pathan. He was a Watchman in their
building. On 08/08/2012 he left the home for office at around
9.30 a.m. Pallavi was just woken up and she went for bath. He
said bye to her and left the home.
52. He has further stated that on that day he was required
to stay in the office beyond midnight along with his colleagues
Siddharth Desai and Kanika Sachdeva. He was in the office
around 4.30 a.m. of 09/08/2012. He spoke with Pallavi twice or
thrice during the day. She also called him twice or thrice in the
night. She told him that the electricity of their flat was kept
coming and going.
53. He has further stated that he came back to his flat
between 5.00 a.m. to 5.30 a.m. on 09/08/2012. He came up by
the lift. His flat is opposite to lift. When the lift was opened, he
saw the blood was sprinkled in front of his flat and the flat of his
neighbour. He saw his door was half opened and the lights of the
flat were switched off.
54. He has stated that getting alarm from the blood stain,
he went in and pushed the door. The lights in the common
passage near the lift were switched on and in said light, he saw
the blood all over the floor of drawing room. He started looking
here and there and he saw Pallavi lying on the floor of his drawing
room. She was lying flat completely smeared with blood.
55. He has stated in his evidence that he immediately ran
towards her to revive her and he shook her egregiously and kept
calling out her. She had a very deep wound on her throat and it
was bleeding. She did not respond to all his calls and she was
completely motionless. He called his friend Vikram Sharma on
the mobile phone but he did not get through.
56. He has stated that he ran out of his flat and rang the
doors of Mr. Pathak and Mr.Shah but they did not respond. Then
he took the lift and went down to the lobby. He woke up the
guard on duty and told him that his girlfriend in the flat was
bleeding and asked him for help.
57. He has stated that he immediately ran and got two
more people along with him and they collectively went on 16th
floor by the lift. When they reached on 16th floor, Mrs. and Mr.
Pathak came out from their flat. He along with two guards went
into his flat and switched on the lights of his flat.
58. He has stated that at that time he saw Pallavi first time
in proper light. He saw deep wound on her throat, on her
forehead, head, on both her hands and on her chest. She was
wearing a grey sports Bra and night shorts having stripes.
59. He has further stated in his evidence that he asked Mr.
Pathak to call the police. He completely broke down at that time.
Mr.Pathak called the police. He kept requesting others to call
ambulance. Then he went outside and he was sitting outside his
flat. His friends and the police had arrived after sometime.
60. He has stated in his evidence that at about 7.00 a.m.
the ambulance arrived. They kept her on the stretcher and she
was taken to Sion hospital. Thereafter he accompanied the police
to Wadala T.T. Police station. When the police was inquiring with
him, somebody called him and told him that Pallavi was no more.
In Sion Hospital, she had been declared dead. He was crying.
The police tried to console him for sometime.
61. He has stated in his evidence that before 9.00 am. the
police recorded his complaint. He has identified the complaint at
Exh.15 and also identified the accused in the Court.
62. He has identified the clothes which were on the person
of Pallavi at the time of the incident which are at Article 1 to 5.
63. He has stated in his evidence that Pallavi and he had
last conversation on the mobile between 1.00 a.m. and 1.30 a.m.
and after that they exchanged the black berry messages.
64. He has stated in his evidence that at 10.30 p.m. on
08/08/12 Pallavi called him and asked him what he was doing in
the office and when he would be there. He told her that he was
busy with the assignment and would come back at wee hours of
the morning. After that, the phone got disconnected so he called
her up again. At that time she told him that she came to the flat
and there was no light in the flat.
65. He has stated in his evidence that he asked her
whether the lights were not only in their flat or also elsewhere.
Pallavi told that the lift passage lights were on and it seemed that
it was only in their flat, the lights were not switched on.
66. He has stated in his evidence that he told her to
immediately go down to see watchman and tell him to get the
electrician. Between two calls she told him that the lights were
kept coming and going.
67. He has stated that around about 1.30 a.m. on 09/08/12
she sent him a blackberry message saying that the light situation
was not being resolved and she was going to sleep. He replied her
message saying that go to sleep and he would come back in the
morning and handle the situation.
68. He has stated in his evidence that he was having black
berry messages. His mobile No. is 9004091919. It was in the name
of his employer J. Sagar Associates. The mobile number of Pallavi
was 9769446081. It was in the name of the father of friend Mr.
Vinit Bakshi.
69. He has stated that in July 2011 when he came back
from the office, Pallavi complained to him that one of the guards
in their building named Sajjad had tried to act smart with her. He
tried to approach her and she told that he was looking towards
her with bad intention ("gandi nigahose" and he tried to talk with
her forcibly. ("jabardasti bat karene ki koshish kar raha tha"). He
used to leach her for long time.
70. He has stated in his evidence that at that time he told
her that she being a pretty lady, such things would happen and
therefore she should neglect it.
71. He has further stated that after lodging his complaint,
Mr. Kanade asked him to accompany him to Sion Hospital. He
reached to Sion Hospital at 9.30 a.m. By 9.40 a.m. two lady
pancha were called. In front of them, he was asked to identify the
body of Pallavi. He had identified her body. He found the injuries
on her person and the panchanama was drawn.
72. He has stated in his evidence that between 11.15 a.m.
to 11.30 a.m. Mr. Kanade requested to take him on the spot. He
took Mr. Kanade to flat No. 1601. Two male pancha witnesses
were there and the spot panchanama was drawn. Cigarette buds,
a pair of slippers of Pallavi, the carpet, blue sweater, leather bag
and stands of hair were seized by the police by drawing the
panchanama.
73. PW-1 is the complainant, who has lodged the
complaint at about 9.30 a.m. on same day against unknown
person. It took time to revive himself from said shock and
therefore, he lodged complaint at 9.30 a.m. The complainant,
who cannot come out of the shock and after the death of his
girlfriend, he had a tragic end on 14.11.2013.
74. During cross examination of PW-1, it is brought on
record that improvement about the deceased was complaining
against the accused that the accused was lecherous and was
looking towards her with bad intention. The prosecution has
brought the conversation on record, which is in the form of
question and answer. The witness has answered that at the time
of giving complaint, he was under stress and therefore, the said
fact is mentioned in his supplementary statement. The evidence
of this witness was consistent during cross examination and
hence, it is trustworthy.
75. PW-10 Ahmed Ismail Shaikh is the Driver of neighbour
of deceased Pallavi. He has deposed in his evidence that he has
been working as Driver since last 7 years. In the year 2010, he was
on duty as a Driver with Mr. Amit Palta. He worked with him till
year 2012. Mr.Amit Palta was staying at Bhakti Park, Wadala. At
that time his mobile number was 9821771518.
76. He has further stated in his evidence that he knows the
accused. He has identified him in the Court. He came to know
the accused at Bhakti Park, Wadala. He was Watchman at Bhakti
Park, Wadala. He was having friendship with him, as he was
parking the car there. The mobile number of accused was
9768815312.
77. He has further stated that on 09/08/2012 at about
10.30 a.m. he was at his home. He saw 5-6 missed calls on his
mobile from mobile of accused. Therefore he called the accused
from his mobile. When he asked the accused, as to why he gave
him 5-6 missed calls, at that time accused told him that, "society
me ek item ne mujhe kam karne nahi diya is liye maine use maar
dala". When he asked the accused as to whom he had killed, at
that time he had started laughing and cut the phone call. At that
time he felt that the accused was joking and he had neglected
him, as he was having habit of giving filthy comments on girls.
78. He has further stated in his evidence that after 2-3
minutes, again he received call from accused and he told him
that he was in Wadala with his friend and he was in need of Rs.
10,000/- as he wanted to go to Jammu Kashmir at his native
place. He told the accused that he did not have money. At that
time the accused cut the phone call.
10/08/2012 at about 10.00 a.m. he read in the newspaper that in
Bhakti Park, murder of one Pallavi was committed and she was
staying at Himalayan Heights. After reading the newspaper, he
had recollected that the accused told him about commission of
murder and he suspected that the accused must have committed
said murder.
80. He has further stated that thereafter he immediately
went to Wadala police chowky and informed the police that he
wanted to say something about the murder at Bhakti Park.
Thereafter they gave him the address of Crime Branch and he
went to Crime Branch as per the address given by the police.
told the officer in Crime Branch that he wanted to give his
statement about the murder committed at Bhakti Park and he
told whatever known to him to the police officer Mr. Tawade and
Mr. Tawade had recorded his statement.
82. The defence tried to brought on record that PW-10 is a
brought up witness. The defence has asked the address and age
of witness to prove that he is in habit of giving false document
and his evidence is not reliable. About giving two addresses, the
witness has given explanation that he was staying with his sister
and therefore, at the time of taking driving license he has given
the address of his sister and he is staying at SRA building.
83. The defence tried to brought on record that witness
PW-10 is roaming in Mumbai and was receiving calls from his
mobile on 9.8.2012, which is denied by the witness. The evidence
of this witness is trustworthy. It cannot be discarded, only
because the defence has given suggestion that he deposed falsely
about his ill health and was not at home.
84. PW-20 Mohammed Sadik Mir is the Security
Supervisor of Ivory Tower. He has stated in his evidence that he
knows the accused Sajjad Pathan. He has identified him on V.C.
In the Court. He was working with him as a Security Guard.
85. He has further stated in his evidence that he is staying
at Bhakti Park, I-very Towers, Wadala as a Security Supervisor.
The accused Sajjad Pathan was working there as a security guard.
He was working in day shift in the month of August 2012. Two
supervisors Mohammed Shabbir Khan and Mohammed Khalid
were there for night duty. The timing of Day shift was from 8.00
a.m. to 8.00 p.m. and timing of night shift was from 8.00 p.m. to
8.00 a.m. The mobile No. 9619637825 was his mobile number
and at that time the accused Sajjad Patahan was having mobile
No. 9768815312.
86. He has further stated in his evidence that on 09/08/12
at about 6.45 a.m. he was sleeping in the room. Shabbir Khan
came to him and he informed him that the murder of Pallavi
Madam was committed in the Flat No. 1601. It was committed by
the accused Sajjad Pathan. He asked PW 19 that why he was
taking his name. At that time PW 19 told him that the accused
had informed about it to PW 19 on phone. He asked PW 19
whether he had informed it to the police. PW 19 told him that he
had informed about it to the police and he also told that he was
not in the society and ran away from there.
87. The information about disclosure of crime is
immediately given by PW-19 to this witness. It cannot be
discarded hearsay evidence, as it corroborates with evidence of
PW-19.
88. PW-9, PW-14, PW-15, PW-17, PW-23 and PW-36 are the
panch witnesses.
89. PW-9 Sadashiv Lingayya Shetty is the panch witness of
Seizure panchnama of clothes of deceased Pallavi. He has stated
in his evidence that on 09/08/2012 PSI of Wadala T. T. police
station called him when he went to Wadala for his personal work.
The police asked him to act as a panch witness for the seizure
panchanama of the clothes. He gave his consent for it.
went to detection room of Wadala T.T. Police station. PSI Kanade
and other constable Mr. Kshirsagar were present there and he
introduced him to another panch witness Devi Fernandes and
other person who was Avik Sengupta.
91. He has further stated in his evidence that Constable
Mr. Kshirsagar produced two clothes in one envelope. The gray
colour ladies bra and one panty were there. It was written on said
brassier West Sport. The panty was of white colour and having
blue strips. The lace of said nicker was broken and it was torn
and the clothes were stained with the blood. When the clothes
were shown to Avik Sengupta, he identified said clothes as of
Pallavi Purkayastha. The police seized said clothes and sealed it
and labeled it and thereafter he signed said label and the
panchnama.
92. He has further stated in his evidence that he has
identified the panchanama, which is at Exhibit-55. It bears his
signature at serial No. 1 and the signatures of other panch
witness. He identified the clothes at Article 1 & 2 i.e. the sports
bra and one nicker. This panch witness is not challenged by the
defence.
93. PW-14 Mosas Rao Parly is the panch Witness of Spot
Panchanama. He has deposed in his evidence that on 09/08/2012
he went to Mhada Colony near Bhakti Park to meet his friend at
about 9.00 a.m. 9.30 a.m. and he was going back to his home at
about 11.00 a.m. to 11.30 a.m. He had passed Himalayan Heights
in Bhakti Park. He saw there were people gathered under the
Himalayan Heights building and police were there
94. He has further stated in his evidence that he asked one
person what happened there and he told him that somebody had
committed the murder. The police called him and he asked him
to act as a panch witness and he had given his consent to it.
police took him at 16th floor. Another panch witness was one Mr.
Yadav. Police took him to Room No. 1601 and 1602. After
coming from lift, he saw that there was blood lying on the
passage. Police told him that one person who was standing there
Avik was the complainant. Avik showed the place of the incident.
The spot of the incident was in flat No. 1601.
96. He has further stated in his evidence that they entered
in the flat No. 1601. There were blood stains on the carpet and on
the floor. Six articles were seized from said flat. The cigarette
buds, carpet, jacket, slippers, black colour bag and hair stained
with blood were seized from the spot. All the articles were
stained with blood. The police seized it, packed it, labelled and
sealed those articles.
97. He has further stated in his evidence that Avik and
officer took them to the bedroom. He saw pillows and bedsheet.
The bedsheet was not in proper condition. The pillows were lying
on the floor. The bed cover was scattered and there were blood
stains on said bed. Police prepared the panchnama on the spot
and obtained his signature on it. The panchnama is at
Exhibit-64. He has identified the Article 3 (colly.) slippers, Article
4 carpet, Article 5 blue sweater.
98. The suggestion about working for police is denied by
the witness. The presence of witness on spot is admitted by
accused by suggesting that police took Knife from kitchen. There
is no reason to give false evidence. The spot panchanama is
prove through this witness.
99. PW-15 Algarson Krishnan Devendra, panch Witness of
Recovery Panchanama. He has deposed in his evidence that he is
doing the job in BMC. He is a contract labourer. Sunday is his
holiday. On 12/08/2012 it was Sunday. On that day he was going
to Antop Hill at 9.30 a.m. to meet his friend.
100. He has further stated in his evidence that he was
passing through Crime Branch office, Antop Hill. The police
person called him when he was passing through the crime
branch. Police told him that one accused was present in the
crime branch and he wanted to say something and the police
asked him to act as a panch. He gave his consent for acting as a
panch.
went to crime branch office. Police officer Mr. Tawade was there.
He asked his name and address and the police asked him
whether any case is pending against him and whether he acted as
panch witness in any other case. He answered in negative.
102. He has further stated in his evidence that another
panch witness was present there named Mr. Gupta and the
accused were introduced to him. The name of accused was
Sajjad. He has identified the accused in the Court. Thereafter he
asked the acused his name. He told his name as Sajjad.
police officer told the accused to say whatever he wanted to say.
The accused was talking in Hindi. He told that he was ready to
produce the clothes which were on his person at the time of
crime, chappal and key which was stolen by him and these
articles were concealed and the accused was ready to produce the
articles. Police recorded it. Police obtained the signature of
accused and obtained the signatures of two panch witnesses and
police also signed on it. The panchanama is at Exhibit-68.
104. He has further stated in his evidence that Police asked
the accused to take the physical search of panch witnesses. The
accused refused it and police called the vehicle. The accused, PW
15 and another panch witness and the police officer and other
police staff entered in the vehicle. Thereafter the police asked the
accused when and where to go. He asked to take the vehicle to
Bhakti Park. As per his direction, the vehicle was taken to Bhakti
Park.
105. He has further stated in his evidence that after coming
to second gate, the accused asked to take the vehicle inside and
to Himalayan Height building and he asked to stop the vehicle
near Julian Aalas 'B' Wing. Accordingly, the vehicle was stopped.
Thereafter they got down from the vehicle. Thereafter the
accused took them near the room which was between two lifts
near Julian Aalas 'B' Wing. When he opened the door, he found
that it was cabin. In said cabin, there was one tin box which was
locked, the accused had broken said lock. He took out one black
colour pant, one black half T-shirt, black colour nylon belt.
Thereafter he took out the keys from right side pocket of pant.
The pant was having blood stains. It was dried blood. The blood
stains were near the pocket and at the bottom of the pant.
106. He has further stated in his evidence that Police
wrapped the said clothes in brown paper and sealed it. There
were two keys. The police seized it. The police put the brown
paper and wrapped said keys in one polythene cover. The black
T-shirt was having 3 buttons and at the left side AHE Security was
written and at the back side the words "SECURITY" were written
in bold letters. The police wrapped it in brown paper, sealed it
and obtained his signature on it. The belt was also sealed in
brown paper and labeled it and obtained his signature. Police
took out the chappals from said box. The footwear was stained
with blood. Red mark was written on said chappal. Police
wrapped said chappals, sealed it and labeled it and obtained his
signature and signature of another panch. Police prepared the
panchanama and obtained their signatures on it. Another panch,
police officer and he had signed on it. The copy of panchanama
was given to accused and his signature was obtained. The
panchnama is at Exhibit-68-A.
107. He has further stated in his evidence that he has
identified one black pant and one black T-shirt, one belt at Article
11(Colly.), Chappals at Article 12, Four labels at Article 13(Colly.).
Article 10(Colly.) two keys and the label at Article 10-A.
108. During cross examination, it is tried to brought on
record that PW-15 is the regular panch witness. On recovery of
Key, the question was asked, whether the police verified it in his
presence ? It was not verified, as police has conducted separate
panchanama for verification of Keys. The evidence of this witness
was consistent and recovery panchanama is proved through this
witness.
109. PW-17 Mr. Kartik Shivaji Devendra, Panch witness of
verification of keys recovered at the instance of accused. He has
deposed in his evidence that on 18/08/2012 he went to MHADA
Colony, Wadala to meet his friend at about 11.00 am. to 11.30 a.m.
He met with him. Thereafter he was coming back to his house by
walk. Thereafter he proceeded from his friend's house at about
1.00 p.m. He reached near Himalayan Building, there he met
with one constable. The constable asked him to act as a panch
witness in the panchnama of key. He gave his consent for it.
110. He has further stated in his evidence that he went on
16
th
Floor of Himalayan Heights, 'B' Wing. There he met with
police officer Mr. Kamble. One person Gupta was there. The
police introduced him with another panch to Mr. Gupta. The
police produced one sealed packet and they took one key from
sealed packet. There were two keys in said packets. The flat No.
1601 was opened by one of the said keys and again the flat was
locked by same key.
111. He has further stated in his evidence that the police
checked another key. They opened the door with another key.
Thereafter they all entered in the flat. Mr. Gupta and the police
persons were with him. Thereafter again they came out. Again
police locked said door by said key. Thereafter police put said
keys in one packet and covered it and sealed it. The police
prepared the panchnama and the copy of panchnama was given
to Mr. Gupta.
112. He has further stated in his evidence that he identified
the panchnama of keys. He is educated upto 8
th
Standard. It is at
Exhibit-72. He has identified the keys which were seized in his
presence. It is at Article 10(Colly.)
113. The questions were asked to the witness about number
of keys and make of keys. He is the panch witness for verifying
the keys, which were recovered by police and the door was
opened by these keys and closed by it. To verify his presence, the
question was asked about the colour of room and the door. He
has stated that it was dark and was unable to state the colours,
which cannot discard the evidence of this witness. It is proved
that the keys, which were recovered by accused, the door of Flat
No.1601 was opened with said keys. The evidence of this witness
is trustworthy.
114. PW-23 Subramaniam Muttu Devendra is the panch
Witness of Seizure Panchanama of Knife. He has deposed in his
evidence that on 10/08/2012 at about 1.10 p.m. he was going to
his in laws house for taking his mobile. He was passing through
Antop Hill Police Station. At that time one constable met him
near Antop Hill police station and he told him that one accused
in murder case wanted to say something and asked him whether
he was ready to act as panch witness. He gave consent.
115. He has further stated in his evidence that thereafter the
police took him in the police station. Thereafter he introduced
him with senior police officer Mr. Tawade. Mr. Tawade asked him
whether he had acted as a pancha witness in criminal case and
was having any criminal case. He answered in negative. Another
panch witness Babu Devendra was there. P.I. introduced him to
another panch. The accused Sajjad Pathan was present there.
116. He has further stated in his evidence that the Officer
told him that the accused wanted to say something. Then he
asked the accused what he wanted to say. He told that he was
ready to produce the knife which he had concealed in one place.
Police recorded it in writing and obtained his signature, signature
of another pancha witness and signature of accused. The
memorandum statement is at Exhibit-85.
senior officer arranged the vehicle. Five to six police persons
including two panch witnesses and the accused were in said
vehicle. He showed the way and asked to take the vehicle to I-max
Adlab Theater, Bhakti Park and there the accused asked to stop
the vehicle near Himalayan Heights 'B' Wing. Thereafter all had
got down from the vehicle. Thereafter all had entered the lobby.
At the left side of the lobby, there is wooden staircase. He took
them on the third floor by staircase. On third floor, there was
shoe rack. From said shoe rack, the accused took the knife from
the drawer which was stained with blood. The handle of knife
was of black colour and was having steel blade. It was sharp by
one side. Inspector Tawade wrapped it in one plastic cover and
lebelled it and obtained his signature and signature of another
panch witness and prepared the panchanama. The panchnama
is at Exhibit-85-A. He has identified the knife which is at Article
14.
118. The suggestion of habitual panch witness is given to
PW-23, which was denied by him. During cross examination, the
defence tried to prove that PW-23 is the habitual witness, but it
was not proved. The recovery of Knife is proved through this
witness. The evidence of this witness gets confidence.
119. PW-36 Kannan Durai Devendra, Panch witness of
Panchanama of Physical Search of accused. He has deposed in
his evidence that on 10/08/2012 he was passing through Sion
Koliwada at about 12.30 p.m. At that time police constable from
Unit IV of Crime Branch called him. Accordingly he went to their
office. Police officer Mr.Tawade was present there and he asked
him whether any criminal case was pending against him and
whether he had acted as pancha witness in any other case. He
asked him to act as panch witness of the panchanama of physical
search of accused. Another panch witness was Vyankatesh. He
identified the accused in the Court, as he is the same, who was
present in Unit IV of Crime Branch at the time of conducting his
physical Search panchanama.
120. He has further stated in his evidence that the accused
was having injuries on his little finger, palm, elbow. He was
having five injuries on left arm. The police took his physical
search in his presence. Police found one wallet from back pocket
of pant of accused. One security card, ATM Card, PAN card and
passbook of Bank of India and residence proof of Jammu and
Kashmir. His photograph was affixed on said Identity card.
121. He has further stated in his evidence that One mobile
was found from the right side of pocket of accused. It was having
red colour border. Police opened it and removed SIM card from
said mobile. The police recorded the numbers in the
panchnama. Police packed it in one brown paper and affixed
label on it. He signed said label. Police typed said panchanama.
He signed said panchanama and another pancha has also signed
on it. Copy of panchnama was given to the accused and he signed
it. The panchanama is at Exhibit-112.
122. He has identified Black colour mobile of Nokia
Companyin the Court. It is at Article 22. ATM card of Bank of
India, PAN card, I-card of Jammu Kashmir bearing No. B 0072706
also identified by him. Those are at Article 23(Colly.) and One
Wallet, I-chard of A. H. Enterprise and passbook of Bank of India
are at Article 24(Colly.).
123. The defence asked question to this witness about
injuries to the accused. Nothing is there in cross examination of
this witness to discard the evidence. The evidence of PW-36
corroborates with the evidence of PW-26 Dr. Amarsingh
Anandrao Rathod, who had examined the accused.
124. The prosecution has examined total five Nodal Officers
i.e. PW-3, Mr. Yogesh Shrikrishna Rajapurkar, Nodal Officer of
Airtel Company, PW-5, Vikas Narayan Phulkar, Assistant Nodal
Officer of Vodafone India Limited, PW-6, Sunil Subhash Chandra
Tiwari, Nodal Officer of Aircel Limited, PW-7, Rakeshchandra
Ramdujh Prajapati, Nodal Officer of Loop Mobile Company and
PW-8 Shekhar Vinayak Palande, Nodal Officer of Tata Tele
Services Maharashtra Limited to prove the Call Details Reports,
which were produced on record.
125. PW-2, PW-12 and PW-13 are the owners of SIM Cards,
which were recovered during the investigation. PW-2 Mr.
Darshan Singh Dilip Singh Bamra is the Administrative Officer of
J. Sagar Associates Law Firm. It is proved by this officer that the
mobile of complainant was given to him by company.
126. PW-12 Mr. Vinit Vedprakash Bakshi is the father of
friend of deceased Pallavi. He has given his SIM card to deceased
Pallavi.
127. PW-13 Pramila Ashrafilal Gupta is the maternal aunt of
Dharmesh Gupta (PW-32). He was having SIM card of PW-13 in
his mobile.
128. PW-16 Satishkumar Tangwel Devendre is the
Photographer, who has taken the photographs of dead body at
Sion Hospital, which are at Exhibit-70 (colly.)
129. PW-21 Rupali Suresh Vaidya is the colleague of
deceased Pallavi. She was working with deceased Pallavi. She
was her friend. Rupali was known that deceased Pallavi was
staying with her boyfriend and they were about to get marry.
130. PW-24 (HC 4887) Mr. Prakash Gulabrao Shirke is he
police witness, who had published Prohibitory Order of Bombay
Police Act.
131. PW-25 (HC-50639) Mr. Sakharam Dattu Redekar and
PW-27 ASI Narayan Satva Suryawanshi are the Police Witnesses,
who had sent the articles to Kalina Forensic Lab for C.A.
132. PW-28 Ramsevak Surajmali Gaue is the witness, from
whom the accused has purchased Knife in Ramzan. He was
known to the accused. He has identified the Knife, which was
recovered from the accused.
133. PW-29 PI Mr. Vinayak Bajirao Vetal is the Police
witness, who has brought theDNA Kit from Kalina Forensic Lab.
134. PW-33 is Dr. Kiran Sambhaji Kalyankar, who has
collected blood samples of accused for DNA test.
135. PW-37 API Mr. Dhanaji Laxman Jagdale is the police
witness, who has forwarded muddemal for C.A., which was
collected from Sion Hospital and from the spot of incident
alongwith forwarding letter.
136. PW-31 Mangesh Madhukar Pathak is the neighbour of
deceased Pallavi, PW-32 Mr. Dharmesh Mewalal Gupta is the
Wireman working in Ivory Tower and PW-35 Siddharth Deepak
Desai is the colleague of complainant. These are all the
independent witnesses.
137. PW-31 has deposed in his evidence that he is staying
at 1604, 'B' Wing Himalayan Heights, Bhakti Park, Wadala (E),
Mumbai 400 037 since last 3 years. Flat No. 1601 was adjacent to
his flat. In August 2012, Avik Senguputa and Pallavi were staying
in said flat.
09/08/2012 at about 5.45 a.m. his doorbell was rang and he saw
Avik Sengupta was standing in front of his door and he was
shouting, help, help. When he asked him, Avik told him that
somebody had killed Pallavi. Thereafter he went inside and from
his landline, he had called on 100 number and called the police.
Thereafter the police came there. Thereafter the police took
Pallavi. When he saw Pallavi, she was lying in the pool of blood.
There is no reason to disbelieve this witness.
139. PW-32 is the person, who saw the deceased Pallavi
alive at night. He has deposed in his evidence that he is working
as Wireman and maintenance of electric work at Ivory Towers.
He is educated upto Xth Standard. His mobile Number is
9967889972. He knows the accused. He has identified the
accused in the Court. The accused was working as security guard
in Ivory Tower. He knows Shabbir. He was working as security
supervisor in Ivory Tower. He was knowing Pallavi Madam. She
was staying at Himalayan Height, B Wing, Flat No. 1601.
08/08/2012 at about 10.30 p.m. he received the phone call from
Flat No. 1601, 'B' Wing, Himalayan Height from Pallavi. She told
him that the lights were not there in her flat and she asked him to
come quickly. He came with his friend.
141. He has further stated in his evidence that at the gate,
Shabbir was sitting. He took the key of electric meter room from
Shabbir and he went to meter room. The switch of meter of flat
No. 1601 was off. He had switched on it. Thereafter he closed the
meter room and went upstairs.
142. He has further stated in his evidence that he went to
Flat No. 1601 and knocked the door. Pallavi Madam came out.
She was wearing half pant and grey colour Top. Thereafter Pallavi
Madam switched on the light from the meter inside the flat and
the lights were on.
143. He has further stated in his evidence that at about
11.30 p.m. to 11.45 p.m. again he had received the phone from
Pallavi Madam and she told that again the lights were switched
off. Again he went to Himalayan Height. The security supervisor
Khalid was there. He gave the key of meter room. He went with
Khalid. Again the meter was switched off. Again he had switched
on it and locked the room. At that time he was going upstairs by
the staircase, the accused held the lift on 13
th
floor. He asked the
accused, from where he was coming. He went on 16
th
floor by lift
from 13
th
floor with the accused and his friend Ramesh. On 16
th
floor he came out from the lift and the accused went down by the
lift.
rang the bell. Madam opened the door and she told that the lights
were on just now. He took the electric connection of kitchen, A.C.
and two geysers. At that time madam said thank you and they
went down. He gave the keys to Khalid and went to the house.
145. He has further stated in his evidence that at about
12.30 a.m. again he received the phone call from Pallavi and she
told that the lights had gone. At that time he told her that he
could not come now and he would come in the morning.
received phone call of accused and he told him that the lights
were not there in flat No. 1601. He told the accused that he had
received the phone call from Pallavi Madam and he had told her
that he would not come now and he would come in the morning.
Again after sometime, he received the phone call from Pallavi
madam and she requested him to come there. He told her that he
could not understand. It is not because of overload problem. He
would see in the morning.
147. There is no reason for him to depose falsely. He has
stated about the status of electricity at night in the house of
deceased Pallavi and he attended her calls. During cross
examination, the defence asked many technical questions about
electric work. The evidence of this witness proves that till late
night he has attended the calls of Pallavi. He had went to her
house for twice to solve the problem. The accused has stated that
thee is contradiction in evidence of PW-32 and PW-22 about the
timing and therefore his presence at the house of deceased is
doubtful. All the witnesses concerned to this issue deposed that
he came there for twice. There is possibility of mentioning about
time, which cannot be treated as contradiction, as it proves that
he came there for twice. The security guards and supervisors, to
whom the prosecution has examined are the relevant witnesses
with accused, when he passed comments on deceased. Material
witnesses are examined by the prosecution, who disclosed the
presence of accused and to whom he has confessed. Therefore
non examination of other security guards cannot draw the
adverse inference against the prosecution.
148. PW-35 is the person, who was with Avik Sengupta on
the date of incident. He has stated in his evidence that Avik
Sengupta was working in his company. He was his senior. Avik
Sengupta was staying at Bhakti Park, Wadala. Their office timings
is from 9.00 a.m. to 9.00 p.m. and beyond that. Kanika Sachdev is
also a Lawyer. She is his colleague. She was serving in their firm.
In August 2012, she was working in their firm.
08/08/2012 he reached to his office at about 9.00 a.m. On that
day he worked till 4.30 a.m. on 09/08/12. Avik Sengupta and
Kanika Sachdev were working with him on that day. They were
with him on that day till 4.30 a.m. They also came to the office at
9.00 a.m. on 08/08/2012.
09/08/2012 at about 4.30 a.m. he himself, Avik Sengupta and
Kanika Sachdev left the office at 4.30 a.m. in car of Avik Sengupta.
He dropped Kanika at Colaba and he dropped him at Dadar T.T.
at about 5.15 a. m. or 5.20 a.m. and Avik went to his house at
Wadala.
151. He has further stated in his evidence that Now Avik is
no more. His health was deteriorated after this incident. He died
on 14/11/13 in the hospital.
152. The suggestion of diversion of call details was asked to
this witness. His call location was not brought on record.
Evidence of this witness is trustworthy. He was with the
complainant till morning at 4.30 a.m. is proved through this
witness.
153. PW-38 Shrikant Hanumant Lade is the Assistant
Director of Kalina Forensic Lab, Kalina, Mumbai. He has deposed
in his evidence that he is working as 'Assistant Director' in Kalina
FSL Mumbai. On 13/08/2012 he received three hair samples in
sealed condition from Sion Hospital. He received the sample of
nail clippings along with this samples. The hair sample was of
Pallavi Purkayastha and nail clippings were of the accused. On
the day of evidence, he brought the office copies, which were
received by him from Sion Hospital. He produced two
forwarding letters dated 09/08/12 and 10/08/12 in the Court. The
xerox copies are at Article 25(colly.).
154. He has further stated in his evidence that he received
the bunch of hair, which was found on the spot and the brassier
of the deceased in sealed condition along with the forwarding
letter. The forwarding letter is at Exh.114. On the same day, he
received one knife, full pant and shirt of accused and pair of
footwear of accused in sealed condition along with the
forwarding letter, which is at Article 17. After receiving it, he
opened the seal of the samples.
14/08/2012 he received controlled blood sample of accused in
sealed condition along with forwarding letter and original
identification form. The forwarding letter is at Exh.98. The
original identification form which is marked as Article 1 as the
original is filed on record. It is at Exh.118. After receiving all the
samples, he opened the seal of the samples.
extracted the D.N. A. of hair found on the scene of crime, blood
detected on bra of Pallavi, blood detected on knife, full pant, half
sleeves T-shirt, blood stained hair found in right hand of Pallavi
Purkayastha, hair from left hand of deceased, hair from chest of
deceased and blood sample of accused. These DNA were
amplified with the use of 15 STR (Short Tandum Ripics) 15 LOCI
and gender specific AMELOGENI Locus using PCR Polymerase
Chain Reaction.
157. He has further stated in his evidence that he got DNA
profiles of all abovesaid samples. He analyzed these DNA
profiles. His interpretation is the DNA profile of hair found in
scene of crime, blood detected on full pant of accused, blood
stained hair found in right hand of deceased Pallavi and DNA
profile of accused is identical and from one and same source of
male origin. DNA found on the hair at the scene of crime and the
DNA found on the hair in the right hand of the deceased was of
accused.
158. He has further stated in his evidence that DNA profile
of blood detected on bra of deceased, knife, full pant of accused,
half T shirt of accused and blood stained hair found in right hand,
hair from left hand, hair from chest of deceased is identical and
from one and same source of female origin. DNA found on full
pant of accused and half T shirt were of deceased. DNA found on
knife and DNA found on hair on the right hand of the deceased
and hair found on left hand of deceased are of deceased. All
these DNA tests are conclusive tests. Accordingly he issued the
certificates. All the certificates bear his signature. Seven DNA
reports are respectively are at Exhibit Nos. 119 to 125.
159. The prosecution tried to brought on record that DNA
reports were tallied manually and therefore, the records are
manipulated. The witness has explained, how the reports are
proper.
160. It is suggestion of accused that the original reports
retrieved from Electroferogram are not filed on record. Therefore,
manually tallied reports are secondary evidence and is not
admissible. It is brought on record that there is no facility of
comparative study of DNA profile in the machine. Report is
prepared after manual analysis test. There is no question of
giving false evidence, as he is the expert witness.
161. PW-26 Dr. Amarsingh Anandrao Rathod has examined
the accused. He has deposed that on examination of accused, he
found following injuries :-
Injury No.1 - Incised wound present over base of left
index finger with bleeding present. Size varing 1.2 cm. X
0.5 cm. dorsal aspect tenderness present.
Injury No. 2 - Abrasion middle of left little finger dorsal
aspect 0.5 cm. X 0.5 cm.
Injury No.3 Linear abrasion present over left forearm
laterally dorsal aspect 1 cm. 13 cm. from wrist joint
scab formation red in colour. Tenderness present.
Injury No. 4 - Abrasion (Elliptical shape.) 1.5 cm. from
injury No. 3. Red in colour with scab formation .
Tenderness present.
Injury No. 5 - Graze abrasion left arm back 3 cm.
from elbow joint size varying 4 cm X 1 cm. red in
colour . Tenderness present.
Opinion - Cause of injuries :-
Injury No. 1 is due to sharp object.
Injury nos. 2 to 4 is due to sharp object (Nail).
Injury No. 5 is due to hard and rough surface.
Age of injuries within 48 hours.
Accordingly he issued the certificate. The certificate
bears his signature. It is in his handwriting. The
contents in it are correct. It is marked at Exh.91.
162. The defence has asked the Doctor that the injuries
were defence injuries, which is admitted by witness. The history
was given by police is denied by this witness. There is no reason
to disbelieve this witness.
163. PW-34 and PW-39 are the I.O. The defence brought
some lacunas in investigation through cross examination.
164. After going through the evidence, I would like to
mention the arguments averred by both the sides.
165. Learned SPP Shri Nikam has argued that the case is
based on circumstantial evidence. Evidence of nature of
circumstances is as good as eye witness. Circumstances are
contemporary to the witness. The circumstances cannot change
the facts in past. It is a law of president, where fact of the past,
from where the Court can draw irresistible evidence. It must be
incompatible with innocence of accused and chain of
circumstance must be completed.
166. The prosecution has to prove in this case -
1. Homicidal death
2. Motive for killing
3. Conduct of accused
4. Extra Judicial confession
5. Recovery of blood stained Knife
6. Recovery of keys and blood stained clothes at the
instance of accused.
167. Five witnesses proved the homicidal death of
deceased. PW-1, PW-9, PW-11, PW-16 and PW-18. From Inquest
Panchanama, it proves that trecia was first cut that she could not
shout. PW-31 proves that there was blood trail from bed room to
house of neighbour. Pw-18 has deposed that rigour mortis were
well marked on 9
th
August at 5.00 p.m. Means Pallavi must have
been died between 1.30 a.m. To 3.30 a.m. There was last call to
complainant P.W.1 at 1.30 a.m. There is objection that P.P. has
asked question to Dr. Dere Pw-18. It is argued that P.P. is at liberty
to ask some questions to witnesses for more clarification.
Therefore, there is no question of improvement in Postmortem
Report. It is question of opinion or knowledge, which does not
make any difference. Homicidal death is proved by prosecution.
168. Important factor in circumstantial evidence is motive.
There is no motiveless crime. Previous and subsequent conduct
of accused gives substantial proof for commission of crime.
169. It is the case of prosecution that accused have evil eye
on deceased. She told it to complainant before a month but he
overlooked it by saying that it happens with pretty girls. Seizure
of clothes of Pallavi at Exhibit-55 proves that pant of deceased
was torn and lace was broken. Inquest panchanama at Exhibit-59
and evidence of PW-9 are unchallenged, hence, are admitted by
accused and torn pant and broken string of pant are proved
through this witness. In July 2012, Pallavi made a compliant.
Perception was in her mind is a strong footing. There is no cross
on this point. Accused has passed comments in presence of
PW-22. She called accused for repairing of electricity. She herself
called a mass anger of death is a pathetic part. When PW-22 was
with him, accused asked deceased, whether Avik Sir is present in
the house and she told that he is not there. The preparation for
committing offence starts from watching the deceased in scanty
clothes. The accused was sexually excited. Accused has
confirmed by calling PW-32, whether he is coming there. It proves
that the accused was preparing for crime.
170. There is extra judicial confession with PW-10 that ek
item ne mujhe kam karne nahi diya, is liye maine use mar dala.
The words used by him planned to ravish Pallavi, but could not
succeed and assaulted her.
171. Evidence of PW-11 and inquest panchanama at
Exhibit-59 is consistent with the evidence Dr. Dere. C.A Report at
Exhibit-132 stains of blood group O. The clothes were identified
by PW-1. There is no satisfactory explanation, how the clothes
were torn in statement of 313. This is missing link in chain of
accused. Clothes must have been torn during attack. Motive to
outrage the modesty is proved.
172. Another important factor is extra judicial confession.
The prosecution has examined PW-10, PW-19, PW-20 and PW-22
to prove extra judicial confession.
173. Section 20 of Indian Evidence Act defines admission.
Admission of a fact, which does not constitute any offence is
admission, but which discloses offence is confession. According
to Section 24 of Indian Evidence Act, it is irrelevant if the making
of confession appears to the Court, have been caused by any
inducement threat or promise having reference to the charge
against the accused person. There are certain tests for proving
extra judicial confession.
1. Accused have any reason for confession ?
2. Whether all the four witnesses are said to be
confidence of accused ?
3. Whether statement made by accused contributes any
offence ?
4. Whether statement is voluntary ?
5. Whether disclosure is true ?
6. Whether the witnesses are having any enmity against
accused ?
7. Conduct of accused.
174. Extra judicial confession is a weak piece of evidence. It
requires corroboration.
175. PW-19, PW-20 and PW-22 are fellow colleagues from
same native place.
176. PW-10 is a driver with Mr. Palta and is having mobile
no. 9821771518 is not challenged. The accused informed him
about murder. Evidence of this witness corroborates with
Exhibit-47 call details. Oral evidence corroborates with CDR and
town location at Mankhurd. He has stated that accused is in
habit of cracking such type of jocks and has not taken any hid.
Friendly relations proves as he asked money for going to native
place. Exhibit-42 CDR corroborates with Exhibit-47.
177. PW-10 went to police station, when he read about
murder in news paper is a natural conduct. It would be the
defence of accused that he is a got up witness, as he was not
knowing owners business and car number. There is no suggestion
by defence counsel that he was not working with Mr. Palta and
Mr. Palta was not staying there in said building. Accused has
admitted his friendship in his statement in 313 at question no.30
and the witness has identified the accused.
178. Exhibit-47 shows location outside the house. But at
the relevant time, tower location was Mankhurd. Exhibit-46
proves his residential address at Mankhurd. He is not telling lie
as at the time of taking driving license, he was staying with his
sister. Only because he was not remembering the name of news
paper after one year, his evidence cannot be discarded.
179. PW-19, PW-20 and PW-22 are Security officers. They
were fellow colleagues not challenged in cross examination. The
evidence of these three witnesses is consistent and corroborates
with each other. No enmity is brought on record. There is no
delay in recording statements of these witnesses.
180. It is undisputed fact that accused was staying in same
society and was knowing topography as residing there. The
accused acquaintance with witnesses and call details remain
unchallenged. The accused called the witness and demanded
money.
181. PW-19 immediately informed to police. Immediate
subsequent conduct of witness is relevant to Section 8 of Indian
Evidence Act. During cross examination of PW-22, claim of
PW-19 is confession. Natural conduct is brought on record.
Immediate disclosure confirms about his call to PW-19. Call at
7.00 a.m. On 9.8.2012 from accused confirms their friendship and
switching of mobile when he asked about whereabout of
accused. He has switched of the mobile is a natural conduct.
There is immediate disclosure of PW-19 about the murder of
Pallavi with PW-22. Evidence of Pw-20 corroborates with
evidence of PW-19. The accused was aware about Pallavi's
mobile.
182. Evidence of PW-22 proves that accused was knowing
Pallavi's mobile, which corroborates with CDR Exhibit-42 and
Exhibit-37, CDR of Pallavi.
183. The accused was having evil eye on Pallavi. The
mischievous query about Avik and his comment on Pallavi. The
background of ill motive proves that he must have started further
plan after watching Pallavi in scanty clothes.
184. There is no enmity between accused and PW-22.
Admission sought during cross examination about cabin and key
of cabin strengthen the evidence of PW-15. Evidence of PW-19,
PW-20, PW-22 consistent with each other.
185. Accused has ascertained that PW-32, the electrician
will not come back and it is admitted by accused. Evidence of
PW-32 corroborates with PW-19 and PW-22. He has stated that
he received call about lights not working, corroborates with
Exhibit-23 and Exhibit-37 CDR reports.
186. There is no suggestion about tented extra judicial
confession. Recovery of Knife is a clinching evidence
acquaintance with PW-28 is not challenged in cross examination.
Article-14 is recovered at the instance of accused. Evidence of
panch witness corroborates with PW-39.
187. PW-38 expert witness has deposed that DNA tallies on
DNA profile of Pallavi. It is admitted by accused in statement of
313 in question no.183. There is no suggestion about knife was
lying near body, which is mentioned in the written statement of
accused. There is suggestion to PW-34 that Knife was seized from
Kitchen. There is no explanation of PW-22, which cannot be the
reason to discard his evidence.
188. There is recovery of Article-10 keys and clothes of
accused on 12.8.2012. During cross examination, there is
suggestion that the place was under his domain and secretary of
society was not called. It is the recovery panchanama under
Section 37 of Indian Evidence Act. It was not house search.
PW-22 in his cross has confirm that he used to stay in said room
and keys were with him. Only PW-15 is the panch witness of
recovery panchanama. Evidence of this witness corroborates
with PW-38.
189. Another witness is PW-17. He was not in a flat for
longer time. Answer to question of blood stains is given as false,
contradictory to his own written statement. He has stated that
his clothes were stained with blood, as he lifted deceased. There
is no suggestion about lifting of dead body.
190. Evidence of PW-4 is clinching circumstance. He saw
accused in front of the flat of deceased at 1.30 a.m.
191. The accused admitted injuries on his person, while
answering question nos. 136, 137 and denied the injuries, while
answering question no. 174. In question nos. 157 and 158, the
circumstance is very strong.
192. The defence has stated that Exhibit-15 is not an FIR as
it is manipulated and anti time. Copy of FIR is sent on 11.8.2012
to the Magistrate.
193. FIR is a starting point of investigation. As per Section
154, five important things are there.
1) Receiving information pertaining to cognizable
offence
2) If it is oral it must be in writing
3) It must be signed by informant
4) Sent to the Magistrate forthwith.
5) To take note of it in Station Diary
194. The cryptic or vague information cannot be termed as
FIR. Question was asked during cross examination about
Exhibit-34. The name of accused disclosed by PW-19 and
cognizable offence was disclosed. The information was cryptic.
To verify the information, senior suggested to inquire about the
information.
195. Entries in log book were cryptic information. DW-1
and DW-2 were examined and Exhibit-170, 172 is hearsay
information and too cryptic and too vague to register the FIR.
The entries were cryptic with number of mistakes. False
information is mentioned, though received at earlier time than
Exhibit-15. Therefore Exhibit-15 be treated as FIR. Exhibit-170,
information received from control room at 6.27 a.m., the name is
incorrect. Amit Gupta is a vague information. DW-1 have no
personal knowledge about information. DW-2 has stated that
deceased and complainant came together, which is not
supported by documents. Accused himself has admitted in his
written statement that Avik came at 7.00 a.m.
196. Evidence of PW-1 corroborates with PW-35 and PW-31
coupled with admission of accused, which falsifies the entry in
Exhibit Nos. 170 and 172. Exhibit-173, the entry in it clears the
picture to some extent but name of PW-1 is mentioned wrongly.
The timing 5.30 a.m. Is correct. DW-1 and DW-2 taken the wrong
entries in log book and therefore, cannot be treated as FIR.
197. Delay in sending FIR is not denied. But it is not fatal to
prosecution. There was no enmity between accused and PW-1 to
fabricate the documents and the FIR is not against accused. It is
against unknown person. There is no suggestion about enmity.
198. Delay is not fatal to prosecution, as no prejudice cause
to accused. Exhibit-15 is natural FIR, which sets the law in
motion. It does not implicate the accused by any means. It is a
formal document.
199. As per Section 167 of Cr.P.c. it requires to make aware
about the crime to Magistrate. No time limit is given. It is
mentioned as forthwith, means within 24 hours not fatal in this
case.
200. Inquest panchanama and Spot panchanama proves
that offence was registered on 9.8.2012, as number of FIR is
mentioned in said documents. It hardly makes the difference by
sending FIR on 11.8.2012. There is no suggestion that spot
panchanama was conducted subsequently.
201. There is no cross to PW-9, which gives presumption
that deceased was molested.
202. Section 132 of Indian Evidence Act, there is
misconception of provisions of law insisting for case diary.
Hence, cross of PW-39 the I.O. on this point is irrelevant. Not
filing all the documents, no prejudice cause to accused. There is
no such suggestion.
203. There is negligence of police officer of not filing case
diary and about dog squad but no prejudice cause to the accused.
204. In written statement, the accused has admitted five
facts.
1) He was working as watchman at night.
2) Knowing Pallavi and PW-32 even before the incident
3) Pallavi made complaint on phone about disturbance in
electricity supply.
4) Accused and Electrician went to flat of deceased for
repairs.
5) On 9
th
August at 7.00 a.m. Avik came from outside.
205. He has not explained injuries on his person and given
false reason that he was beaten by police and therefore, has
sustained injuries. There is no such suggestion.
206. The Learned SPP has submitted that there are 35
(clinching) circumstances against the accused. The prosecution
has proved the case beyond the reasonable doubt and hence,
prayed to convict the accused.
207. On the other hand, the Learned Counsel for accused
Mr. Wahab Khan has argued that a poor man is targeted in the
case. There are only two circumstances against the accused.
Extra judicial confession and recovery, which is not an
incriminating circumstance.
208. The facts, which are not disputed by the defence
cannot be incriminating circumstance. The prosecution has
come with the story that to rape the deceased, was the motive for
accused to commit murder, which is not mentioned in final
report by the I.O. There is no proximity in asking question to
PW-1, which is leading question and is an improvement.
209. The incident is mentioned by PW-1 about complaint
by deceased against accused is of July 2011. Exhibit-16 leave and
license agreement shows that they occupied the flat in November
2011, which falsifies the story of prosecution. The prosecution
has not examined licensor. Adverse inference can be drawn
against prosecution.
210. The prosecution failed to establish the motive. The
evidence of landlord was necessary to identify the keys.
211. The accused has examined DW-1 and DW-2, as it was
not examined by prosecution, though they were cited as
prosecution witnesses and also not examined as Court witnesses
and non examination of Police Constable Kadam, cause prejudice
to defence.
212. The prosecution has not examined the Chemical
Analyser and therefore, there was no opportunity to accused to
cross examine him. Why it took 1-1/2 months for results of C.A.
when it took 45 minutes. Chemical Analyser Mr. N.B. Ptail is not
examined. The period of C.A. Reprots are contradictory and
overlapping to PW-38 Mr. Lade. CA Report have to be discarded.
213. The prosecution has examined DNA Expert Mr. Lade
(PW-38). The electophergram chart is not produced. The chart
produced before the Court is manually tallied chart and is
therefore secondary evidence and hence, it is required to be
discarded. There is no consistency of PW-38 and documents
produced by him, why it took 1-1/2 month is not explained.
214. It is argued that the complainant Avik is the author of
crime. The evidence of DW-1 and DW-2 is admissible under
Section 6 of Evidence Act, which proves involvement of Avik in
this crime. Call diversion facility is there. Therefore, destination
can be diverted. Tower location of Pallavi though provide by
Nodal officer, is not produced by the prosecution in Court. As it
would prove that the arrival of Pallavi at 5.00 a.m. alongwith Avik.
There is no explanation for supporting CDR of Pallavi.
215. The meter room was accessible to accused, but it is not
the case of prosecution that supply of electricity was mischief of
accused.
216. FIR is hit under Section 162. It is not immediately
recorded after disclosure of cognizable offence. Deliberately,
time was consumed to give the colour to protect PW-1.
217. There is delay of 2 days in sending it to Magistrate, is
not explained. The defence relied on judgment of Hon'ble
Supreme Court reported in AIR 2009 Supreme Court 2955 in the
matter of Ganesh Gogoi Vs. State of Assam, in which it is held
that -
As per Sections 154 and 162 of Cr.P.C. if the FIR is
filed after commencement of investigation, the FIR is
hit by Section 162 of Cr.P.C. and no value can be
attached to the same.
218. Statement under Section 313 of Cr.P.C. cannot be
equited with evidence, as it is not on oath. Hon'ble High Court of
Madhya Pradesh has held in judgment reported in 2011 AIR SCW
1956 in the matter of State of M.P. Vs. Ramesh & Anr., that
Statement of accused made under Section 313,
Cr.P.C. can be taken into consideration to appreciate the
truthfulness or otherwise of the prosecution case.
However, as such a statement is not recorded after
administration of oath and the accused cannot be cross
examined, his statement so recorded under Section 313,
Cr.P.C. cannot be treated to be evidence within the
meaning of Section 3 of the Evidence Act, 1872.
219. Exhibit-140 proves that there was interference on the
spot before Spot panchanama. It was not guarded and not free
from doubt, hence, adverse inference is required to be drawn.
220. In panchanama, cigarette buds are found, which
shows that accused was present in the house, as no lady keep
garbage in the house till night.
221. There is no explanation about mobile of Palalvi and
Avik. Keys were not same, which were recovered from accused
Exhibit-16. There is no explanation about the number of keys
Exhibit-72. There are two keys of same door. It appears to be
improbable. The accused relied on judgment of Hon'ble Supreme
Court reported in AIR 1974, Supreme Court 344 in the matter of
Harchand Singh and Anr., Vs. State of Haryana, in which it is
held that -
In a case, where the prosecution leads two sets of
evidence, each one of which contradicts the other, it is
difficult to found the conviction of the accused.
(Judgment of Punjab ?High Court reversed)
222. As per Exhibit-107, ADR was registered at 7.30 a.m.
ADR and FIR are registered at 2 different times, which proves that
more than one statement of PW-1 is recorded. Police were
suspecting PW-1 as accused.
223. Evidence of PW-1 is not consistent. It vitiates the
mandate of 154. ADR statement is supported by prosecution.
FIR in this case is preliminary and is concocted document.
224. The watchman, to whom PW-1 has brought on spot
are not examined by prosecution. PW-19 is not the person, as he
has stated that police were present there. As per FIR PW-1 took
them. Police were not there.
225. PW-20 examined by the prosecution does not have
personal knowledge. The I.O. has removed the original witnesses
and planted PW-19, PW-20 and PW-22. Material contradiction in
the case falsifies the evidence of PW-19 and PW-20. Evidence of
PW-19 and PW-22 is doubtful. There is no need for extra judicial
confession. No need to disclose about murder to demand money.
This conduct attributed to accused appears unnatural and
improbable.
226. Evidence of PW-10 is not trustworthy, as missed calls
are not reflected in CDR. Date of Birth and address is given false.
Missed calls by accused are not reflected in CDR.
227. If she had complained against accused about evil eye,
then calling accused at night by deceased is improbable.
228. Conduct of accused is unnatural to disclose about the
crime. Evidence of PW-19 and PW-22 is improbable. There is
contradiction in evidence of Key of meter. Accused took Khalid,
when he had an opportunity to go alone. It shows that there was
no motive of lust.
229. PW-19 and 22 are brought up witnesses are
contradictory to complaint.
230. Conduct of Kanade is unnatural though he was
knowing the name of accused. Not registered FIR, which discard
the extra judicial confession. There is no proximity for demand of
money. There is disclosure.
231. Recovery is in piecemeal. There is gap of 2 days in
disclosure statement. It is from open place, which is not within
the domain of accused.
232. There is no investigation about shoe rack, from which
the recovery of knife is shown. To whom it belongs is not
establish and how it was accessible to accused. Hence, disclosure
required to be discarded. The spot was not intact. Recovery is
not proved. PW-28 has not stated that it was wrapped and in
sealed condition. It does not inspire the confidence.
233. In this case, the motive is not proved and extra judicial
confession is also not proved.
234. Exhibit-85 proves that it was known to the officer that
he is going to produce something. Oral evidence about timing is
contrary to documentary evidence.
235. Exhibit-68A falsifies the recovery. It does not
incriminating against the accused. He was not having domain
over the place, from where the articles were recovered. True
picture of CDR is not come out, as tower location of deceased is
not produced on record. Not filing tower location is interference
in administration of justice amounting to contempt of Court.
236. The accused relied on the judgment of Hon'ble
Supreme Court reported in 2007 Cri. L.J. 1000 in the matter of
Vikramjit Singh @ Vicky Vs. State of Punjab, in which it is held
that -
Further, purported independent circumstances
do not form link in chain. Not showing that accused
and only accused committed crime. Accused entitled to
acquittal.
237. It is argued that presence of accused on the spot is
natural, as he was doing the job and staying there. In support of
his arguments, he has relied on judgment reported in 2012 AIR
SCW 782 in the matter of Madhu Vs. State of Kerala, in which it
is held that -
Evidence as to presence of accused near place of
occurrence doubtful. Moreover accused being
neighbour, his presence at place of occurrence was
inconsequential.
238. Evidence of PW-20 is hearsay evidence. It is argued
that motive to commit rape is not proved by the prosecution.
The defence relied on judgment of Hon'ble Bombay High Court
reported in 2008(2) Bom. C.R. (Cri.) 86 in the matter of Ramesh
Govind Thakur Vs. State of Maharashtra, in which it is held
that-
Motive may not be relevant in a case where the
evidence is overwhelming, but it is plus point for the
accused in cases where the evidence is only
circumstantial.
239. It is argued that failure of a party to prove his defence
does not amount to admission. In support of his argument, he
relied on judgment of Hon'ble Supreme Court reported in (2012)
8 SCC 148 in the matter of Union Bank of India Vs. Ibrahim
Uddin and Anr., .
240. Last 8 phone calls of number of accused are of PSI
Chaudhary. Exhibit-156 proves that Mr. Kanade was receiving
said calls. Case diary is not deposited in Court and is tampered.
The prosecution failed to prove the case against the accused.
Hence, prayed to acquit the accused.
241. This is the case of murder of a young promising
advocate. She was staying with her boyfriend at 1601, 'B' wing, 16
th Floor, Hamilayan Height Building, Bhakti Park, Wadala (East)
Mumbai.
242. On 8.8.2012, it was the last night for her. It was not
known to her that she was calling to the accused means she was
inviting her death. On that day she was disturbed because the
electricity was coming and going for several times. Her boyfriend
Avik was in office. She informed it to her boyfriend and he asked
her to inform about it to watchman so that he will call the
electrician. Accordingly, she called watchman Sajjad, who was on
duty. Sajjad called the electrician Dharmesh Gupta. At his first
visit, Sajjad has shown the flat of deceased to Dharmesh Gupta
and he went away. Again there was problem of electricity.
Therefore, Pallavi again called the electrician. He repaired it and
went away. After 12.00 a.m. at night, when again there was no
light, she again called the electrician but he refused to come at
late night. Thereafter, she called the accused and he went to her
with Khalid. They solved her problem and went back. Her last
call to Avik was at 1.30 a.m. and thereafter, she gave blackberry
message saying to Avik that she is going to sleep. At 5.30 a.m. Avik
came to his house and found his girlfriend in pool of blood. He
informed about it to police.
243. The accused, who was Security Guard in said building
and was in contact with deceased, as the accused has admitted
that he knows both Avik and deceased and light of deceased was
kept on going and coming at that night.
244. PW-1 Avik is the complainant in this case. He has
lodged FIR at 9.00 a.m on 9.8.2012 against unknown person, as at
that time he was not aware and not suspected anyone. One of the
witnesses i.e. PW-19 Shabbir Abdul Jalil Khan has disclosed on
the spot to the police that Sajjad had committed this murder as
accused informed about it to him on mobile phone and he was
not found on the spot. Though it was disclosed, without any
further inquiry, FIR was not registered and Avik gave FIR. The
defence counsel has grilled I.O. Mr. Kanade on this point during
cross examination. He has stated that his senior asked him to
conduct further inquiry and therefore, FIR was registered at 9.00
a.m.
245. The defence of the accused is that the FIR is not
recorded on that day. The poor person is targeted in this case. It
is recorded afterwards by giving anti time and therefore, though it
is mandatory to produce the copy of FIR immediately to the
Magistrate, it was sent after two days. Therefore, the FIR must be
recorded antedated and has stated that it is fatal to the
prosecution.
246. FIR at Exhibit-15 is given by the complainant Avik. It is
mentioned in FIR that unknown person has assaulted his
girlfriend with sharp weapon on head, neck, chest, forehead,
hands and killed her. The defence has examined two witnesses
viz. DW-1 and DW-2 to prove that though cognizable offence was
disclosed, the crime was not registered before 9.00 a.m.
According to defence, the cognizable offfence was disclosed at
6.50 a.m. and 7.00 a.m. as per Exhibit-108. The defence has
stated that according to the prosecution the name of accused was
disclosed by PW-19 before registration of FIR. Thereafter also, the
ADR was registered and by giving anti time, manipulated FIR was
sent to the Magistrate on 11.8.2012. The statement of
complainant was recorded at 7.30 a.m. and thereafter his
statement was recorded on 11.8.2012 by manipulating the facts
and therefore, FIR itself is not admissible.
247. After going through the evidence of PW-1 i.e. Avik at
Exhibit-14, it appears that he has given complaint against
unknown person. The name of this accused is not disclosed in
FIR. Therefore, there is no reason for manipulation.
248. Two wireless operator i.e. constables were examined by
the accused as defence witness. DW-1 has proved Exhibit-170.
As per Exhibit-170, as per his evidence, the defence brought on
record that cognizable offence was occurred on wireless message
but no FIR was registered. During cross examination, it is brought
on record by Learned SPP that because of continuous
information from different police stations, some mistakes are
expected and if they noticed said mistake, they used to correct it
and it is admitted by the defence witness that entry of correction
is made in the log book.
249. It is pointed out by Learned SPP that all the mistakes
are not corrected by them. The name of Pallavi Tayyapa is not
corrected therefore, only on the wireless information, which is of
short nature and cryptic, the FIR cannot be registered.
250. Learned SPP relied on the judgment of Hon'ble
Supreme Court reported in 1994 SCC (Cri) 609 in the matter of
Ramsinh Bavaji Jadeja Vs. State of Gujarat, in which it has held
by the Hon'ble Supreme Court that -
whether the cryptic information given on
telephone by Head Constable can be held to be the first
information report of the occurrence. Section 154 of the
Code of Criminal Procedure (hereinafter referred to as
the Code) requires an officer in charge of a police
station to reduce to writing every information relating
to the commission of a cognizable offence, if given
orally to such officer. It further requires that such
information, which has been reduced to writing shall
be read over to the informant and the information
reduced to writing or given in writing to the person
concerned shall be signed by the person giving it.
In support of his arguments, Learned SPP also relied
on judgment of Hon'ble Supreme Court reported in AIR 2001 SC
2637 in the matter of T.T. Antony Vs. State of Kerala.
251. The new story of deceased and complainant coming
together at 5.00 a.m. according to defence is introduced by this
witness. The witness received information that deceased and
Avik came at 5.00 a.m. from the work. The accused himself has
admitted that she was there, he visited her house, her lights were
kept on going and coming. Therefore, there is no substance in the
argument. The defence is not probable.
252. The witnesses PW-19 Shabbir Abdul Jalil Khan,
PW-20 Mohammed Sadik Mir, PW-22 Mohammed Khalid
Muneer Hussain Khan and PW-32 Mr. Dharmesh Mewalal
Gupta are the witnesses, from whose evidence it proves that
deceased was very much at house at night and Avik was not
present in the house, therefore, defence of accused not
producing the tower location of deceased is baseless.
253. As the information was cryptic and not correct, it was
not possible to register the FIR on such cryptic and inconsistent
information. Moreover, the name was not mentioned in said
wireless information. The defence has pointed out the
information received at 6.19 a.m. The information about
'suspected person' is found, is not from Wadala T.T. Police
Station. It is from Antop Hill Police station. Therefore, the
defence tried to mislead the Court by asking said questions.
254. One of the witnesses has disclosed the name of
accused, but at that time, the law was not set in motion.
Interpretation of Entry No.11, Para 2, the inquiry will be
commenced after recording the statement of Avik. It is wrongly
interpreted by accused and has stated that his statement was
recorded before 7.30 a.m.
255. The Spot Panchanama and Inquest Panchanama
shows the crime number, which are conducted on 9.8.2012.
Therefore, it proves that FIR was recorded on 9.8.2012. It is the
legal position that the FIR should be immediately (forthwith)
sent to the Magistrate though, the date is mentioned in FIR
9.8.2012. It is received by Magistrate on 11.8.2012, which is the
mistake of I.O. He had not taken care to send the FIR to
Magistrate, but it is not fatal to the prosecution case. It is held by
Hon'ble Supreme Court in the judgment reported in (2006)
(2)SCC (Cri.) 484 in the matter of State of J & K Vs. S. Mohan
Singh and Anr., that
In the present case, the occurrence is said to have
taken place on 23.7.1985 at 6 p.m., the first information
report was lodged at 7.20 p.m. and a copy of the same
was received by the Magistrate on the next day i.e.
24.07.1985 at 12.45 p.m. The High Court was of the
view that there was inordinate delay in sending the
copy of first information report to the Magistrate as the
same was not sent to the Magistrate during the night
between 23.7.1985 and 24.7.1985. In relation to this, the
prosecution has taken a definite stand that as there was
no practice prevalent in the area for sending the report
to the residence of the Magistrate, as such no adverse
inference should have been drawn by the High Court
for not sending the report at the residence of Magistrate.
In our view, copy of the first information report was
sent to the Magistrate at the earliest on the next day in
the Court and there was no delay, much less inordinate
one, in sending the same to the Magistrate. In any view
of the matter, it is well settled that mere delay in
sending the first information report to a Magistrate
cannot be a ground to throw out the prosecution case, if
the evidence adduced is otherwise found to be credible
and trustworthy.
256. Therefore, I am of the opinion that the FIR was not
antedated and though it was sent on 11.8.2012 i.e. after 2 days,
considering the other circumstances, it is not fatal to the
prosecution case.
257. The circumstances against accused to be proved are -
1. Extra judicial confessions
2. Motive
3. Recovery at the instance of accused
4. Injuries on person of accused
258. One of the important circumstance against accused to
be proved by prosecution is extra judicial confession.
259. It is argued by Learned SPP that the admission of
crime before the persons other than Magistrate is extra judicial
confession. Every admissions is not the confession. But all
confessions are admissions. It is argued by the counsel for
accused that why one should disclose the crime to the witnesses.
It is unnatural and nobody disclose about his guilt to all the
persons. It is very nicely explained by Learned SPP that
disclosure of a crime committed by him is not a common thing.
Why he discloses it ? It is out of rebendance, by pride, boosting,
by way of confidence or as a sudden reaction to a particular act.
The prosecution relied on judgment of Hon'ble Supreme Court
reported in 2005 SCC (Cri.) 582 in the matter of State of U.P. Vs.
Devendra Singh, in which it is held that -
There is no set rule of natural reaction. Human
behaviour varies from person to person. Different
people behave and react differently in different
situations. Human behaviour depends upon the facts
and circumstances of each given case. How a person
would react and behave in a particular situation can
never be predicted. Every person who witnesses a
serious crime reacts in his own way.
260. Though the authority is in respect of witnesses, it is
applicable to accused also, as human being.
261. There are witnesses examined by the prosecution, with
whom the accused has confessed his guilt. PW-10 Ahmed Ismail
Shaikh, Driver of neighbour of deceased has deposed that he is
the driver of Mr. Palta, the resident of Bhakti Park and therefore,
he was the friend of accused, which is admitted by the accused in
his statement under Section 313 of Cr.P.C.
262. On 9.8.2012 at about 10.30 a.m., he saw 5-6 missed
calls on his mobile from Sajjad. Therefore, he called him from his
mobile No.9821771518 on his mobile no.9768815312. At that
time he told that society me ek item ne mujhe kam karne nahi
diya, isliye maine use mar dala and he started laughing. When
he asked the accused to whom he killed and he thought that the
accused is in habit of passing such filthy comments on girls and
he must be joking. After 2-3 minutes, he received call from Sajjad
demanding Rs.10,000/- to go to Jammu & Kashmir.
263. The evidence of this witness corroborates with CDR
filed on record at Exhibit-47(colly.). PW-7 Nodal officer Mr.
Rakesh Prajapati had given call details of Ahmad Ismail.
Calls between PW-10 Ahmed Shaikh and accused Sajjad Pathan
Sr.
No.
Deposition of
PW-10 Ahmed
Shaikh
Date and
time from
CDR of
mobile
phone no.
9821771518
of PW-10
(Exh.47)
Dura-
tion
Date and time
from CDR of
mobile phone
no.
9768815312
of accd. Sajjad
(Exh.42)
Dura-
tion
1 PW-10 Ahmed
deposed that, on
9.8.2012 at about
10.30 a.m. he
noted that there
were 5-6 missed
calls on his mobile
from Sajjad. When
he called him and
asked him as to
why he had called
him. Then Sajjad
told him that he
had killed one
lady, who was
staying in the
society as she did
not allow him to
do sex. On hearing
this, PW-10 asked
him who was that
lady, Sajjad did
not reply and
started laughing
and he cut the
phone call.
09 Aug.
2012
at 10.22.22
hrs.
(Outgoing)
Page No.10,
Entry No.9
from top
28 09 Aug 2012
at 10.22.21
hrs.
(Incoming)
Page No.5
Entry No.8
from top
28
Sr.
No.
Deposition of
PW-10 Ahmed
Shaikh
Date and
time from
CDR of
mobile
phone no.
9821771518
of PW-10
(Exh.47)
Dura-
tion
Date and time
from CDR of
mobile phone
no.
9768815312
of accd. Sajjad
(Exh.42)
Dura-
tion
2 PW-10 Ahmed
Shaikh further
deposed that, after
2-3 minutes of
first conversation,
accused Sajjad
called him and
demanded Rs.
10,000/- to go to
his native place at
Jammu & Kashmir.
06 August
2012 at
10.23.17
hrs.
(Incoming)
Page No.10
Entry No.
10 from top
139 09 Aug. 2012
at 10.22.17
hrs.
(Outgoing)
Page No.5
Entry No.
9 from top
138
264. The call details proves that PW-10 received phone call
from Sajjad and they talked with each other at a particular time,
which he has mentioned in his evidence.
265. The argument of defence on this point is that nobody
disclose the criminal act to anybody so casually. It cannot be
interpreted that it was sexually coloured informaiton. Kam nahi
karne diya means not only the sex, it can be the electric work or
any other work, it does not mean sex. The comment of accused
ek item shows his intention about sex and not any other work.
Therefore, the confession of accused with this witness is about
sexual intercourse with deceased and not any other work.
266. Another confession is made by this accused is with
PW-19 Shabbir Abdul Jalil Khan. He has stated that on
09/08/2012 at 1.00 a.m. he was on round along with Mohammed
Khalid. At that time Sajjad Pathan came in the uniform and told
him that the light of flat No. 1601 of Pallavi Madam was not
working and Madam was calling him. Khalid took the torch
which was in his hand and he went with Sajjad in the flat no.
1601. Khalid went with him. Thereafter he asked Khalid what
happened. He told that the light of Pallavi Madam was not
working. Thereafter he went on round. Thereafter at about 5.00
a.m. he went to take the rest. At that time he received phone call
from Sajjad Pathan and he asked him to give Rs. 10,000/- as he
wanted to go to his native place. He told him that he did not have
that much amount and he had requested that he was having
urgency. He asked him to meet him in the morning. At that time,
he told him that he had killed Pallavi Madam who is staying in
Flat no. 1601, Himalayan Heights. He thought that he was giving
some reason for taking the money and he was joking.
267. PW-19 is the person, who has immediately told the
police that Sajjad has committed this murder. He came to know
about it from Sajjad. The mobile number of Sajjad is 9768815312
and mobile number of Shabbir is 7208719156. The call details at
Exhibit-23(colly.) is proved by PW-3, the Nodal Officer.
Chart disclosing incoming and outgoing calls between
1) PW-19 Shabbir Khan and accused Shajjad Pathan
2) PW-19 Shabbir and PW-22 Khalild Khan
Sr.
No.
Deposition of PW-19
Shabbir Khan
Date and
time from
CDR of
PW-19
Shabbir
Khan
(Exh.52)
Dura-
tion
Date and
time from
CDR of
accused
Sajjad
(Exh.42)
Dura
-tion
1 PW-19 Shabbir deposed
that, on 9
th
Aug. 2012
at about 05.00 a.m.
accused Sajjad called
him and asked for Rs.
10,000/- for going to
his native place.
PW-19 told him that he
was not having money.
Accused Sajjad told
him that he required
urgently. PW-19 Shabbir
asked him to meet in
morning. Then accd.
Sajjad told him that he
murdered Pallavi Madam
who was staying in
Himalayan Heights.
09 Aug.
2012
at 05.14hrs.
(Incoming)
Page 3
Entry No.
18
186 09 Aug.
2012 at
05.14.08
hrs.
(Outgoing)
Page 4
Entry No.
12
185
2 PW-19 Shabbir deposed
that, on 9
th
Aug. 2012
at about 06.00 a.m. he
got a phone call of
PW-22 Khalid informing
him that Pallavi who
was staying in flat no.
1601, Himalayan
Heights was murdered
09 Aug
2012 at
05.45 hrs.
(Incoming)
Page 3
(Entry No.
19)
17
Sr.
No.
Deposition of PW-19
Shabbir Khan
Date and
time from
CDR of
PW-19
Shabbir
Khan
(Exh.52)
Dura-
tion
Date and
time from
CDR of
accused
Sajjad
(Exh.42)
Dura-
tion
3 PW-19 Shabbir says
that, on 9
th
Aug. 2012
at about 7.00 a.m. To
07.15 a.m. Accused
Sajjad called him and
asked where was he ?
When he told him tha
he was in Sion
Hospital and asked
him as to why did he
killed Pallavi Madam ?
So Sajjad told him, that
he had already
informed him in the
night about it and
Sajjad asked him
whether he was giving
him money or not ?
09 Aug
2012
at 07.17
hrs.
(Incoming)
Page 9
(Entry No.
35)
25 09 Aug.
2012
at
07.17.06
hrs.
(Outgoing)
Page 4
(Entry No.
15)
268. The timing which is mentioned by Shabbir is proved
through documentary evidence and through evidence of PW-3,
Nodal officer.
269. PW-20 Mohd. Sadik has stated that PW-19 informed
about it to Sadik and he also told that he informed it to police.
270. The prosecution has examined PW-22 Mohd. Khalid
Hussain Khan. He went with Sajjad. PW-22 has stated about the
intention of accused. He has stated that at about 1.00 a.m. they
were on round. At that time accused Sajjad Pathan came there
and he told that the lights of Pallavi madam were not working
therefore he went with accused by taking torch. They rang the
bell but the bell was not ringing accused called the madam from
his mobile. When she opened the door, she was wearing half
pant and half shirt. He asked her what had happened. She told
him that lights were not there. He entered in her flat with accused
and he saw the main switch was on. At that time accused asked
madam whether Avik Sir is in the house. She told that he is not
there and he would come in the morning. Thereafter accused and
he came out. Thereafter they took the key of meter room and
they saw that the main switch was tripped and they started it.
Again the lights were on. Thereafter again they went at Flat no.
1601 and rang the bell. Madam opened the door and she told
that the lights were on and she gave thanks to them and
thereafter they came back. After coming from flat, accused told
him that in said clothes, Pallavi Madam was looking very sexy
and he wanted to sleep with her for one night. At that time he
became angry. The accused told him that he was joking.
Thereafter accused went towards Himalayan Heights 'A' Wing.
He went towards Julian Alpas.
271. The comment, which the accused has passed after
watching deceased in scanty cloths shows that he was sexually
excited by watching Pallavi in such few clothes.
272. Call detailes of accused and deceased proves that he
made a call at 1.00 a.m., when he went to her Flat. Call from
accused to deceased is proved through nodal officer PW-5, Vikas
Narayan Phulkar.
Outgoing call from accused Sajjad Pathan to deceased
Sr.
No.
Evidence of PW-22
Khalid
Date and
time from
CDR of
mobile
phone no.
9768815312
of accused
Sajjad
(Exh.42)
Dura-
tion
Date and
time from
CDR of
mobile
phone no.
9769446081
of deceased
(Exh.37)
Dura-
tion
1 PW-22 Khalid Khan
(Para 3) deposed
that on 9 Aug. 2012
at about 1.00 a.m.
Sajjad Pathan told
him that lights of
Pallavi's flat were
not working and
therefore, both
went to her flat and
they rang the door
bell of Pallavi's flat.
As Pallavi did not
open the door.
Sajjad called
Pallavi from his
mobile.
09 Aug.
2012 at
01.08.55
hrs.
(Outgoing)
Page No.4
(Entry No.
11 from
top)
10 09 Aug.
2012 at
01.08.54
hrs.
(Incoming)
Page No.2
(Entry No.
16 from
top)
11
273. All these witnesses were close friends of accused. After
watching deceased in said clothes, he got exited. He opened his
mind in front of PW-22. The witnesses were not having any
enmity to depose against the accused and therefore, confession
made by accused to these witnesses is reliable and does not
create any doubt about its truthfulness.
274. The prosecution has relied on the judgment of Hon'ble
Supreme Court reported in 2001 SCC (Cri.) 323 in the matter of
Gura Singh Vs. State of Rajasthan, in which it is held that -
It is settled position of law that extra judicial
confession, if true and voluntary, it can be relied upon
by the Court to convict the accused for the commission
of the crime alleged.
Corroboration of such evidence is required by way
of abundant caution. If the Court believes the witness
before whom the confession is made and is satisfied
that the confession was true and voluntarily made,
then the conviction can be founded on such evidence
alone.
275. All the witnesses in this case, to whom the accused has
made extra judicial confession are his friends. There is no reason
for them to depose against accused. The authority cited by
Learned SPP is applicable in this case. The accused has deposed
about the crime on phone to his friends, which is proved from
call details. He asked money for going to his native place. He was
in preparation to run away from Mumbai and to all these
witnesses, he demanded Rs.10,000/-. All the witnesses were his
friends, therefore, they have no reason to depose falsely against
him.
276. It is held by Hon'ble Supreme Court in judgment
reported in 2003 (6) Supreme 11 in the matter of State of
Rajasthan Vs. Rajaram that -
An extra judicial confession, if voluntary and true
and made in a fit state of mind, can be relied upon by
the Court. The confession will have to be proved like
any other fact. The value of the evidence as to
confession, like any other evidence, depends upon the
veracity of the witness to whom it has been made. The
value of the evidence as to the confession depends on
the reliability of the witness who gives the evidence. It
is not open to any Court to start with a presumption
that extra judicial confession is a weak type of evidence.
It would depend on the nature of the circumstances, the
time when the confession was made and the credibility
of the witnesses who speak to such a confession. Such a
confession can be relied upon and conviction can be
founded thereon if the evidence about the confession
comes from the mouth of witnesses who appear to be
unbiased, not even remotely inimical to the accused
and in respect of whom nothing is brought out which
may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused, the
words spoken to by the witness are clear, unambiguous
and unmistakably convey that the accused is the
perpetrator of the crime and nothing is omitted by the
witness which may militate against it. After subjecting
the evidence of the witness to a rigorous test on the
touchstone of credibility, the extra judicial confession
can be accepted and can be the basis of a conviction if it
passes the test of credibility.
277. The confession to PW-10 and PW-19 is clear. The
accused has stated that he has committed the murder of Pallavi.
The comment and the words used for Pallavi that item shows
the intention of accused. There is no suggestion to this witness
that the confession was conducted tainted non-voluntary or it
was obtained by inducement coercion etc. The Learned SPP
relied on the judgment of Hon'bel Supreme Court reported in
2005(6) Supreme 551, in the matter of State of Andhra Pradesh
Vs. Kanda Gopaludu, in support of his arguments.
278. Learned SPP also relied on the judgment of Hon'ble
Supreme Court reported in (2008) 2 SCC (Cri.) 264, in the matter
of Alok Nath Dutta and Others Vs. State of West Bengal. No
circumstances brought in cross examination or by examination
of induced witnesses that statements of witness proving the
confession was not concerned. Considering all these authorities,
evidence of witnesses to whom the accused has confessed. The
extra judicial confession does not create any doubt. Hence, extra
judicial confession is a reliable circumstance against accused.
279. Every criminal act is done with motive. In a case of
circumstantial evidence,it is necessary to prove motive. No
offence is without motive. There is no motiveless crime.
According to the prosecution, the accused was having evil eye on
Pallavi. He was lecherous. Whenever she went out, he used to
watch her. Avik Sengupta, who was her boy friend had deposed
that in July 2012, Pallavi told him that, Sajjad is becoming very
smart. He tried to talk with her and used to lecher her. At that
time Avik told her that as she is very pretty girl, it happens with
pretty girls and asked her to ignore it.
280. This part of evidence is treated by the accused as
improvement, as it was not stated by complainant in his FIR. On
this point, it is argued by the Learned SPP that it is not an
improvement. Public Prosecutor is at liberty to get explanation
from his witness. It is by way of question and answer.
281. Learned SPP relied on judgment of Hon'ble Supreme
Court reported in (2000)10 SCC 582 in the matter of
Chandrasekhar Sureshchandra Bhatt and Ors., Vs. State of
Maharashtra, in which it is held that -
The marginal variations between the statement
of the prosecution witness recorded under Section 161
Cr.P.C. and the testimony given in court, cannot be
dubbed as improvements made with any sinister
motive. They are elaborations elicited by the Public
Prosecutor during the examination-in-chief. It is the
prerogative of the Public Prosecutor to elicit such points
from a witness as it deems necessary for the case. No
Public Prosecutor can be nailed to the statement
recorded under Section 161 of the Code.
282. Here, the prosecution has brought on record this fact
by way of explanation. Moreover, the complainant has stated in
his evidence that at the time of giving complaint, he was
disturbed and therefore, has not mentioned all facts on 9.8.2012.
He has given his supplementary statement and has mentioned
about the complaint of deceased.
283. Hon'ble Supreme Court has held in the judgment
reported in 2000 SCC (Cri.) 1546 in the matter of Narayan
Chetanram Chaudhary and Anr., Vs. State of Maharashtra that,
if the details are sought by P.P., then such narrations cannot be
condemned as omission.
284. Hon'ble Supreme Court has held in the judgment
reported in 2004 (11 SCC) (Cri.) 585 in the matter of Esher Sing
Vs. State of A.P. that, a mere elaboration cannot be termed as a
discrepancy and Hon'ble Court has also held in the judgment
reported in 2005 SCC (Cri.) 812 in the matter of Jay Karan Vs.
State of U.P. that, clarification of a fact cannot be condemned as
improvement.
285. Here, the case in hand the complainant has given
clarification that in July, the deceased has made complaint that
the accused lecher her gandhi nigaho se dekhta hai as he was in
grief of brutal murder of his girlfriend, has not disclosed it in
complaint and Learned SPP has rightly by way of question sought
the explanation of said incident.
286. The counsel for accused has submitted that the
complainant has deposed in July 2011. She had made complaint
against accused when the deceased was not staying there, it
means this is a concocted story to implicate the innocent person
in this case. The Leave and License Agreement shows that they
came to stay in Himalayan Heights in October 2011. It appears
that it is a typographical mistake of year. It must be 2012
immediately before month of incident and as per the guidelines
of Hon'ble Supreme Court, it is not an improvement.
287. Inquest Panchanama at Exhibit-59 proves that the
deceased was wearing Sports Bra and Hot Pant. The string of
nicker was broken and it was torn. It is corroborated with the
evidence of Jagruti (PW-11). At the time of conducting Inquest
Panchanama, the position of nicker must be like that, as she
found it as torn. As she is the best person depose about it, who
saw her in said clothes. Her evidence was not challenged. It
means it is admitted by the accused. The injuries caused to
deceased were serious injuries It shows that she has struggled
hard to save herself from the clutches of accused. She was
assaulted on her face, chest and back. The Spot Panchanama at
Exhibit-64 proves that it started from her bed room. She was
sleeping and accused must have entered the flat and attempted
to rape her and when she resisted, he must have started
assaulting her. The panchanama shows that the bed sheet was
scattered, pillows and bed covers were lying on floor. There were
blood stains. It proves that his intention was to ravish her. As she
was having strong built, she must have resisted it with her full
strength. Blood stains at the outside of window proves that she
tried all possible ways to save herself. The trail of blood from her
house to flat No.1602 shows that even after attack, she must have
tried to take help of neighbours by going there and touching the
bell. There are cut injuries on her hand proves that the accused
must have assaulted on her hand, when she tried to press the
bell, as panchanama shows that blood was on bell.
288. Inquest panchanama and seizure of clothes
panchanama shows that the deceased was wearing hot pant and
sports bra. West Sport was written on it. The string of her pant
was broken. The bed sheets were scattered. The pillows were lying
on floor. It proves that there must be scuffle in bed room and she
was assaulted on he throat, back, chest, face and hands. It
appears that in evidence it is mentioned that vest coat and
therefore, defence has argued that there is no recovery of vest
coat. The evidence and article seized during seizure panchanama
proves that the deceased was wearing sports bra and hot pant. It
was written on sports bra west sports and therefore, there is no
question of recovery of vest coat.
289. There is no substance in the arguments of defence that
Avik is the real culprit and he must have committed this offence.
According to accused, he was in house and must have killed the
deceased, as the buds of cigarette were found and no lady keep
the garbage in the house from morning to night. There were two
Hukas (pipes) on the table. There is every possibility of habit of
smoking to the deceased. The accused has stated that he saw
Avik coming in the morning. There is communication of Avik
with deceased till 1.30 a.m. and evidence of Siddharth proves that
the complainant was with him till 4.30 a.m. He dropped Kanika
at Colaba and Siddharth at Dadar and then, he went to his house.
Therefore, there is no substance in the argument of defence
counsel. Call details of Avik and Pallavi proved through nodal
officer PW-3 that Avik was not at home and they had
communication on mobile.
Calls between PW-1 Avik Sengupta and deceased Pallavi
Sr.
No.
Deposition of PW-1
Avik Sengupta
Date & time
from CDR of
PW-1 Avik's
mobile no.
9004091914
(Exh.24)
Page No.3
Entry No.12
Dura-
tion
Date and
time from
CDR of
deceased
Pallavi's
mobile no.
9769446081
(Exh.37)
Dura-
tion
1 PW-1 Avik deposed
that, on 8.8.2012 at
10.30 p.m. Pallavi
asked him as to
what he was doing
in the office ? Avik
told her that he was
busy and will come
back in the
morning
08 Aug. 2012
at 22.35.52
(Incoming)
(Page No.3,
Entry No.12
from top)
35 08 Aug. 2012
at 22.35.51
(Outgoing)
(Page No.1)
35
2 PW-1 Avik deposed
that, on 8.8.2012 at
10.30 p.m. When
Pallavi's call was
disconnected, he
called Pallavi and
she told him that,
there was no lights
in the flat
08 Aug.2012
at 22.36.54
(Outgoing)
(Page No.3,
Entry No.13)
24 08 Aug. 2012
at 22.35.53
(Incoming)
(Page 01)
24
3 PW-1 Avik deposed
that, on 9.8.2012 in
between 01.00 a.m.
to 01.30 a.m.
There was last
conversation
between Pallavi and
him and she told
him that now she is
going to sleep.
09 Aug. 2012
at 01.05.56
(Outgoing)
(Page No.3,
Entry No.22)
101 09 Aug. 2012
at 01.05.55
(Incoming)
(Page 02)
101
290. Extra judicial confession and other circumstances
proves the motive to ravish deceased but he was not successful in
his mission. He took the knife with him, which was purchased
from PW-27 proves that he went there with plan and preparation
to ravish her and kill her.
291. There is recovery of Knife, clothes, keys at the instance
of accused, is the strong circumstance against the accused. There
are two panch witnesses for recovery of clothes and knife. The
prosecution has examined PW-23 for recovery of Knife. On the
date, when the accused has given voluntary statement that he
would produce a knife, which he had concealed at a particular
place in panchanama at Exhibit-85. The accused took them to
Ivory Park at 3
rd
Floor, Himalayan Heights, 'B' wing. He has
produced the Knife. PW-23 has stated that Senior officer arranged
the vehicle. Five to six police persons including two panch
witnesses and accused were in said vehicle. The accused showed
the way and asked to take the vehicle to I-max Adlab Theater,
Bhakti Park and there he asked to stop the vehicle near
Himalayan Heights 'B' Wing. Thereafter all had got down from
the vehicle. Thereafter all had entered the lobby. At the left side
of the lobby, there is wooden staircase. He took them on the third
floor by staircase. On third floor, there was shoe rack. From said
shoe rack, he took the knife from the drawer which was stained
with blood. The handle of knife was of black colour and was
having steel blade. It was sharp by one side. Inspector Tawade
wrapped it in one plastic cover and labelled it and obtained his
signature and signature of another panch witness and prepared
the panchanama. He identified the knife which is at Article 14.
292. The evidence of this witness corroborates with the
evidence of PW-39, API Mr. Tawde.
293. The knife was stained with blood. It was sent to C.A.
The C.A. Report proves that the blood on it was of deceased and
DNA test also proves that it matches with blood of deceased.
294. The prosecution has examined PW-28 Ramsevak Gaue,
from whom the accused has purchased a Knife in Ramzan. He
has stated that he knows Sajjad Pathan. He identified the accused
in Court. He used to come to his shop to take books. He was
working as Watchman at Bhakti Park. The accused himself told
him about his work. In July 2012, the accused came to him and
asked him a knife for cutting the fruits. He does not remember
the date. He gave him steel knife having black handle of 24 cms.
By one side, it was like saw. He identified the knife at Article 14. It
is the defence of accused that recovery was from open place and
accessible and therefore, no reliance can be placed. It was not
locked. Nobody lock the shoe rack. It was not in use, as there
were no shoes in the rack. Question of his arrest was asked in
cross. He has stated that he was acquitted in year 2006. It is held
by the Hon'ble Supreme Court in the judgment reported in
(1999) 4 SCC 370 in the matter of State of Himachal Pradesh Vs.
Jeet Singh that -
The person, who hid it alone knows where it is
until he discloses that fact to any other person. Hence,
the crucial question is not whether the place was
accessible to others or not but whether it was ordinarily
visible to others. Then it is immaterial that the
concealed place is accessible to others.
It is well settled that the discovery of fact referred
to in Section 27 of the Evidence Act is not the object
recovered but the fact embraces the place from which
the object is recovered and the knowledge of the
accused as to it.
295. In the present case, the accused has given statement
that he has concealed the Knife and recovery is at the instance of
accused from hidden place.
296. The accused has given another memorandum
statement on 12.8.2012 the clothes, which were stained with
blood, keys and footwears were recovered at the instance of
accused. The prosecution has examined PW-15 Algarson
Krishnan Devendra, who has stated about it that police asked the
accused to take the physical search of panch witnesses. He
refused it and police called the vehicle. The accused and he
himself and another panch witness and the police officer and
other police staff entered in the vehicle. Thereafter the police
asked the accused when and where to go. Accused asked to take
the vehicle to Bhakti Park. As per the direction of the accused,
the vehicle was taken to Bhakti Park. After coming to second
gate, the accused asked to take the vehicle inside the Himalayan
Height building and he asked to stop the vehicle near Julian
Aalas 'B' Wing. Accordingly the vehicle was stopped. Thereafter
they got down from the vehicle. Thereafter the accused took
them near the room which was between two lifts near Julian
Aalas 'B' Wing. When he opened the door, he found that it was
cabin. In said cabin, there was one tin box which was locked, he
has broken said lock. He took out one black colour pant, one
black half T-shirt, black colour nylon belt. Thereafter he took out
the keys from right side pocket of pant. The pant was having
blood stains. It was dried blood. The blood stains were near the
pocket and at the bottom of the pant.
297. Police wrapped the said clothes in brown paper and
sealed it. There were two keys. The police seized it. The police
put the brown paper and wrapped said keys in one polythene
cover. The black T-shirt was having 3 buttons and at the left side
AHE Security was written and at the back side the words
"SECURITY" were written in bold letters. The police wrapped it
in brown paper, sealed it and obtained his signature on it. The
belt was also sealed in brown paper and labeled it and obtained
his signature. He took out the chappals from said box. The
footwear was stained with blood. Red mark was written on said
chappal. Police wrapped said chappals, sealed it and labeled it
and obtained their signatures. Police prepared the panchanama
and obtained their signatures on it. Another panch, police officer
and accused have signed on it. The copy of panchanama was
given to the accused and his signature was obtained. It is marked
as Exh.68-A.
298. One black pant and one black T-shirt, one belt at
Article 11(Colly.). Chappals at Article 12. Article 10(Colly.) two
keys.
299. The clothes were stained with blood. The I.O. sent it
for DNA and DNA report proves that the hair found on the scene
of crime, blood detected on bra of Pallavi, blood detected on
knife, full pant, half sleeves T-shirt of accused, blood stained hair
found in right hand of Pallavi Purkayastha, hair from left hand of
deceased, hair from chest of deceased and blood sample of
accused. These DNA were amplified with the use of 15 STR
(Short Tandum Ripics) 15 LOCI and gender specific AMELOGENI
Locus using PCR Polymerase Chain Reaction.
300. PW-38 got DNA profiles of all abovesaid samples. He
analyzed these DNA profiles. His interpretation is the DNA
profile of hair found in scene of crime, blood detected on full
pant of accused, blood stained hair found in right hand of
deceased Pallavi and DNA profile of accused is identical and
from one and same source of male origin. DNA found on the hair
at the scene of crime and the DNA found on the hair in the right
hand of the deceased was of accused. The CA report also proves
that blood group of O
+
which was of deceased is the same on the
clothes and footwear of accused.
301. The defence of the accused is that there is gap of 2
days between two recoveries. Why the accused has not disclosed
the clothes and keys at the same time, which creates doubt.
302. One cannot say about the mind of accused. It is totally
on his whims. Whenever he wanted to disclose it, he can and it
depends upon the skill of I.O. during interrogation or on his style
of interrogation. Therefore, it makes no difference though there
are two recoveries after gap of two days. It is also argued that the
articles, which were recovered from the accused were not
exclusively under the domain of accused and it was from open
place. The Knife was recovered from Shoe Rack, which is
accessible to anybody. The owner of Shoe Rack is not established
and how it was accessible to accused is not proved. Therefore,
disclosure required to be discarded. The spot was not intact.
303. It is proved through the witness that the accused took
him on 3
rd
Floor. It appears that the rack was not in use and it is
outside the staircase. There were no shoes in rack. There is no
question of asking about the owner of said rack, from which
there is recovery. It was during investigation. It was under
Section 27 of Indian Evidence Act. Therefore, there is no need to
call Secretary of society or other persons.
304. The clothes, which were recovered were having blood
stains and the C.A. Report proves that the blood was of O group
and DNA was also positive.
305. It is argued by the defence counsel that it is not
incriminating the accused was not domain over the place, from
where the articles were recovered. The source of key is not
established. In cross examination of PW-22 Mohd. Khalid, the
Supervisor has stated that accused used to stay at society only.
He used to keep his clothes in cabin. The keys of said cabin was
with him only. It was not possible for them to go in his cabin
without keys. The accused himself has cemented the claim of
panch witness-15.
306. During investigation, the accused took the police
person to said room. The accused was staying in Bhakti Park only.
He has opened the room and from one tine box, which was
locked, after breaking the lock, he has produced said articles.
The keys, which were recovered were verified in another
panchanama. As it was recovered from accused. There is no need
to examine other witnesses to verify the source of keys. It was
verified by opening the door by said key in presence of PW-17.
The recovery at instance of accused proves the circumstance
against him.
307. The accused was arrested and his physical search was
conducted by PW-36 Kannan Durai Devendra, who has stated
about it that the accused was having injuries on his little finger,
palm, elbow. He was having five injuries on left arm. The police
took physical search of accused in his presence. Police found
one wallet from his back pocket of his pant. One security card,
ATM Card, PAN card and passbook of Bank of India and
residence proof of Jammu and Kashmir. The photograph of
accused was affixed on said Identity card. One mobile was found
from the right side of pocket. It was having red colour border.
Police opened it and removed SIM card from said mobile. The
police recorded the numbers in the panchnama. Police packed it
in one brown paper and affixed label on it. He signed said label.
Police typed said panchanama. He signed said panchanama and
another pancha has also signed on it. Copy of panchnama was
given to the accused and he had signed on it. The panchanama
is at Exhibit-112. It bears his signature at serial No. 2. I identified
Black colour mobile of Nokia Company at Article 22. ATM card of
Bank of India, PAN card, I-card of Jammu Kashmir bearing No. B
0072706 are at Article 23(Colly.) and One Wallet, I-card of A. H.
Enterprise and passbook of Bank of India are at Article 24(Colly.).
308. The evidence of this witness corroborates with the
evidence of PW-26 Dr. Amarsingh Rathod. Dr. Rathod has stated
that on examination of accused, he found following injuries :-
Injury No.1 - Incised wound present over base of left
index finger with bleeding present. Size varing 1.2 cm.
X 0.5 cm. dorsal aspect tenderness present.
Injury No. 2 - Abrasion middle of left little finger dorsal
aspect 0.5 cm. X 0.5 cm.
Injury No.3 Linear abrasion present over left forearm
laterally dorsal aspect 1 cm. 13 cm. from wrist joint
scab formation red in colour. Tenderness present.
Injury No. 4 - Abrasion (Elliptical shape.) 1.5 cm. from
injury No. 3. Red in colour with scab formation .
Tenderness present.
Injury No. 5 - Graze abrasion left arm back 3 cm.
from elbow joint size varying 4 cm X 1 cm. red in
colour . Tenderness present.
Opinion - Cause of injuries :-
Injury No. 1 is due to sharp object.
Injury nos. 2 to 4 is due to sharp object (Nail).
Injury No. 5 is due to hard and rough surface.
Age of injuries within 48 hours.
Accordingly he issued the certificate. The certificate
bears hs signature. It is in his handwriting. It is marked
at Exh.91.
309. The defence while cross examination of this witness
has suggested that the injuries were sustained by defending
himself. The suggestion of injuries because of blunt and hard
object is denied by the accused. The accused has given history in
Exhibit-91 which is by way of confession . Injuries were admitted
by him. The Doctor has deposed that the injuries are possible by
nail scratches while attack.
310. The accused has admitted certain facts during his
statement of 313 and his written statement. From his written
statement he has admitted about lights of deceased kept on
going and coming. He called electrician Dharmesh Gupta. His
defence was that he was present on the spot, when police came
there and he helped police to lift the body and therefore, there
were blood stains on his clothes and therefore, DNA is also
admitted by him. He has answered Question No.84 and 85 about
blood stains on clothes as false, which is contradictory to his own
story in written statement in Question No.181 and 182 has
admitted the blood stains. There is no suggestion that accused
has lifted the body of deceased. In judgment reported in 1999 SC
1153, it is held by Hon'ble Apex Court, if accused gives false
answer under Section 313 against established fact, it proves
missing link. In support of argument, the prosecution also reliled
on judgment of Hon'ble Supreme Court reported in 2003 SCC
(Cri.) 292 in the matter of Anthony D'Souza Vs. State of
Karnataka and (2000) 1 SCC 471 of SCC (Cri.) in the matter of
State of Maharashtra Vs. Suresh. The accused relied on
judgment of Hon'ble Bombay High Court reported in 2006(1)
Bom. C.R.(Cri.) 797 in the matter of State of Maharashtra Vs.
Jagannath Kisan Mane, in which it is held that -
No adverse inference of guilt can be drawn
against the accused from the fact that the blood stains
of the blood group of the deceased were found on the
clothes of the accused.
311. The DNA profile and hair found in the hand of
deceased are matching,hence, the authority is not helpful to
accused.
312. The defence counsel has stated that the accused
statement is not reliable, as it is not on oath. The accused has
relied on judgment of 2011 AIR SCW 1956 in the matter of State
of M.P. Vs. Ramesh & Anr., Though it is held that it cannot be
treated to the evidence within meaning of Section 3 of Evidence
Act, but it can be taken into consideration to appreciate the
truthfulness of the prosecution case. The accused has admitted
the facts cannot be denied.
313. It is argued by Learned counsel for accused that for the
if the specific question is not asked to the witness for omission,
then said fact cannot be condemned as an omission. The
prosecution has relied on judgment of Hon'ble Supreme Court
reported in 2003 SCC (Cri.) 165 in the matter of Alamgir Vs. State
(NCT, DELHI).
314. The defence has stated that there are number of
lacunas in investigation. The investigation is faulty. The FIR was
submitted after 2 days, which is fatal to the prosecution. The I.O.
has not filed finger print report. Case diary is not filed on record.
About the finger prints, the I.O. has stated that it was nil and
therefore, there is no question of report of finger prints. Not
depositing the case diary does not cause prejudice the accused.
Though it is mandatory, the I.O. failed to produce the FIR before
the Magistrate, but it is not fatal to the prosecution case. The
Hon'ble Supreme Court has held in the judgment reported in
2004 SCC (Cri.) 851 in the matter of Dhanaj Singh alias Shera
and Ors., Vs. State of Punjab that -
In the case of a defective investigation the Court
has to be circumspect in evaluating the evidence. But it
would not be right in acquitting an accused person
solely on account of the defect; to do so would
tantamount to playing into the hands of the
investigating officer if the investigation is designedly
defective. (see Karnel Singh Vs. State of M.P.)
315. The Hon'ble Supreme Court has held in the judgment
reported in (2010) 3 SCC (Cri.) 1402, (2010) 9 SCC 567 in the
matter of C. Muniappan and others Vs. State of Tamil Nadu, in
which it is held that -
There may be highly defective investigation in a
case. However, it is to be examined as to whether there
is any lapse by the I.O. and whether due to such lapse
any benefit should be given to the accused. The law on
this issue is well settled that the defect in the
investigation by itself cannot be a ground for
acquittal. If primacy is given to such designed or
negligent investigations or to the omissions or lapses
by perfunctory investigation, the faith and confidence
of the people in the criminal justice administration
would be eroded. Where there has been negligence on
the part of the investigating agency or omissions, etc.
which resulted in defective investigation, there is a
legal obligation on the part of the Court to examine
the prosecution evidence dehors such lapses, carefully,
to find out whether the said evidence is reliable or not
and to what extent it is reliable and as to whether such
lapses affected the object of finding out the truth.
Therefore, the investigation is not solitary area for
judicial scrutiny in a criminal trial.
316. Therefore, delay in producing FIR before Magistrate
Court, though is faulty at the part of investigation is not fatal to
the prosecution case. It is the defence of accused that calling
accused by deceased at late night is improbable, as is having evil
eye on her. She called him, as he was on duty as a Security Guard
and she was in trouble that electricity was kept on going and
coming. Therefore, as he was a guard on duty, she called him and
took his help is not improbable. Nobody anticipate such type of
incident from a person, who is appointed there for security of
residents.
317. It is the defence of accused that the call details shows
that there were calls from PI Mr. Chaudhary and therefore, it is
argued that the accused was in custody of police and Mr. Kanade
was receiving the phone calls. The I.O. PW-39 has stated the calls
were made on mobile of accused to know his whereabouts and
therefore, there are calls on his mobile. He was not in custody of
police.
318. Considering the evidence on record, the chain of
circumstances is completed in this case against the accused.
1) Presence of accused on intervening night on the spot
is proved.
2) Motive to ravish the deceased, as he has expressed his
lust after watching the deceased in scanty clothes to
PW-23, as he has disclosed ek item ne mujhe kam
karne nahi diya, is liye maine use mar dala.
3) There is recovery of blood stained Knife and blood
stained clothes and keys at the instance of accused.
4) DNA test proves that DNA of hair and blood on clothes
matches to DNA of Pallavi and accused.
5) Clothes of accused having blood stains of blood group
O
+
which is the blood group of deceased.
6) Extra judicial confession of accused with his friends
and demanded money for going to his native place,
which is proved through call details and evidence of
witnesses.
7) Fresh injuries on body of accused proves that it was
defence injuries and nail scratches were there.
8) Motive to rape the deceased.
319. The chain of circumstances is completed against the
accused. The prosecution has proved the case beyond the
reasonable doubt. The accused and only accused has committed
this offence. Hence, I answer Point No.2 in affirmative.
320. Motive of the crime was to commit rape on deceased.
But she has resisted and as accused was having Knife, he has
assaulted and has committed a brutal murder of deceased. As
the Inquest Panchanama proves that the string of her panty was
broken and Spot panchanama shows that the bed sheet and bed
covers were scattered and there were blood stains on it. It proves
that he has attempted to commit rape. But his lust was not
fulfilled. The accused has therefore committed an offence of
outraging the modesty of woman under Section 354 of IPC.
Hence, I answer Point No.3 in affirmative.
321. Offence under Section 302 is proved against the
accused. The accused entered the house at night, when she was
alone in the house with preparation to commit an offence
punishable with death sentence, with motive to ravish her and to
kill her. He was having Knife with him, which was identified by
PW-27 and is also recovered at his instance. Therefore, offence
under Section 449 is proved against him. Hence, I answer Point
No.4 in affirmative.
322. As the proclamation was there and he went to the
house of deceased by taking Knife with preparation of committing
murder has committed the offence under Section 37(1)(a) r/w 135 of
Bombay Police Act. Hence, I answer Point No.5 in affirmative.
323. In my considered opinion, offences under Sections
302, 354 and 449 of IPC and under Section 37(1)(a) r/w 135 of
Bombay Police Act are proved against the accused. At this stage
the dictation of judgment is postponed for hearing of accused
and advocates for both the side on quantum of sentence.
324. The counsel for accused requested for time for
arguments on quantum of sentence of punishment.
325. The quantum of punishment under Section 302 is
sentence of rigorous imprisonment of life or death.
326. Learned SPP has argued that when the offence is
punishable with death sentence or life imprisonment, then the
accused should be heard on adjourned date also.
327. Learned SPP has cited the judgment of Hon'ble
Supreme Court, in which it is held that there is provision to hear
the accused on next date till to revive the accused from the shock
of acquisition.
328. Considering the statement made by Learned SPP, the
case is adjourned to 3
rd
July 2014 for arguments on quantum of
sentence on behalf of accused.
(V.V. Joshi)
Addl. Sessions Judge,
City Civil & Sessions Court,
30/06/2014. Gr. Bombay.
329. On the question of quantum of sentence, the accused
has stated that this is not the rarest of rare case, hence, minimum
punishment for life imprisonment may be awarded.
330. Learned SPP Mr. Nikam has argued at length on the
point of sentence. The offence under Section 302, 354 and 449 of
IPC are proved against the accused. Punishment for offence of
murder is for life imprisonment or death. Life is Rule and death
is exception. It is argued by Learned SPP that law never take
revenge. There was no specific guidelines for death before1973.
Therefore, at that time for offence of murder, death was rule and
life was exception. But after amendment in Cr.P.C., Rule is life
and end of life is exception. It required to give explanation, when
the death penalty is there. Three circumstances are to be looked
in to while awarding death penalty.
1) Mode and manner of killing of victim
2) Exceptional cruel attitude while committing murder
3) Behave in such a manner that out of 100 or 1000
people never behave like that.
331. It is the settle principle that life is rule and death is
exception, when the act is more cruel, high decree cruelty, it
becomes exceptional case of murder.
332. In this case, the accused enjoyed the act of kiling. It
comes under the category of rarest of rear case. Depravity,
unscrupulous attitude of accused and total disregard to human
life are prominently present.
333. Learned SPP has argued that purpose of death
sentence is to consider the legal heirs of victim, victim and her
relatives. There are ratio of 2 cases. Apex Court in the case of
Bachan Singh V. State of Punjab (1980)2 S.C.C.684, which lays
down that life imprisonment is the rule and death penalty is an
exception and also lays down the criteria as to when the case can
be called as rarest of rare. and decision in another case by Apex
Court in the case reported in (1983) 3 SCC 470 in the matter of
Machhi Singh & Ors. Vs. State of Punjab , in which the law laid in
Bachan Singh case was further elaborated by Three Judge Bench
and it was emphasized that, the Court should draw a balance
sheet of aggravating and mitigating circumstances and, thereafter
giving maximum weightage to mitigating circumstances, arrive at
an appropriate decision by finding out on which side the balance
tilts.
334. In these cases the Court has laid down certain
mitigating and aggravating circumstances. The Court has to
strike balance between these circumstances, while granting death
penalty. In case of Bachan Singh, basic parameters are given.
They are as under :
1) Whether the accused was mentally or emotionally
disturbed at the time of committing crime. There is no
iota of evidence that accused was mentally or
emotionally disturbed at that time. The accused have
an opportunity, while cross examining witness by
giving statement under Section 313 of Cr.P.C. But it is
not the case of accused that he was mentally or
emotionally disturbed.
2) If the accused is too young and too old, then also
death penalty is not proper.
In this case, the accused is 25 years of age. It is
judicially proved that he was matured at that time and
was aware about the consequences of act, as he tried
to run away to Kashmir. He has committed atrocity on
woman. Therefore, there is possibility of commission
of similar offence. The prosecution has relied on
judgment of Hon'ble Supreme Court reported in 1991
SCC (Cri.)724 in the matter of Sevaka Perumal and
Anr., Vs. State of Tamil Nadu in support of his
argument that young age and only earning member is
the always ground to consider the punishment is not
relevant.
3) Mental feeling of accused against the woman and
young girls proves that there is possibility of
commission of similar offence.
4) Whether he can reform, is incorrigible element
according to his conduct. There is no chance of
reforming.
5) There is no justifying ground for committing murder.
It was only lust, passion and enjoyment.
6) The accused was not under duress or domination, as
he himself went to the house of Pallavi. Nobody has
provoked him.
7) There is no evidence of mental defect. The defence of
accused is of total denial and he has accused the
would be husband of Pallavi. There is no mitigating
circumstance against accused.
335. There are 10 aggravating circumstances :
1) The accused has committed murder of the word
Security Guard.
Not only his duty being Security Guard to protect only
the building but also the lives of occupants. The
accused did not protect Pallavi. Instead of giving
protection and security, he attacked on the image,
prestige, chastity, sole and mercilessly killed her, when
she was fast asleep. It is the case of fence eating the
crops. He has not discharged his duty. All the society
suspected the integrity and safety from Security Guard
after this incident.
2) The accused has betrayed the confidence, faith and
trust of Pallavi. There was constant disturbance of
electric supply and therefore, Avik told Pallavi to call
Security Guard and electrician for electric repairs and
therefore, she called the accused. She was having faith
and therefore, she made calls to Security Guard. This
is not the mockery of justice but the public at large
would not trust their Security Guards, if lesser
punishment awarded.
3) The accused is guilty of two murders. The legally
charged for one murder of Pallavi and after death of
Pallavi, Avik died after giving evidence before Court.
Because of impact of this incident, Avik was under
shock. He was about to marry with Pallavi and
therefore, he died due to some neurological problem
because of said shock. Therefore, the accused is
responsible for his death.
4) Murder after previous plan.
The murder of Pallavi was after previous plan. The
accused was having evil eye on Pallavi but he was
desperately searching an opportunity to ravish Pallavi
and to enjoy her. The evidence of PW-22 Mohammed
Khalid Muneer Hussain Khan clears that the accused
asked to Pallavi on that night that whether Avik Sir is
there and he was aware that Avik will come on next day
morning. He had also made inquiry with PW-32 to
confirm that he is not coming again. Thereafter, the
accused entered in the flat with the help of duplicate
keys and knife. As he was having duplicate keys, he
was mentally prepared and it is the strongest
aggravating circumstance against the accused.
5) The incident is exceptionally cruel. The accused has
exercised maximum cruelty, while committing murder.
The postmortem notes proves that there are 16 injuries
on person of Pallavi, Her trecia was completely slit
and she was unable to speak. The injuries proves that
the act of accused was like butcher. The accused has
used halal system, while committing murder of Pallavi,
who was totally helpless. The blood trail from bed
room to the house of neighbour proves her
helplessness. Number of injuries on her person proves
that the position of Pallavi was worst than goat. It
proves that she must have prayed mercy to him.
6) The accused has enjoyed act of killing. He called
PW-10 on next day morning and told him that he killed
one item and he started laughing and cut the phone.
It proves that he enjoyed the killing. He laughed on
killing of young girl. It proves that he is the sadice
person, which gives him perverse pleasure in the pain
of others.
7) The accused has boasted before his friend that he
killed Pallavi. There was no rebendance after
committing crime, accused took pride by saying
PW-10 that ek item ne mujhe kam karne nahi diya, is
liye maine use mar dala. The accused has crossed all
the limits of shamelessness.
8) The accused has no values for young girls. As he
referred girls as item, it appears his dirty and
perverse sexual approach towards girls, which insult
the girls.
9) The accused went to the house of deceased to fulfill his
lust. He is like the sex starve person is of cruel nature
like a starve wolf in shape of human being.
10) The judicial conscious and society at large shocked
because of depravity and as the mitigating
circumstances are of 0% and there are the aggravating
circumstances against the accused. Hence, prayed for
death penalty.
336. As the death penalty is prayed by Learned SPP, Learned
counsel for accused Mr. Wahab Khan gave extensive reply to his
arguments. He has stated that the prosecution has mentioned
the age of accused 25 years, which is not correct. Exhibit-11 the
Plea of accused, Final Report, Arrest Panchanama, Disclosure
Panchanama, all these documents proves that he was 22 years of
age. At the time of committing murder, which is quite young age.
His date of birth is February 1992. He is from Kashmir. He came
from Kashmir to Mumbai in search of work, as there is
disturbance in Kashmir. The elder brother of accused is separated
after his marriage and and he is having younger brother and
sister, who is 13 years of age. He has to send money for them. He
studied upto 9
th
class. The family of accused is depending upon
him only. While considering the past conduct of the accused,
there was no complaint against him till his arrest. The
preparation for crime is not the case of prosecution, as the
accused had acted with sexual approach with another lady,
though he had opportunity to go alone, he took Khalid with him
at the house of Pallavi. As per PW-18, Injury No.2 of deceased
Pallavi was the fatal injury and all other injuries were not fatal.
Therefore, the injuries does not prove the cruelty.
337. The case is depend on circumstantial evidence.
Inferences are drown in this case. There is no direct evidence. It
is a imaginary story about cruelty. The accused was in the
disturbed state of mind. He wants to run away not intending to
violate any law. He was asking for money. In case of Bachan
Singh Vs. State of Punjab (1980) 2 S.C.C.684, it is held that -
the aggravating circumstances which in the
absence of any mitigating circumstances, have been
regarded as an indication for imposition of the extreme
penalty.
If there is aggravating circumstances and mitigating
circumstance is 0% then also, the death penalty is not proper. The
prosecution has to prove the rarest of rare case.
338. The prosecution has failed to prove the mitigating
circumstances, which is given in Bachan Singh Vs. State of
Punjab case. 3 and 4 are not proved. There is no antecedents
which favour the accused. There is no evidence brought on
record by the prosecution. The past of accused can be gathered
by his record before the incident. The accused is 22 years of age.
No adverse remarks from prison and all the prison reports are
clear. He has co-operated the trial till this date. The chances of
reformation are there. When the alternative option is open for
prosecution, the counsel for defence has relied on judgment of
Hon'ble Supreme Court reported in (2007) 12 SCC 230 in the
matter of Alok Nath Dutta and Others Vs. State of West Bangal,
in which it is held that -
There are some precedents of this Court e.g.
Sahdeo V. State of U.P. (SCC Para 9) ad Sk. Ishaque Vs.
State of Bihar, which are authorities for the proposition
that if the offence is proved by circumstantial evidence,
ordinarily death penalty should not be awarded. The
Court should follow the said precedents instead and,
thus, in place of awarding the death penalty, impose the
sentence of rigorous imprisonment for life as against
Aloke Nath. Furthermore, the Court do not find any
special reason for awarding death penalty which is
imperative.
339. The accused has given all the imaginary
circumstances. It is held by Supreme Court in the above cited
authority that when the circumstantial evidence is there, death
penalty should be avoided. The authority (2009) 6 SCC 498 in
the matter of Santosh Kumar Sthishbhushan Bariyar Vs. State
of Maharashtra etc., in which it is held that -
Another aspect of the rarest of rare doctrine which
needs serious consideration is interpretation of latter
part of the dictum (SCC p. 751. para 209) - [t]hat ought
not to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed
(emphasis supplied). Bachan Singh suggested selection
of death punishment as the penalty of last resort when ,
alternative punishment of life imprisonment will be
futile and served no purpose.
Death punishment, as will be discussed in detail a
little later, qualitatively stands on a very different
footing from other types of punishment. It is unique in
its total irrevocability. Incarceration,life or otherwise,
potentially serves more that one sentencing aims.
Deterrence, incapacitation, rehabilitation and
retribution-all ends are capable to be furthered in
different degrees, by calibrating this punishment in light
of the overarching penal policy. But the same does not
hold true for the death penalty. It is unique in its
absolute rejection of the potential of convict to
rehabilitate and reform. It extinguishes life and thereby
terminates the being, therefore, puts an end to anything
to do with the life. This is the big difference between the
two punishments. Before imposing death penalty,
therefore, it is imperative to consider the same.
The rarest of rare dictum, as discussed above, hints
at this difference between death punishment and the
alternative punishment of life imprisonment. The
relevant question here would be to determine whether
life imprisonment as a punishment will be pointless
and completely devoid of reason in the facts and
circumstances of the case ? As discussed above, life
imprisonment can be said to be completely futile, only
when the sentencing the second exception to the rarest
of rare doctrine, the court will have to provide clear
evidence as to why the convict is not fit for any kind of
reformatory and rehabilitation scheme. This analysis
can only be done with rigour when the court focuses on
the circumstances relating to the criminal, alongwith
other circumstances. This is not an easy conclusion to
be deciphered, but Bachan Singh sets the bar very high
by introduction of the rarest of rare doctrine.
The Court must also point out, in this
context, that there is no consensus in the Court on the
use of social necessity as a sole justification in death
punishment matters. The test which emanates from
Bachan Singh in clear terms is that the Courts must
engage in an analysis of aggravating and mitigating
circumstances with an open mind, relating both to
crime and the criminal, irrespective of the gravity of
nature of crime under consideration. A dispassionate
analysis, in the aforementioned counts, is a must. The
courts while adjudging on life and death must ensure
that rigour and fairness are given primacy over
sentiments and emotions.
340. The life imprisonment is more worst then death. Such
type of incidents are common. Only because the accused is
Security Guard, it cannot be aggravating circumstance of
accused. The possession of key is not aggravating circumstance,
Deterring confidence is not aggravating circumstance.
341. It is argued that the prosecution has averred an unique
and unheard argument about two murders. The death of Avik
Sengupta, there is not charge against accused. As deceased
called the accused and then he went there. There is no pre-
planning. Therefore, pre-planning is not aggravating
circumstance. The accused was having fear for law. He
demanded money to run away, it does not mean that he had
enjoyed killing of Pallavi. There is no history of his perverseness
of the accused in the society. The solitary isolated incident
cannot be condemned. There is no aggravating and
circumstantial proof against the accused.
342. The defence counsel has argued that this is not the
rarest rare case, hence, life imprisonment may by imposed.
343. While giving reply to the arguments of accused,
Learned SPP has stated that the judgments, which are produced
by accused are not applicable in this case. It is misjudging the
facts of record. The case of (1980) 2 SCC 684 of Hon'ble Supreme
Court is based on facts, which are judicially proved. The conduct
of accused assessable to prove his conduct. In Alok Nath's case,
the word 'ordinarily' is mentioned. It is not mentioned that
death penalty should not be awarded. Therefore, death
punishment can be given if it proves rarest of rare case in
circumstantial evidence also. The case of Santosh Kumar Bariyar
is a case of approver and is also not applicable.
344. Learned counsel for the accused has stated that
Article-141, ratio laid down by Hon'ble Apex Court are binding on
the lower courts.
Findings of the Court :
345. In view of law laid down in above said decisions of the
Apex Court, I would like to draw the balance sheet of aggravating
and mitigating circumstances and after giving maximum
weightage to the mitigating circumstances, I will arrive at the
decision of punishment.
346. While considering the balance sheet of the aggravating
and mitigating circumstances, the Court has to go to the facts of
the case.
Aggravating Facts :
1) The pre-planned manner -
Whether the accused has committed this offence with
pre-plainning. On the intervening night, the accused
was on duty. He received phone call from Pallavi and
he called the electrician. He took him up to 16
th
floor
and came back. At that time he did not go to the
house of deceased. Thereafter also, when at 1.00 a.m.
Deceased called him, he went with Khalid though the
opportunity was there for him to go alone. It appears
from the record that when accused saw Pallavi in
scanty clothes, he was sexually excited and it was the
point when he started thinking to ravish her. He went
with preparation to kill her but it cannot say that since
few days he was searching for opportunity and
disturbance of electricity was because of him.
Therefore, aggravating fact of pre-planning is not
there.
2) Betrayed faith and confidence :
The deceased called him being security guard. She
was having faith on him and therefore, she called him
at night. Only because one security guard has
committed this act, the public at large will not have
faith on their Security Guards and therefore, it can not
be aggravating circumstance against accused.
3) Extreme Cruelty :
There is cruelty in each murder. No murder can be
committed without cruelty. Here in this case, the
accused has committed murder of a young girl, who
was having her own identity as an advocate in society
to fulfill his lust is very unfortunate incident. 16
injuries were there on her person, which proves that
she struggled for her life very hard. She had injury on
her face tracia, back, chest, hands. The cause of
injuries was injury on tracia injury no.2. All other
injuries were not on vital parts but it cause her painful
death, which can be termed as cruelty but not
extreme cruelty.
4) Enjoyed act of killing :
Laughing after committing death of murder is
immediate reaction of accused. It is something
abnormal. After committing crime, he must have
frightened and has reacted like that. He went in the
flat of Pallavit to ravish her and as she was having
strong built, she has resisted him and he assaulted her
with knife. One cannot come to the conclusion that
he must have enjoyed her killing. He killed her till she
die, is a fact.
In present case thus, no aggravating factor is
proved against accused, which laid down in Macchi
Singh case.
347. There are 7 mitigating circumstances as per Bachan
Singh Case.
1) The age of accused if young and old : It is argued that
the accused was 25 years of age. But the documents
filed alongwith chargesheet shows that at the time of
incident, he was 22 years of age means, of quite young
age. Learned SPP has relied on the judgment of
Hon'ble Supreme Court reported in 1999 SCC (Cri.)
638 in the matter of Jai Kumar Vs. State of M.P. In
support of his arguments that plea of accused of young
man of 22 years not a mitigating factor. But it is clearly
stated in the case of Machhi Singh that if the accused is
of young age or old age, he cannot be hanged.
2) The next mitigating circumstance is if there is no
probability of committing criminal acts or violence, it
can be gathered only through his past record. The
accused came from Kashmir in search of work. He was
working there since 3 years. There are no criminal
complaints against accused about torturing girls.
Moreover, it is the burden on the state to prove
through the evidence that his past record was not good and
therefore, this point goes in favour of accused. As no antecedent
is brought on record, the chances of rehabilitation are there The
mitigating facts are in favour of accused.
348. The case is relied on circumstantial evidence. The
defence has brought to the notice to this Court that in case of
Bachan Singh, there is observation that -
Judges should never be bloodthirsty. Hanging of
murders has never been too good for them. Facts and figures,
albeit incomplete, furnished by the Union of India, show that
in the past, courts have inflicted the extreme penalty with
extreme infrequency a fact which attests to the caution and
compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a matter. It
is, therefore, imperative to voice the concern that Courts,
aided by the broad illustrative guidelines indicated by the
Court, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the
highroad of legislative policy outlined in Section 354(3) viz.
that for persons convicted of murder, life imprisonment is the
rule and death sentence an exception. A real and abiding
concern for the dignity of human life postulates resistance to
taking a life through law's instrumentality. That ought not
to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.
349. It is also held by Hon'ble Supreme Court in judgment
reported in (2007) 12 SCC 230 that -
There are some precedents of this Court e.g.
Sahdeo V. State of U.P. (SCC Para 9) ad Sk. Ishaque Vs.
State of Bihar, which are authorities for the proposition
that if the offence is proved by circumstantial evidence,
ordinarily death penalty should not be awarded. The
Court should follow the said precedents instead and,
thus, in place of awarding the death penalty, impose the
sentence of rigorous imprisonment for life.
Furthermore, the Court do not find any special reason
for awarding death penalty which is imperative.
350. The accused was migrating from Kashmir for the work
and he was only earning member in his family. The defence has
relied on the judgment of Hon'ble Supreme Court reported in
(2011) 11 SCC 564 in the matter of Kamleshwar Paswan Vs.
Union Territory of Chandigarh.
351. After going through the authorities cited and
arguments averred by both the parties, the balance sheet of
mitigating circumstance and aggravating circumstance is tilt
towards mitigating circumstance and no aggravating fact is
found, from which it proves that it does not come under the
rarest of rare case. Hence, the minimum punishment i.e.
rigorous imprisonment for life, which shall mean the remainder
of natural life of accused can be awarded. Hence, I proceed to
pass following order :
ORDER
(1) Accused Sajjad Ahmed Abdul Aziz Mugal @
Pathan is hereby convicted as per Section 235 (2) of the Code of
Criminal Procedure for the offences punishable under Sections
302, 354 and 449 of the Indian Penal Code, 1860 and under
Section 37(1)(a) read with 135 of Bombay Police Act, 1951.
(2) The accused is hereby convicted as per Section
235 (2) of the Code of Criminal Procedure for the offence
punishable under Section 302 of Indian Penal Code and he is
sentenced to suffer rigorous imprisonment for life, which shall
mean the imprisonment of remainder of his natural life.
sentenced to suffer rigorous imprisonment for five years
alongwith fine of Rs.3,000/- (Rupees Three Thousand Only) in
default, to suffer rigorous imprisonment for 6 months.
sentenced to suffer rigorous imprisonment for ten years and
fine of Rs.5,000/- (Rupees Five Thousand Only) in default, to
suffer rigorous imprisonment for 1 year.
punishable under Section 37(1)(a) read with 135 of Bombay
Police Act, 1951 and he is sentenced to suffer simple
imprisonment for one year with fine of Rs.5,000/- (Rupees Five
Thousand Only) in default, to suffer simple imprisonment for 2
months.
(6) All the substantive sentences of imprisonment of
accused to run concurrently.
(7) The accused has been under detention from
10.08.2012 i.e. for total period of 1 year 10 months 21 days during
investigation, inquiry and trial. Therefore, set off under Sec.428 of
the Code of Criminal Procedure to the extent of period of
detention undergone by him as mentioned above against the
term of imprisonment imposed on, is granted to the accused.
(8) Muddemal property viz. Article-1 One Gray
Colour Sports Bra, Article-2 One Short Pant of white colour,
Article-3(colly.) One Pair of Slipper, Article-4 One Carpet,
Article-5 One Blue Colour Sweater, Article-9 (Colly.) Four Labels
@ wrapper of bundle in which Art.3, 4 and 5 were kept, Article-11
(Colly.) One Black Colour Pant, One Black Colour T-Shirt and Belt,
Article-12 Chappel, Article-13 (colly.) Four labels @ wrapper of
bundle in which Art.11(Colly.) and Art.12 were kept, Article-14
One Knife having black grip, Article-24 (colly.) One Black Colour
Wallet, Article-24 (Colly.)A- Label on Article-24(colly) and
unmarked labels and wrappers if any, being worthless be
destroyed after appeal period is over.
(9) Muddemal Property viz. Article-6 Page No.244 of
Leave & License Agreement, Article-7 Xerox Copy of application
form of mobile no.9967889972, Article-8 Office copy of letter form
Crime Branch for calling subscriber details and call details of
mobile no. 7208719196, Article-15 Xerox copy of Prohibitory
Order, Article-16 Extract of Station Diary-Entry dtd. 17.7.2012,
Article-17 Xerox Copy of Forwarding Letter to C.A., Article-18
Xerox Copy of Forwarding Letter to C.A., Article-19 and Article-20
Two Forwarding letters to C.A. Dtd.13.8.2012, Article-21 Xerox
Copy of identification form of accused, Article-25 Two
Forwarding Letters dtd. 9.8.12 and 10.8.12, be kept in R&P.
(10) Valuable property viz. Article-22 One Black and
Red Colour mobile of Nokia Co., be sent for auction and the sale
proceed thereof be credited to the Government after appeal
period is over
(11) Muddemal Property viz. Article-10 (Colly.) Two
Keys, Article-10A Label on Art-10(Colly.), Article-10B Resealed
Label on Art.10(Colly.), Article-23 (colly.) ATM Card of Bank of
India, PAN Card, Article-24 (colly.) Identity Card of A.H.
Enterprises and Pass Book of Bank of India, be returned to DCB
CID, Unit VI, Mumbai after appeal period is over.
(12) Copy of Judgment be given to the accused free of
cost.
(V.V. Joshi)
Addl. Sessions Judge,
City Civil & Sessions Court,
Date : 07.07.14 Gr. Bombay.
Judg. Dictated on : 30/06/2014, 07/07/14
Transcribed on : 01/07/14 to 07/07/2014.
Signed on :

Pallavi Purkayastha Murder Case Judgement

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Pallavi Purkayastha Murder Case Judgement

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