Dismissed

Janaradhan Kokre., v. State (Collem Police Station) and Anr.

Bombay HC25 Jan 2019CRIA/36/2013

Case brief

AI extract

What is this about?

Appeal against conviction for murder and causing disappearance of evidence by dismembering the victim's body and burning the jeep. The court upheld the conviction, holding the circumstantial chain including last-seen-together, discovery under Section 27 and DNA evidence complete, rejected the challenge to trial by video conferencing, and cancelled the appellant's interim bail for breach of conditi

What did the court decide?

Appeal dismissed; appellant directed to surrender before the Sessions Judge to undergo sentence; request for continuation of interim bail refused.

Janaradhan Kokre., Vs State (Collem Police… — Murder and Culpable Homicide | Bombay HC (2019)

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IN THE HIGH COURT OF BOMBAY AT GOA.

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CRIMINAL APPEAL NO.36 OF 2013.

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Shri Janardhan Kokre, s/o late Vithu Kokre,

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age 40 years, r/o H.No.1183, Bhratwada, … Poira, Mayem – Goa. Appellant. (Presently lodged in Central Jail, Aguada)--

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Versus

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State (Collem Police Station), Sanguem Goa.

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… State through P.P. Respondents.

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Mr. S.D. Lotlikar, Senior Advocate with Mr. J.Karn, Advocate for the Appellant.

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Mr. Mahesh Amonkar, Additional Public Prosecutor for the Respondents.

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Coram : M.S.Sonak &

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Prithviraj K. Chavan, JJ. Reserved on : 10.01.2019. Pronounced on : 25.01.2019.

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Judgment (Per Prithviraj K. Chavan, J.):

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By this Appeal under Section 374 (2) of the Code of Criminal Procedure, the appellant challenges his conviction and sentence passed by the learned Sessions Judge, South Goa, under Sections 302 and 364 of

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the Indian Penal Code, for which he has been sentenced to undergo rigorous imprisonment for life and fine of Rs.20,000/- on each count, in default to suffer rigorous imprisonment for six months and also under Section 201 of the Indian Penal Code, by sentencing him to undergo rigorous imprisonment for seven years and fine of Rs.10,000/-, in default to undergo imprisonment for three months. The impugned judgment and order came to be passed by the learned Sessions Judge on 29.4.2013.

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Facts of the case, as emerged from the record, can be stated as follows:-

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On 9.4.2011, the appellant had taken Dilip Sadashiv Naik (since deceased), a mentally challenged person, resident of Brahmaneshwar Wada, Poira, Mayem, on his Bajaj Pulsar motorcycle bearing registration No.GA-03-F-1760 at about 11.00 hrs. Thereafter he took deceased Dilip in his Tata Spacio Jeep bearing Registration no.GA-04-C-0183 at various places and subsequently on 10.4.2011 at about 3.30 hrs. the appellant committed murder of Dilip by strangulation on the front seat of the said jeep by the roadside at Kone, Priol, Ponda. It is the case of the prosecution that the appellant lifted the body of the deceased, placed it over the middle seat of the jeep and thereafter severed his neck from head followed by severing of both the arms below the elbow level and the legs below the knee level by using a sharp edged weapon locally known as `sattur'.

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It is further alleged that the appellant had thrown the body parts of deceased Dilip on the left side of the Highway while travelling towards Ponda and had thrown the sattur on the right side of the road. He, thereafter, brought the headless body of deceased Dilip in the jeep at Barkattem, Mollem and parked it on the Katcha road to the right of the Highway and thereafter set his jeep ablaze with the body of the victim inside with an intention to destroy the evidence. The appellant thereafter absconded from the scene of offence after commission of the crime, his motive being to prove that he had expired a homicidal death and to avail the benefits from 19 Life Insurance Corporation Policies obtained by him shortly before committing the offence and also to rid himself of the family of Mayekar from Moira, Aldona, from whom he had fraudulently taken Rs.12,00,000/- after promising a job of a lady Police Sub Inspector in the Police Department to one Ms.Vinita Mayekar.

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It is the case of prosecution that skull of the deceased was discovered by the Ponda Police on 6.5.2011 from the place where the appellant had thrown it after the murder. It was confirmed from the DNA Report that the human skull and the headless dead body belonged to victim Dilip. The weapon of offence i.e. Sattur, Bajaj Pulsar motorcycle and 19 LIC Policies in the name of the appellant including 32 Sports Qualification Certificates of Ms.Vinita Mayekar were recovered at the instance of the appellant during the course of investigation.

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PW1 Akbar Ali Khan, Head Constable, attached to Collem Police Station, received an unknown phone-call on 10.4.2011 around 7.25 hrs. informing him that one Tata Spacio jeep referred hereinabove had caught fire at Barkottem, Mollem. After making a Station Diary Entry, PW1 Akbar Ali Khan proceeded to the spot and registered a Fire Accident No.3/2011. He contacted the Fire Brigade, Ponda and also informed the concerned Police Inspector of Police Station, Collem.

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PW35 Manoj Mardolkar conducted investigation into the crime. After registration of the First Information Report bearing No.10/2011 by PW1 Akbar Ali Khan, PW35 Manoj Mardolkar conducted a thorough search of the said jeep and found an unidentified, charred body of a male lying in the middle seat of the jeep and the driver's side door of the jeep was left open. He also noticed a `Chavi' brand matchbox lying behind the said jeep on the katcha road. In the presence of two panch witnesses, namely PW33 Janu Suzare and CW3 R. Gaonkar, a scene of offence panchanama alongwith the sketch was drawn, which is proved at Ex.97. He drew inquest panchanama (Ex.24). The Investigating Officer had also pressed into service a dog squad with their handlers. He had also summoned the Finger Prints Expert namely Rajkrishnan, however, no chance prints could be obtained from the spot. The Investigating Officer had also arranged for a Police Photographer namely PW8 Vassudev Pednekar, who took the photographs of the of the scene, which are at Ex. 46 collectively. The body of the deceased was so charred that it was difficult to recognize or to identify it as even the upper and the lower

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extremities were missing. After registering an offence under Sections 302 and 201 of the Indian Penal Code against unknown person, the Investigating Officer had written a letter to the Executive Engineer, P.W.D. Ponda, to depute a Civil Draughtsman to draw a sketch of Scene of Crime.

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The charred body was sent for postmortem at the GMC. PW31 Dr. Madhu Ghodkirekar conducted the postmortem. During the course of postmortem, one Raju Kokre and his brother-in-law Dhaktu Dahiphode claimed the unidentified body to be that of Janardhan Kokre (Appellant), as it was found in the jeep belonging to the appellant, who had left his house by saying that he was going to Belgaum and will not be available at his residence till then. The Investigating Officer obtained the blood samples of Jani and the brother of Jani Kokre for the purpose of DNA. He had also obtained call details of the mobile no.9011844398 of the appellant, from the office of the S.D.P.O. Ponda. Dr. Madhu Ghodkirekar (PW 31) had obtained biological samples of Raju and Jani Kokre for DNA comparison vis-a-vis the charred remains, based on a letter dated 12.4.2011 addressed by the Investigating Officer to the doctor.

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The Investigating Officer during investigation noticed that the deceased was in a close relation with PW5 Maya Mayenkar and, therefore, he visited the family of Maya Mayenkar, who confirmed that they were close friends. It is also revealed that the appellant had taken Rs.12,00,000/- on the pretext that he would secure a job of a lady Police

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Sub Inspector for the daughter of PW5 Maya Mayenkar. The Investigating Officer recorded the statements of all the concerned witnesses. The biological samples were sent for chemical analysis to the Central Forensic Science Laboratory (CFSL), Hyderabad. On 26.10.2011, the Investigating Officer had received DNA report from CFSL, Hyderabad, confirming that DNA profile from the charred body and materials from the Ponda Police Station, as also those recovered under the scene of offence panchanama were of the same human male origin and is proved at Ex.124.

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On 23.6.2011 PW9 Devendra Gad, Police Inspector, telephonically informed this witness that one Janardhan Kokre (Appellant) was found in an unconscious state on Mandovi bridge, who had been admitted in G.M.C. Hospital, Bambolim. His identity was confirmed by his wife Jyoti Kokre and his brother Raju Kokre, who met the appellant in the hospital in the presence of this witness. The appellant was duly arrested by this witness in this crime after conducting his medical examination. The CFSL and DNA reports confirmed that the headless charred body found at Barkottem and the human skull with the lower jaw found at Priol was of the deceased Dilip Naik. The Investigating Officer had also collected documents proving the ownership of the appellant in respect of the motorcycle bearing registration no. GA-03-F-1760 and Tata Spacio Jeep bearing registration no.GA-04-C-0183. He had also recovered the weapon of offence at the instance of the appellant, in view of his

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voluntary statement made while in the police custody. The said weapon i.e. sattur was found during a thorough search near the foot of the hillock and close to an Electric Pole no.A/189 by the right side of the road at a distance of about 100 to 150 mtrs., from where the body parts were purportedly thrown by the appellant.

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After the investigation, the Investigating Officer had laid a charge-sheet against the appellant under Sections 363, 364, 302 and 201 of the Indian Penal Code and Section 27 of the Arms Act in the Court of the learned Judicial Magistrate First Class, Sanguem. After committal of the case to the Sessions Court, the learned Sessions Judge after hearing the prosecution and the defence, found that there was adequate material on record to frame a charge against the appellant and, therefore, framed charge against him under Sections 363, 364, 302 and 201 of the Indian Penal Code and Section 27 of the Arms Act by order dated 13.8.2012. It was read over and explained to the accused, to which he pleaded not guilty and claimed a trial. His defence was of total denial of the commission of the offence alleged and false implication in the case. No defence evidence has been adduced on his behalf.

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The prosecution examined as many as 35 witnesses in order to substantiate the charge against the appellant. The learned Sessions Judge, after going through the entire evidence on record and after hearing the prosecution and defence, by the impugned judgment and order convicted and sentenced the appellant as above. The learned Sessions Judge in the

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impugned judgment held that the prosecution by its cogent evidence established the entire chain of circumstantial evidence right from the fact that the appellant was last seen together with the deceased and had fabricated false evidence to show that the charred dead body recovered was of him (appellant). It is further observed by the learned Sessions Judge that the prosecution has also established, from DNA reports that dead body was that of deceased Dilip who was done to death by the appellant by severing his arms and legs as well as head and then setting the jeep on fire. The learned Sessions Judge found that motive beyond the offence was to gain monetary benefits from 19 LIC policies obtained by the appellant from which his family would be benefited. It is also held that the appellant did not intend to return Rs.12,00,000/- which was paid to him by PW5 Maya Mayenkar for securing a job of lady Police SubInspector to her daughter.

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We have heard Shri Lotlikar, learned Senior Counsel appearing for the appellant and Mr. Amonkar, learned Additional Public Prosecutor for the respondents.

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The main thrust of the learned Senior Counsel while assailing the impugned judgment is that the learned Sessions Judge has failed to appreciate the fact that the entire trial has been vitiated, because it was conducted through video conferencing wherein there was no opportunity to the appellant, during the course of the trial to give proper instructions to the defence counsel. The appellant was in an immobile state, however,

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he could have been brought to the trial Court on a wheel chair. As such, according to the learned Senior Counsel, there was no justifiable reason to conduct the trial through video conferencing. It is submitted that the observations made in the record of the trial Court, while the witnesses were deposing to give an impression that the trial has taken place in an open Court and the witnesses have identified the accused on the monitor of the video conferencing room, whether or not the accused could see the witnesses or his counsel while the trial was going on, is not clear from the record of the Trial Court. As such, the manner in which the trial was conducted had caused prejudice to the accused in the matter of his defence. The learned Senior Counsel has placed reliance on the judgment of the Hon'ble Supreme Court reported in State of Maharashtra Vs. Dr. Praful B.Desai¹ .

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It is further contended by the learned Senior Counsel that the prosecution has failed to prove the genesis of the alleged incident. The prosecution has also failed to establish all the circumstances, which could be said to weave a chain around the accused from which there was no escape for him at all. It is submitted that there are several missing links in the chain of the circumstances, thereby rendering it unsafe to conclude that the guilt of the accused is proved beyond reasonable doubt. It is argued by the learned Senior Counsel that, if the accused intended to murder deceased Dilip and pass of his dead body as his own, he would have taken particular care to see that none saw Dilip in his company so as

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1 2003 (4) SCC 601

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to give an impression that he was almost travelling alone in the jeep.

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As far as the benefit alleged to have been derived by the appellant under the insurance policies by passing of the dead body of Dilip as his own and to avoid liability of repaying the money allegedly borrowed from Mrs. Mayenkar, it is submitted that this is also flimsy. It is for the reason that total value of the insurance policies was around eight and half lakhs of rupees. The learned Senior Counsel submits that it is intrinsically unbelievable that anyone would resort to such a heinous crime, firstly, in view of the fact that the appellant had to burn his own vehicle worth several lakhs of rupees for bringing about this result. Secondly, he must be considered as an absolute duller to believe that by merely burning a body one could avoid its identification. Thirdly, because the prosecution has failed to show that the accused was in the desperate financial condition and fourthly, because the accused was a family man with a wife and two minor children. The learned Senior Counsel in the written submission has elaborately quoted the part of the evidence as well as the portion from the impugned judgment in order to substantiate his point and, therefore, submitted that the appellant is entitled to benefit of doubt.

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On the other hand, the learned Additional Public Prosecutor has supported the impugned judgment and the order of conviction in support of which a brief synopsis has been tendered on record. In short, it is submitted by the learned Additional Public Prosecutor that the prosecution has established all the circumstances by means of a complete

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chain, wherein it has been proved that the appellant and the deceased were last seen together by, as many as nine witnesses namely PW13 Ami Salgaonkar, PW14 Sandip Salgaonkar,, PW15 Vidhaydhar Haldankar, PW17 Swapnil Shirgaonkar, PW18 Siddesh Vaigankar, PW21 Tigababd Barvejar, PW25 Sanjay Chari and PW 30 Anand Parmekar. The disclosure panchanama under Section 27 of the Evidence Act, has been established through PW22 Hassan Patel, PW23 Mukund Pai, PW24 Devidas Gaonkar, PW26 Ashok Pednekar and PW34 Dinanath Gaonkar. There is DNA profile proved by PW 12 Sanjay Dalvi, PW 31 Dr. Madhu Ghodkirekar and PW 35 Manoj Mardolkar. The body of the deceased was found in the jeep of the appellant and the appellant absconded immediately after the incident. The learned Additional Public Prosecutor has also drew our attention to the 19 LIC policies obtained by the appellant, which also substantiated the fact of his intention to create evidence that he had died and that his family would be benefited of the said policies. The learned Additional Public Prosecutor, therefore, supported the impugned judgment and order of conviction.

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The prosecution case revolves around the following circumstantial evidence:-

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(i) The deceased was last seen together with the appellant.

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(ii) The disclosure evidence under Section 27 of the evidence Act as well as DNA reports confirming that the charred dead body was of deceased Dilip.

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(iii) The said charred/burnt body of the deceased was found in the jeep of the appellant. (iv) The appellant absconded immediately after the incident. (v) The appellant created false evidence of his death so that his family would be benefited monetarily from the 19 LIC policies.

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Indubitably, deceased Dilip died a homicidal death who's charred limbless body was found in the Tata Spacio Jeep of the appellant bearing no. GA-04-C-0813(for short “Jeep”). The evidence of PW31 Dr. Madhu Ghodkirekar reveals that on 11.4.2011, he conducted autopsy over the totally burnt dead body of a male person which was beyond the state of identification in connection with the Crime No.10/2011 under Sections 302, 201 IPC produced alongwith police report which is proved at Exh. 88 colly. According to PW31 Dr. Madhu Ghodkirekar, the brother of the appellant namely Raju Kokre came to identify the said body as it was found burnt in the jeep of the appellant. However, according to said Raju Kokre, a plate was implanted in his brother's hand due to a fracture. However, since the body was headless as well without upper and lower limbs, his identity could not be ascertained at that moment. It is testified by this witness that since he did not find any sign of soot in the lower aspect of the trachea to suggest that the burns were of ante-mortem. As regards internal examination of the deceased, it is testified by PW31 Dr. Madhu Ghodkirekar, thus:-

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“The internal examination conducted by me revealed that the skull alongwith the first three cervical vertebrae

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were missing whereas the rest of the cervical vertebrae were present with the trunk of the body. The thoracic portion of the trachea was present in the chest with no soot in the distal broncheoles. There were extreme burns present all over the chest with exposing rib cage. The organs inside the chest cavity were intact but with toasting effect for the lungs and heart. There was no blood present in the heart chambers. Similarly extreme burns were present for the abdominal wall but the organs in the abdominal cavity were intact but with the toasting effect. No opinion was given by me regarding the cause of death, as the dead body was in a highly burnt and charred condition with missing of the entire head above the third cervical vertebrae level, both the forearms below the elbow and both the legs below the knee level were missing.”

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PW31 thereafter forwarded the viscera to Police Station Collem alongwith forwarding note in a sealed condition. He had also forwarded the portion of right radio-ulna bone, the pieces of heart for DNA profile and rest of the portion of viscera was preserved for chemical analysis which was also handed over to the police.

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On the following date PW31 Dr. Madhu Ghodkirekar collected the blood samples of Raju Kokre and Smt. Jani wife of Vithu Kokre who was biological mother of the appellant Janardhan Kokre. The same were forwarded to CSFL, Hyderabad for DNA analysis.

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Investigating Officer, PW35 Manoj Mardolkar, testified that on 11.4.2011 he had visited GMC hospital to attend the postmortem which

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was conducted by PW31 Dr. Madhu Ghodkirekar. The biological samples of Raju and Jani Kokre collected by PW31 Dr. Madhu Ghodkirekar vis-a-vis the remains of the charred body were handed over to PW35 Manoj Mardolkar and forwarded to CSFL Hyderabad.

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Since PW35 Manoj Mardolkar received an information on 28.4.2011 that one more person who is the brother of Anand Naik was missing from 9.4.2011, who was seen moving in the company of the missing owner of the Tata Spacio Jeep, this witness visited Poira, contacted PW4 Anand Naik brother of the deceased who disclosed that Dilip was mentally challenged and was missing since 9.4.2011. Dilip was seen by the villagers moving in the company of the missing owner of the Tata Spacio Jeep. This witness, therefore, addressed a letter to the Police Inspector, Ponda on 8.5.2011 requesting him to collect blood samples of relatives of the missing Dilip Naik for biological samples and for the purpose of comparison with the unknown person charred body. Accordingly, biological samples of Anand Naik PW4, Savita Gajinkar, CW63 were collected by the doctor at GMC. According to this witness from the DNA reports which he had received from CSFL Hyderabad confirmed that DNA profile from the charred body and the material from the Police station Ponda recovered under scene of offence panchanama were of same human male origin which is proved at Exh.124. Similarly DNA reports received from CSFL Hyderabad vide No.13/CFSL(H) /EE/2011/17323 dated 15.10.2011 confirmed the fact that the material

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from the Ponda Police Station tallied with that of Savita (CW63) and Anand Naik (PW4) which is proved at Exh.125. This CSFL DNA reports confirmed that headless charred body found at Barkattem and the human skull with the lower jaw found at Priol was of deceased Dilip Naik and not of the appellant.

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There is no reason to disbelieve the testimony of PW31 Dr. Madhu Ghodkirekar and PW35 Manoj Mardolkar as nothing has been elicited from their cross examinations which would render their testimonies unbelievable. The learned Sessions Judge has thus categorically held that it was the dead body of the deceased Dilip who died a homicidal death.

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The next important aspect would be “last seen together theory”. The law is well settled by Hon'ble Supreme Court in case of Sharad Birdhichand Sarda Vs State of Maharashtra,² The golden principles culled out based on circumstantial evidence can be enumerated as follows:-

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“1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

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The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

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The circumstances should be of a conclusive nature and tendency.

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They should exclude every possible hypothesis except the one to be proved.

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2 (1984) 4 SCC 116.

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There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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It would, therefore, be essential to scrutinize the evidence adduced by the prosecution in view of the aforesaid principles.

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In order to establish the last seen together theory the prosecution examined as many as 8 witnesses.

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PW13 Ami Salgaonkar is a sweeper by occupation who resides at village Poira alongwith her husband, children, brothers-in-law with their wives and their children. She is a sweeper by profession working in Chowgules company. She alongwith one Sunita do the cleaning work near Brahmaneshwar. She also does the work of cleaning of the road in the vicinity of the said temple. She knows the appellant being from the same area. She also knew deceased Dilip who also hailed from the same village. PW13 Ami Salgaonkar has categorically testified that on 9.4.2011 she saw deceased Dilip attending the temple who took the holy water and thereafter around 11.00 hours she saw him going on the motorcycle driven by the appellant. She also testified that deceased Dilip was mentally unsound and was a bachelor. He used to reside alone in his house at Poira while his other family members used to stay away in their respective houses. Subsequently, she learnt from the local news paper and

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television that the vehicle of the appellant was burnt and that Dilip was burnt in the jeep of the appellant.

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PW14 Sandip Salgaonkar also knows the appellant as well as deceased Dilip as he is a resident of village Poira. It is also his evidence that Dilip was not mentally sound and was a bachelor. He had seen deceased Dilip on 9.11.2011 between 11.00 to 11.30 hours while he (witness) was traveling as a pillion on the motorcycle driven by his friend Kiran Haldankar while proceeding to Mayem. He had seen the deceased Dilip on the motorcycle driven by the appellant when they reached near Konkan railway bridge at Poira where Kiran Haldankar and this witness overtook the appellant and deceased Dilip. He had testified about the registration number of the motorcycle of the appellant bearing No.GA03-F-1760. The appellant was wearing white T-shirt while deceased Dilip was wearing reddish T-shirt. According to this witness the appellant was known in the locality as wayward person. During cross examination, PW14 admits that he had some differences with the appellant during childhood when the appellant was residing in their house as a paying guest and used to assault them with a nanchaku. This itself is not sufficient to disbelieve the evidence of PW14 which finds corroboration in material particulars not only from the testimony of PW13 Ami Salgaonkar but also from the other prosecution witnesses.

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The next witness is Vidhyadhar Haldankar PW15, who also spoke

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in tune with earlier two witnesses. According to PW15 Vidhyadhar he also knew the deceased and the appellant as he is a resident of Poira. He had witnessed the appellant and deceased Dilip on 9.4.2011 between 11.00 to 11.30 hours while he was standing near the telephone exchange alongwith his colleague namely Rajendra Naik. He had noticed the appellant riding his motorcycle bearing no.GA-03-F-1760 and deceased Dilip on the pillion who were proceedings towards Chowgule dispensary.

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Swapnil Sirgaonkar, PW17 testified that he was working as a driver for the appellant. He drove the Trax Jeep of the appellant for three months which was engaged at Chowgule Mines. He is also a resident of at Poira since last eight years. He too testified in an unequivocal terms that on 9.4.2011 when he was contacted on mobile by the appellant asking him to come to his residence at about 2.30 hours, he saw the appellant in his Tata Spacio Jeep on the driver's seat which was parked in front of his house. The appellant told him that he was going to Belgaum. There was one more person with him sitting by the side. The witness testified that he could not see the other person since the glasses were drawn up, besides, they were tinted. According to this witness the appellant asked him to take his personal motorcycle from the service centre at Bordem and to keep it in his house. These instructions were given by the appellant to the witness at about 16.30 hours or so. The testimony of PW17 Swapnil Sirgaonkar could not be rebutted in cross except a minor omission which is quite natural. The witness had not stated before the police that the

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glasses of the jeep were tinted. However, the truthfulness of his testimony can be seen from the fact that though he knew deceased Dilip he did not say that he witnessed the appellant alongwith Dilip in the jeep, which otherwise he could have spoken had he been a tutored witness.

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Siddesh Vaigankar PW18 knows the appellant since his childhood as he too hails from Poira; so also he knew deceased Dilip who was mentally challenged and a resident of same locality. According to this witness he had seen the deceased and the appellant on 9.4.2011 between 2.30 hours and 15.30 hours while he was at the Sanquelim Petrol Pump with his motorbike and was waiting for his friend. He noticed the appellant driving his Tata Spacio Jeep bearing no. GA-04-C-0183 towards Honda alongwith deceased Dilip who was sitting by his side. He could recognize both of them since the jeep had slowed down on account of a speed breaker where this witness was waiting for his friend. During cross examination by defence it has been substantiated that he could see the appellant and the deceased through the wind screen as side glasses were rolled up.

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PW25 Sanjay Chari is an owner of a Garage at Chari Automobiles situated at Goankarwada Bicholim. He has been visiting village Poira as there were some relations. He knew deceased Dilip who was mentally challenged. He knows the appellant also. The appellant used to bring his Tata Spacio Jeep bearing registration no. GA-04-C-0183 to the garage of

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this witness, some times for repairs. This witness had also seen the appellant lastly on 9.4.2011 around 15.00 to 15.30 hours when he had been to Sanquelim to purchase spare parts in the shop of one Satoskar. He saw the appellant driving the jeep with deceased Dilip by his side who were proceeding towards Honda. In cross examination it has been elicited from the mouth of this witness that since the glasses of the jeep were tinted he could see the appellant and the deceased from the wind screen. He could see them when he was standing at the Titto(Junction) since Satoskar was closed. He could see the appellant and the deceased Dilip barely from a distance of 10 mts as the jeep was proceeding towards Honda. The cross examination also reveals that he had seen the appellant and the deceased together on the earlier occasions before 9.4.2011 also. Except this there is nothing in cross examination of PW25 Sanjay Chari which would render his testimony unworthy of credit.

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The last witness who had seen the appellant and the deceased Dilip together is PW30 Anand Parmekar who runs a service station at main Bicholim road under the name and style “Swatesh Serving Centre.” He knows the appellant who used to bring his Tata Spacio Jeep for washing at his service station. The appellant had visited his service station on 9.4.2011 who had brought his personal motorcycle. There was one male pillion alongwith the appellant. The appellant had collected Tata Spacio Jeep which he had earlier kept at his Service station for washing. He went away with the jeep alongwith the pillion by keeping his

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personal motorcycle behind. Testimony of this witness corroborates the testimony of PW17 Swapnil Sirgaonkar, driver of the appellant. As already stated the appellant had asked PW17 Swapnil Sirgaonkar to collect his personal motorcycle from the service centre at Bordem.

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After meticulously going through the evidence of all the aforesaid witnesses, we found them to be consistent as regards the time, place and the manner in which the appellant and the deceased were last seen together on 9.4.2011. Most of the witnesses hereinabove have categorically testified that glasses of the windows were not only tinted but rolled up which itself indicates that appellant had taken precaution to conceal the presence of deceased in his jeep. This fact falsifies the argument of defence that appellant could not have openly taken the deceased with him, had there been some ill intention.

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It is not the defence of the appellant that all of them are either interested witnesses or had any axe to grind against the appellant. The evidence of all these witnesses corroborated each other in material particulars and in the absence of any rebuttal, there is no reason to disbelieve their versions. The learned Session Judge in the impugned judgment has therefore, correctly appreciated and accepted the testimonies of these witnesses on the point of last seen together. In the case of Khomu Kasar Bahadur Raul and another Vs. State and another³ . Supreme Court, while dealing with the aspect of last seen 3 2017 DLGS (Bom) 959)

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together, observed that if a person was last seen with the deceased, he must offer an explanation as to how and when he parted company. The explanation must appear to the Court to be probable and satisfactorily. If he does so, he must be held to have discharged his burden. But if he fails to offer explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him under Section 106 of the Indian Evidence Act. Admittedly, neither there is any explanation tendered by the appellant in his statement under Section 313 Cr.P.C. nor any defence evidence has been adduced as to how and when he parted from the company of deceased. There is nothing to suggest there was an intervention of a third person. Moreso, none of the witnesses on last seen together aspect spoke about the presence of any other person in the jeep.

¶99

The appellant during his statement under Section 313 Cr.P.C., to the following questions simply answered “I do not Know”. He had not denied the facts emerged in the evidence of the aforesaid witnesses. It is not his contention that it was a false evidence given by the witnesses. Thus, he failed to discharge the burden under Section 106 of the Indian Evidence Act.

¶100

“Q.61. It is further in her evidence that she knew Dilip, since deceased, whom she saw on 9.4.2011 when he came to the Temple and later around 11.00 hrs going with you on your motorcycle. What do you have to say?

¶101

Ans. I do not know.

¶102

Q.63. It is in the evidence Sandeep PW14 that he had seen Dilip Since deceased, on 9.4.2011 between 11.00- 11.30

¶103

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hrs. as a pillion on the motorcycle driven by you near the Konkan Railway Bridge at Poira while he was travelling as a pillion on the motorcycle of his friend Kiran. What do you have to say?

¶105

Ans. I do not know.

¶106

Q.64. It is further in his evidence that you were riding the Pulsar motorcycle bearing registration no.GA-03-F-1760 and wearing a white T-shirt while Dilip was wearing a reddish T-shirt. What do you have to say?

¶107

Ans. I do not know.

¶108

Q68. It is in the evidence of Swapnil Pw17 that he drove your Trax jeep for abut 3 months on the Chowgule Mines and learnt that your Sumo Jeep was burnt in a fire at Barkattem, Mollem, What do you h ave to say?

¶109

Ans. I do not know.

¶110

Q.73. It is further in his evidence that he recognized the 2 of you as the jeep had slowed down on account of the speed breakers. What do you have to say?

¶111

Ans. I do not know.”

¶112

The appellant did not say that it was false but answered that `he does not know'. As such, he failed to discharge the burden cast upon him under Section 106 of the Indian Evidence Act.

¶113

The appellant had not made any issue of his burnt Tata Spacio Jeep at Barkattem, Mollem. It can be said to be one more circumstance in the chain of events since the deceased Dilip was last seen together in the company of the appellant while travelling in a Tata Spacio Jeep on 9.4.2011. Nothing was heard of deceased again till the identity of the

¶114

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charred and headless body was established to be of his. It was, therefore, for the appellant to show at what point of time the deceased parted ways with him from 9.4.2011 to disprove the prosecution case on the last seen together theory. Besides, it is in normal human conduct of a person of ordinary prudence to make grievance when his vehicle was set on fire. The family members of the appellant did not pursue the matter with the police in respect of the burnt jeep at Barkattem,Mollem when nothing was heard of the appellant, assuming to be highest that the appellant had no role to play in taking away deceased Dilip and dismembering his body and setting it on fire. On that front also, the defence plea does not inspire confidence. Family members of the appellant too had not claimed the body assumed at that time to be of the appellant for performing final rites. The conduct of the family members of the appellant is quite unnatural and echoes the prosecution case that they did have knowledge that it was not the body of the appellant, more particularly when they did not choose to lodge any missing report on his absence.

¶116

The next important circumstance is abscondance of the appellant immediately after the incident about which there is evidence of PW9 PI Devendra Gad. An information was received on 23.6.2011 that one person was lying on a Mandovi Bridge. PW9 Devendra Gad instructed PW10 PSI Dinesh Gadekar to shift the said person to the GMC hospital at Bambolim and went to hospital on the same evening at about 17.05 hours to find out his identity, confirm his position to make a statement

¶117

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and to record it accordingly. He was an unknown male person admitted in ward No.142, whose fitness to make a statement was confirmed by him through the doctor and then went to said person and questioned and confirmed his identity as Janardhan Kokre, r/o Poira. PW9 Devendra Gad recalled that an offence was earlier registered at Collem Police Station vide crime no. 10/2011 under Section 302 of IPC and that he was `wanted' in the said crime. Thereafter, PW35 Manoj Mardolkar went to the hospital as he was investigating this crime. It is pertinent to note that the appellant had ample opportunity to explain his presence on the bridge or he could have inquired with the police to find out as to how he was on the bridge and who carried him to the hospital. Be that as it may, this definitely is not the burden on the prosecution to be discharged as none other, but the appellant, could have clarified as to how he came to the Mandovi Bridge and where he was from 9.4.2011 till 23.6.2011. It was equally true that the appellant also should have explained about the deceased from 9.4.2011 onward. It is not the case of the defence that the appellant was not in a fit state of mind to make a statement as it is evident from the evidence of PW9 Devendra Gad that he had confirmed from the doctor on duty that the appellant was fit to make a statement. If the appellant could disclose his name and particulars he could have given other details about the missing of the deceased Dilip as well as his whereabouts in the intervening period.

¶119

It is evident from the testimony of PW10 Dinesh Gadekar that

¶120

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when he rushed to the spot after getting the information that one person was lying on the Mandovi bridge, he had not found any members of the public available on the bridge near the appellant nor he found the hands and the feet of the appellant tied with cloth or rope. For that reason, he did not accompany appellant in the ambulance to the hospital. This evidence of PW10 Dinesh Gadekar went unrebutted. First hand account given by this witness about the appellant totally falsifies the defence plea that he was bundled and thrown on the bridge by some unknown person and that he had no role in the present crime. It sounds incredible that in a moving traffic someone would bundle and throw the appellant on the bridge without getting noticed. Appellant could have, at least, described so called “unknown persons” alleged to have thrown him on the bridge. Falsity of defence is, thus, apparent. Thus, the prosecution has also established the important circumstance in the chain of circumstances that the appellant, just after the incident, absconded from the spot.

¶122

PW4 Anand Naik, brother of the deceased Dilip testified that Dilip was residing alone in the ancestral house at Poira. He used to visit him every alternate day and on week ends, since Dilip was mentally challenged for last 16 years. PW4 Anand Naik testified that he used to take Dilip for regular treatment at IPHB Bambolim, though Dilip on his own used to go to the house of his maternal aunt at Calangute on his bicycle. When Dilip was not seen after 9.4.2011, this witness thought that he might have visited his maternal aunt at Calangute. He had waited for 8 days

¶123

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¶124

expecting his return and thereafter telephoned his aunt who told him that he had not come to her house. Thereupon, he lodged a missing report at Exh.38. Exh. 49 colly is the records of the Institute of Psychiatry and Human Behaviour ( for short “IPHB”) which confirms the fact of history of abnormal behaviour of the deceased who was under psychiatric treatment on regular basis. This is because the appellant was also fully aware about the mental state of deceased and, therefore, he was an easy prey for him to create false evidence of his death(appellant).

¶125

Fabricating false evidence or creating false evidence of his( appellant) death so that family will be monetarily benefited from the 19 LIC policies as well as to escape the liability of Rs.12,00,000/- which was paid to the appellant by PW5 Maya Mayenkar to secure a job of lady Police Sub Inspector to her daughter is the motive behind the commission of the offence.

¶126

PW5 Maya Mayenkar works as a peon/sweeper in HDFC Bank Mapusa. The appellant used to visit her regularly and had good relations even with her children. Her evidence indicates that on 9.4.2011 at 12.30 hours her daughter Vinita phoned her at her work's place and told her that the appellant had come to home and told her that he wanted to take her to meet a person who had promised to give her a job of a Police Sub Inspector. PW5 Maya Mayenkar contacted the appellant on his mobile on the same evening at around 17.30 hours to inquire about the job of

¶127

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her daughter Vinita. The appellant told her that he was on the way to Margao with his customer on Tata Sumo jeep and likely to go to Belgaum. PW5 Maya Mayekar deposed that she had earlier given cash of Rs.12,00,000/- lakhs in two instalments i.e Rs.11,00,000/- in October 2010 and Rs.1,00,000/- in February 2011. However, her daughter Vinita did not receive any offer of appointment as promised by the appellant despite parting with such amount. PW5 Maya Mayenkar, testified that on 10.4.2011 around 19.30 hours, Raju Kokre, brother of the appellant came to her house and told her that appellant had died at Mollem. The appellant had not returned the cash of Rs.12,00,000/- to this witness. Her son Vijendra Mayenkar lodged a report against the appellant at Mapusa Police Station in the month of November 2011 on learning from the news paper that the appellant was alive. There is no effective cross examination of this witness. However, in the cross examination it has come on record that the amount of Rs.12,00,000/- was partly arranged by her son from his friend, partly by this witness by pledging gold and borrowing from friends. Cash was given to the appellant in good faith and there was nothing in writing. Thus, there is no reason to disbelieve the testimony of PW5 Maya Mayenkar as to how she was duped by the appellant to the tune of Rs. 12,00,000/- by giving false promise to offer a job of lady Police Sub Inspector to her daughter Vinita. There is no reason to disbelieve the testimony of PW5 Maya Mayenkar for not disclosing of parting with such a huge amount to the appellant till 15.11.2011 as the last payment was made to the appellant

¶129

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in the month of February 2011 and then he was reported dead on 10.4.2011. It was only when the witness came to know about the fact that the appellant was alive, a complaint came to be lodged against him.

¶131

PW6 Vijendra corroborated the testimony of PW5 Maya Mayenkar. He identified the appellant who used to visit their house on regular basis. He testified that his sister was a graduate, a sportswoman, excellent in Judo, Football, Cricket etc to whom the appellant assured employment as a lady Police Sub Inspector in police department due to his close contacts in the Home Department. He corroborated the evidence of Maya Mayenkar about payment of Rs.12,00,000/- to the appellant by taking a loan, mortgaging the house documents, gold loan, borrowed from friends and encashing the fixed deposits. He had also handed over certificates of his sister i.e graduation certificate and sports certificates to the appellant, but no job placement nor appointment letter was issued to his sister despite parting with such a huge amount to the appellant. The appellant had not returned the amount of Rs.12,00,000/- either to this witness or PW5 Maya Mayenkar. He had lodged a complaint at Exh.41 against the appellant at Mapusa Police Station in the month of November, 2011 only on learning from the news paper that he was alive. According to this witness in the month of February 2011, the appellant had taken him to Panaji on one occasion where Rs.1,00,000/- was given to an unknown person at his instance. These version corroborates that of PW19 Raghunandan Malgaonkar who testified that the appellant had come to

¶132

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meet him with one person at the church square, Panaji.

¶134

The learned Sessions Judge is right in observing that one could consider the defence plea that the case of PW5 Maya Mayenkar and PW6 Vijendra Mayenkar was false and concocted, but not when it was clearly brought on record through both of them that they enjoyed very good relations with the appellant, that he was like a good samaritan visiting their house on a regular basis, providing the services of his vehicle to them in time of their need and which would account for the confidence reposed in him by them. It is quite obvious that there could not have been any document or receipt of payment of Rs.12,00,000/- to the appellant by this witness to ensure a job of Police Sub Inspector to the daughter of PW5 Maya Mayenkar, as it was not a legal transaction. There is one more obvious reason to accept and rely upon the testimony of these two witnesses on parting of such a huge amount in favour of the appellant when there is evidence on record which clearly indicates that academic and sports certificates of Vinita were recovered from the house of the appellant at his instance, and attached under the panchanama under Section 27 of the Evidence Act. No explanation is forth coming from the appellant as to how those documents were in his possession.

¶135

PW28 Varsha Kamat is an LIC agent who testified that she knew the appellant since her childhood as they were studying in Our lady of Grace High School at Bicholim. Initially, the appellant had obtained a

¶136

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policy from this witness in the month of October 2010. During that meeting appellant had told PW28 Varsha Kamat that he wanted to make additional policies in his own name to benefit his wife and children. He had obtained 18 LIC polices in October 2010, each for the some assured of Rs.50,000/- with his wife as his nominee and paid first premium on each of the said polices which are proved at Exh. 79 colly. She testified that she had gone to the house of the appellant with Development Officer of Life Insurance Corporation to process the paper. The testimony of this witness also remains unshaken during cross examination. Admittedly, after taking these polices in the month of October 2010, the appellant gone missing from 9.4.2011 i.e within next five months or so. It is pertinent to note that the wife of the appellant alone was his nominee as the appellant had already informed this witness that he wanted to take policy for the benefit of his wife and children. There was no special reason given by the accused for obtaining as many as 19 polices with the scheduled maturity dates ranging from 20 years till 37 years later with a provision for pension. It can be safely inferred looking to the time span between the execution of 19 LIC polices and disappearance of the appellant that the entire plan was well thought to create false evidence of his death in order to gain monetary benefits and also to dupe, PW5 Maya Mayenkar.

¶138

PW32 Sylvester D'Souza, the Branch Manager in LIC, Bicholim Branch, testified that he had not received any claim in respect of 19 LIC

¶139

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¶140

polices in the name of appellant till 19.4.2011 would not wipe out the doubt on their creation moreso when PW28 Varsha Kamat had clearly revealed that an investigation would be made if a claim was raised on the death of the policy holder.

¶141

It can thus be seen, the evil design and the well thought plot prepared by the appellant to get the monetary benefits for his wife and children and also to escape the liability to repay Rs.12,00,000/- to PW5 Maya Mayenkar which can be said to be a definite motive to commit alleged offence.

¶142

Coming to the aspect of discovery under Section 27 of the Indian Evidence Act wherein the prosecution has succeeded in proving the discovery of parts of the dead body of the deceased, weapon of offence, LIC polices and certificates of Vinita.

¶143

The Hon'ble Supreme Court in the the case of Antar Singh Vs State of Rajasthan⁴ observed the various requirements of Section 27 which are as follows:-

¶144

“(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the

¶145

4 2004(1) SCC 1005 page 5226

¶146

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crime in order to make the fact discovered admissible.

¶148

(2) The fact must have been discovered.

¶149

(3) The discovery must have been in consequence of some information received from the accused and not by accused own act.

¶150

(4) The persons giving the information must be accused of any offence.

¶151

(5) He must be in the custody of a police officer.

¶152

(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

¶153

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.”

¶154

It will have to be seen as to whether the prosecution has met with all the requirements as per law. The witnesses examined by the prosecution are PW22 Hassen Patel, Police Constable 5569, PW23 Mukund Pai, Head Constable 4021, PW24 Devidas Goankar, pancha witness, PW26 Ashok Pednekar also a pancha witness and PW 34 Dinanath Goankar again a pancha witness.

¶155

PW24 Devidas Gaonkar testified that he was requested to act as a pancha witness on 29.11.2011 after being called by one PW4 Anand Naik telephonically when he was at his residence at Bordem. This witness works for Sesa Goa company, but on that day, he had taken an off. He reached Collem Police Station around 11.00hours and met Anand Naik who was waiting for him outside the police station. PW4 Anand Naik introduced him with PW35 Manoj Mardolkar. Thereafter said PW4

¶156

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Anand Naik left the police station. There were two other persons in plain cloth in the cabin which were introduced as policemen by PW35 Manoj Mardolkar. PW35 Manoj Mardolkar requested PW24 Devidas Goankar to act as a pancha witness in a murder case of one Dilip. Thereafter policemen brought a person who was physically lifted and was made to seat on a chair. He was introduced as Janardhan Kokre by PW35 Manoj Mardolkar. This witness had identified the appellant on the monitor via video conferencing. According to this witness the appellant spoke in Konkani and told that he had made 19 LIC policies in his name. He had copies of the school and sports certificates of one Ms. Vinita Mayekar and that he had a Bajaj Pulsar motorcycle bearing no.1760 which all he would show if his brother was available at home. He also stated that he would show all those properties if he was taken to his house. Accordingly, PW24 Devidas Gaonkar stated that said disclosure was made by the appellant in Konkani which was reproduced in Konkani in the body of the panchanama while the other details were recorded in English. The panchanama started at the police station at 11.30 hours and ended around 12.00 noon. The witness has proved his signature as well as of one Narendra and PW35 Manoj Mardolkar. His evidence further reveals that thereafter they left in a police jeep driven by police driver alongwith the appellant, the Police Inspector, both panchas and two constables on the either side of the appellant on the rear seat. The appellant gave direction to the driver of the police and accordingly they proceeded towards Poira through Valpoi, Sanguelim and Bicholim. The appellant

¶158

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pointed out at his residence at Poira and asked to stop the jeep. Two escorts physically lifted the appellant out of the jeep and on the basis of his direction took him to the house. There was a woman who disclosed her name as Jyoti being identified as the appellant's wife. Panchas were also called inside the house. She was asked to take the personal search of the pancha witness but she declined. Escorts then placed the appellant on a sofa in his house. The appellant pointed towards a computer table which was in the sitting room and told that school and sports certificates of Vinita Mayenkar were in the table's drawer. PW35 Manoj Mardolkar opened drawer, took out the papers and handed over to the appellant. The appellant verified the certificates which were about 32 in numbers and other papers which were photocopies in the name of Vinita Mayenkar. Signature of the panchas were obtained on each of the photocopies which were packed in an envelope and sealed in the presence of the panchas at seven places. Thus, this witness has accordingly proved the discovery of photocopies of the certificates of Vinita and other papers which are collectively marked as Exh.78. He had also identified the signature of the appellant overleaf on each of those certificate.

¶160

The appellant thereafter pointed out to a showcase in the same sitting room and stated that LIC polices were in it. PW35 Manoj Mardolkar, opened the showcase and found a brown coloured envelope containing 19 LIC polices each for an amount of Rs.50,000/- and handed over to appellant for confirmation. He obtained the signatures on the

¶161

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reverse of the said policies, placed them in the same envelope and sealed it. Thus, the discovery of polices have also being proved at Exh.79 Colly.

¶163

The appellant introduced his brother Raju who was at his house. He told him to handover keys of Bajaj Pulsar motorcycle. The witness testified that when PW35 Manoj Mardolkar, asked the said Raju to hand over the keys, he refused and instead attempted to assault PW35 Manoj Mardolkar. The other escort intervened in the matter. Thereafter the said Raju handed over the keys to PW35 Manoj Mardolkar. Bajaj Pulsar Motor cycle bearing registration No.GA-04-F-1760 was parked near his house. Police took a piece of white paper obtained signature of pancha witnesses and pasted it on the petrol tank of the said bike. Accordingly, panchanama was drawn which is proved at Exh.80. The Head Constable PW23 Mukund Pai took photographs of the presence of these witnesses at the time of drawing of panchanama which are proved at Exh.76 colly. PW24 Devidas Gaonkar, categorically stated that he knows PW4 Anand Naik for last 20 years. The learned Counsel for the appellant tried to rebut the testimony of this witness in cross but failed to do so. However, it reveals from the cross that this witness had acted as a pancha witness for the first time and therefore, there is no reason to brand him as a stock police witness. The requirement of Section 27 of the Indian Evidence Act have been scrupulously followed while discovering the said facts which are relevant to the issue. The relevancy of the facts of this discovery is relevant to the other evidence connecting with the crime and therefore,

¶164

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the facts discovered are admissible in evidence, as it can be seen that discovery had been made consequent to the information received from the appellant who was in police custody about which he deposed voluntarily before the pancha witness.

¶166

PW22 Hassan Patel was a part of the police team headed by PW35 Manoj Mardolkar. He testified that on 28.11.2011, the appellant was in police custody in crime no.10 of 2011 under Sections 363, 302, 201 IPC. The appellant made a disclosure statement before PW35 Manoj Mardolkar and panchas namely D. Goankar and V. Naik in Konkani language wherein he said that he would show the places where he had taken victim Dilip, place of his murder, place where he threw the weapon and where he set his vehicle i.e jeep No. GA-04-C-0183 on fire with the body on 9.4.2011. This witness had recorded the said disclosure made by the appellant. It was signed by two panchas and then alongwith PW35 Manoj Mardolkar, pancha witnesses and the appellant and the other escorts left the police station. As per the directions of the appellant jeep was first driven to Brahmaneshwar wadda, Poira being the house of the victim and thereafter to the Chowgule dispensary, Poira, Bharatwada, Poira, being his house, and then to the Sawatesh Servicing Center at Bicholim, Panaji, Miramar, Porvorim, Kadamba Plateau, Priol and lastly at Barkattem, Mollem. The appellant had shown the place where he had murdered victim, severed his head from the torso and threw away the head and the weapon. PW22 Hassan Patel further testified that a knife

¶167

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like weapon called “Sattur” was found which was attached under the panchanama in the presence of panchas namely Devendra Goankar and N. Shirodkar. There is no effective cross examination of this witness by defence.

¶169

PW26 Ashok Pednekar works as a peon in Mayem Credit Society. He had also acted as a pancha witness for recording discovery panchanama. It reveals from his evidence that he was required by PW35 Manoj Mardolkar to act as a pancha witness in taking graphic print outs of the routes taken by the accused in the crime. He deposed in usual manner as to how there was presence of another person, presence of the appellant who was unable to walk and was lifted and brought to the cabin of PW35 Manoj Mardolkar and how he had voluntarily stated about the facts that he would show the route taken by him on 9.4.2011 alongwith deceased Dilip.

¶170

The sum and substance of the evidence of PW26 Ashok Pednekar reveals that after recording memorandum of the appellant they proceeded as per his directions and first drove to Poira and then to the service station at Bordem Bicholim. The appellant thereafter led PW35 Manoj Mardolkar to Sanquelim and informed that he proceeded there in a Tata Spacio Jeep alongwith Dilip. Thereafter they drove to Amona onward to Banastari and then to Miramar, Panaji. The witness further testified that the appellant led them to Kadamba Plateau then to Priol Ponda and

¶171

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disclosed that he had severed the lower and upper limbs apart from the head of Dilip and thrown the same on the left side of the Priol, Ponda road. This part would be inadmissible in evidence being inculpatory. Thereafter the appellant led them to some distance and after travelling about 100 mts or so he had shown the place where he had thrown the weapon used by him for severing the limbs and legs which was on the right hand side of the same road. The appellant further led the team to Barkattem, Mollem and had shown the place where headless body of Dilip and jeep was set on fire. The team returned to the Collem Police Station around 21.00hrs. There is no serious challenge to his testimony by the defence during cross examination.

¶173

PW34 Dinanath Goankar had also acted as a pancha witness in whose presence, according to his testimony, the appellant had disclosed in Konkani as to how he had brought Dilip to his residence on the Pulsar motorcycle and thereafter drove him to the service centre in his Spacio Jeep bearing No. 0183 and further as to how he killed Dilip and disposed off his head and limbs at various places. As already stated, inculpatory part of evidence of this witness needs to be excluded as it would be inadmissible in evidence.

¶174

This witness spoke in tune with PW26 Ashok Pednekar and PW22 Hassan Patel and PW23 Mukund Pai. In addition to that it has come in the evidence of PW34 Dinanath Gaonkar that the appellant drove police

¶175

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team and panchas to Chowgule Dispensary via Mayem road and took them to dispensary of one Narayan Patil. The appellant was lifted and taken to the dispensary where the said doctor identified the appellant and stated that the appellant had brought Dilip to his dispensary on 9.4.2011 and told him that he was going to Belgaum with him. This important fact also supports prosecution story about last seen together of the deceased alive with the appellant on 9.4.2011. The appellant drove the police team towards service station at Bordem, Bicholim at Swatesh Servicing Centre. The owner of said Servicing Centre namely PW30 Anand Parmekar had also identified the appellant and stated that on 9.4.2011 he alongwith victim Dilip came over there on a motorcycle. Motorcycle was parked and appellant took away the victim in his jeep. The next part of the evidence of PW34 Dinanath Gaonkar is about proceedings towards spot where the appellant had thrown the severed body parts of the victim by the side of the road and also a knife which was found by the Manoj Mardolkar (PW35) in a trench which was soiled with mud and confirmed by the appellant to be the same used by him in severing the body parts of the deceased. Knife was about 14, inches with length of the blade was 8 inches. The witness had identified the knife in the court.

¶177

PW34 Dinanath Gaonkar's evidence further reveals that the appellant informed them that he took out some diesel from the diesel tank of the jeep, poured it inside the jeep, over the body and over the

¶178

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entire vehicle and thereafter set it on fire and ran away from that place. Said panchanma is proved at Exh. 99. Photographs, as already stated, are proved at Exh.70 colly.

¶180

During cross examination it surfaced that skull was found as per disclosure of Manoj Mardolkar (PW35 ) and learnt by him from Ponda Police station, which was at a distance of 10 mts towards left side of Panaji Ponda road. Rest of the cross does not shatter the testimony of this witness as regards the disclosure statement and the manner in which facts came to be discovered at the instance of the appellant. It is not the defence of the appellant that neither he had led the police team to the various places nor the knife was recovered at his instance. It is rather confirmed that sealing of the knife after its recovery from the trench was done near the jeep including the stitching material which was taken at the time of panchanama where the weapon was duly sealed in pieces of cloth.

¶181

The testimonies of PW22 Hassan Patel, PW23 Mukund Pai, PW24 Devidas Gaonkar, PW26 Ashok Pednekar and PW34 Dinanath Gaonkar inspired full confidence as regards recovery made by the appellant based on his voluntary disclosure statements. Particularly in the light of the fact that none of the witnesses had any reason to give false evidence against the appellant. There is absolutely no room for any doubt in relying upon the evidence of aforesaid witnesses on the aspect of discovery. It has been established that the appellant had exclusive knowledge of the

¶182

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19 LIC polices, certificate of Vinita Mayenkar, weapon of offence and the place where he had thrown the weapon of offence and the spot where he had set his jeep ablazed containing headless and limbless body of deceased. The learned Sessions Judge has correctly appreciated the evidence on that aspect.

¶184

It appears from the record that the appellant had relied upon his application for bail to support his plea in defence which was consistent with the plea taken during his statement under Section 313 of Cr.P.C. It reveals from the Bail Application that the appellant owned a Tata Spacio jeep which he used to earn his livelihood. He had met one customer conversing in Hindi who had to be dropped at Belgaum alongwith his two friends. One Dilip aged about 45 years, known to the appellant as he hails from the same village repeatedly requested him that he would accompany him to Belgaum and return, so he took Dilip alongwith him in the jeep . He had collected the customer at Sanquelim and thereafter proceeded to Margao to collect his two other friends who were waiting to go to Belgaum. He had gone to Porvorim, then Margao, collected the friends of the customer and reached Vasco at 21.00hrs. He got some food packets at Vasco for customers as well as Dilip and himself. Thereafter, he lost consciousness and found himself locked in a room by three customers at an undisclosed destination on regaining consciousness. He had found that he was kept in a room/bathroom locked from outside. He was subjected to assault and most of the time kept hungry. Windows

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¶186

and bath room were closed with tins sheets. He was unable to know whether it was day time or night as he was kept unconscious by giving sedatives. He was found lying in an unconscious state with both his legs paralyzed on the Mandovi bridge and regain consciousness in GMC hospital Bambolim. He had learnt from his family members that his jeep was found totally burnt at Barkattem, Mollem with a headless body without legs and limbs in a burnt condition. Thus, the appellant put forth his case of innocence, however, the learned Sessions Judge appears to have rejected his application for bail.

¶187

It is pertinent to note that the appellant even after regaining consciousness in June 2011 did not file any complaint with the police nor asked his family to pursue the case at his behest. It is quite surprising from the story put forth by appellant as to why the so called customers would kidnap appellant and then kill deceased Dilip in such a barbaric manner, more particularly, in the light of the fact that there was no demand of any ransom amount by those customers either from family of the appellant or deceased. It is not even the defence of the appellant that Dilip was murdered by those so called customers. It is not even stated by the appellant that he was robbed of any cash or valuables. There is no evidence that the so called customers had some reason to either kidnap appellant or kill the deceased.

¶188

There is clear admission by the appellant that the deceased

¶189

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¶190

accompanied him in the jeep on 9.4.2011 as already stated herein above from which only inference which can be deduced is that it was only the appellant and none other, who had kidnapped the deceased and brutally killed him. The case of the appellant that he was kept as hostage in a room at some undisclosed place and then suddenly dumped him in the month of June 2011 on the Mandovi bridge is an aspect which no sane man will believe. In fact it is quite clear from the evidence on record that the appellant had taken disadvantage of the hapeless and mentally unsound deceased Dilip to give effect to his dubious design. It was an easy defenceless prey for the appellant.

¶191

It is pertinent to note that none of the family members of the appellant lodged any missing report once it was known to Raju Kokrebrother of the deceased that the charred dismembered body was not of his brother when PW31 Dr. Madhu Ghodkirekar opined that there was no plate in the fore arm. Thus, the entire defence is unbelievable, unacceptable and improbable.

¶192

There is no dispute about the CFSL report at Exhibits 105, 106 and 107 which are mainly about viscera of unidentified male which did not contain any alcohol or poison.

¶193

Exh.108 pertains to match box and un-burnt match sticks with partially burnt number plate of the jeep. The report as regards the knife

¶194

mukund /vinita 45 Cria36-13

¶195

would not affect the prosecution case as it was a homicidal death of deceased Dilip which took place on the intervening night of 9.4.2011 and early hours of 10.4.2011 with his head and upper and lower extremities severed and knife/sattur was recovered during the course of panchanama only on 28.11.2011 in an open trench on the edge of retaining wall and after having been washed innumerable times during the entire monsoon.

¶196

The learned Senior Counsel for the appellant stressed on the point that entire trial is vitiated since it is allegedly conducted through video conference when there was no justifiable reason to do so. It is contended that it is not clear whether the during the course of trial the appellant could see the witnesses or his counsel and therefore, prejudice has been caused to the appellant in the matter of defence. It is further contended that there was a distance of about 40 km from the jail up to the court and that the witnesses were deposing from such a long distance and that cross examination of the witnesses had taken place on the very same day. There was no occasion for the appellant to instruct his Advocate while the statement of the witnesses were being recorded.

¶197

First of all there is no ground raised in the memo of appeal and therefore, for the first time such ground could not have been raised without the leave of the Court. Even assuming that we do consider the said ground, it would be pertinent to note that during entire trial through

¶198

mukund /vinita 46 Cria36-13

¶199

video conference, neither the appellant nor his Advocate raised any objection which they could have. It is not their contention in the trial court also that their objection, if any, was over ruled by the trial court. Rather the records of the trial Court clearly indicates a letter written by the appellant to the Sessions Judge from the jail signed by him on 27.4.2012 wherein he had categorically requested the Court to direct the jail authority to admit him in GMC for treatment as he was unable to follow his daily pursuit. It was advantageous to state what the appellant had stated in his application at Exh. D-9 which is self explanatory.

¶200

“Subject: Admission in G.M.C. for medical treatment.

¶201

MAY IT PLEASE YOUR HONOUR

¶202

I, the undersigned most respectfully beg to submit as follows:

¶203

1. That I am a undertrial prisoner, recently operated for urologic dilemmas, I was discharged from the hospital right after the operation on that next day.

¶204

1. That I am handicapp person, with both the limbs disabled had to face hardship in answer my natures call and managing rest of the necessity. As of now certain medical minute wire is injected to my abdomen inorder to facilitate the passing of urine.

¶205

1. Due to my frequent movement right from the prison to hospital my state is worsened. It is very difficult to manage under such circumstances with other fellow inmates and contrary to that hospital authorities are not allowing me admission for proper treatment.

¶206

If your honour please my grievance may be redressed as early as possible. Kindly have mercy and compell my admission in the GMC for proper treatment. Hence, therefore, it is prayed this Honourable Court to consider this matter as most urgent thereby

¶207

mukund /vinita 47 Cria36-13

¶208

providing me an order inorder to facilitate my admission in GMC for proper medical treatment till my recovery from the said surgery.

¶209

Hoping to do the needful.

¶210

Sd/-

¶211

Yours sincerely, JanardhanKokre

¶212

Dated 23.4.2012 Place: Sub Jail Sada Vasco Goa.

¶213

Thereafter, the Assistant Superintendent, Sub Jail by his letter dated 23.4.2012 had also informed about the precarious condition of the appellant who was an under trial prisoner admitted in the sub jail in this crime who was unable to walk due to G. B. Syndrome. He was unable to attend daily routine and requires to take the help of other inmates.

¶214

There is certificate of Medical Board of the Department of Medicine, GMC at Exh. D-13 which indicates that the appellant was examined on 31.5.2012. The certificate reads thus:-

¶215

C E R T I F I C A T E

¶216

We have examined Shri Janardhan Vithu Kokre, son of Late Vithu Kokre, 40 years of age, as requested by Ms. Anuja Prabhudessai, the Sessions Judge, District and Sessions Court, South-Goa, Margao.

¶217

Shri Janardhan Vithu Kokre was examined today and was found to have a post Guillain-Barre Syndrome residual flaccid paraparesis; with a Grade 2-3 power of both lower limbs. This deficit makes him need at least

¶218

2 attendants to help him to move from one place to another as he cannot stand or walk without support.

¶219

mukund /vinita 48 Cria36-13

¶220

He is adviced physiotherapy and his deficit will have to be reviewed every 3 months by the neurologists in Goa Medical College.

¶221

Even in his statement under Section 313 Cr.P.C. The appellant had not raised any objection to the effect that he was prejudiced by not producing before the Court during the course of trial. There is no failure of justice and, therefore, there is no question of trial getting vitiated only because the appellant was not physically produced before the trial Court.

¶222

The learned Senior Counsel has pressed into service a judgment of the Supreme Court in the case of State of Maharashtra Vs. Dr. Praful B. Desai,⁵ . The ratio laid down by the Supreme Court is rather against the appellant's contention. Paragraph 20 of the said judgment is reproduced for the sake of advantage which reads thus:-

¶223

Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility

¶224

5 (2003) 4 SCC 601

¶225

mukund /vinita 49 Cria36-13

¶226

of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions.”

¶227

Thus, all the requirements of Section 273 of Cr.P.C. had been fully met during the course of trial. The appellant and his Advocate could see the witnesses better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. Thus, this argument does not stand to reason. The learned Senior Counsel has also relied upon a judgment of the Supreme Court in the case of Ganpat Singh Vs. the State of Madhya Pradesh,⁶ on the point of last seen together theory. Paragraphs 12,13 of the said judgment read thus:-

¶228

An important circumstance which weighed with the High Court was that the body of the deceased was recovered at the behest of the Appellant. There is a manifest error on the part of the High Court in arriving at this conclusion since the record would indicate that the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of

¶229

6 AIR 2017 SC 4839

¶230

mukund /vinita 50 Cria36-13

¶231

death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body.

¶232

We must also place in balance the testimony of PW4 that when he enquired regarding whereabouts of his mother, the Appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the Appellant had absconded after the date of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of Shantabai. However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the Appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Appellant.

¶233

We are afraid, this ratio would not be of any help to the appellant for the simple reason that there is strong circumstantial evidence in the form of last seen together of the appellant with the deceased and charred dead body of the deceased was found in a burnt jeep on the very next day i.e 10.4.2011 at Bharkattem Mollem. There is no question of strong suspicion but rather there is strong evidence against the appellant who was last seen in the company of the deceased on 9.4.2011 by several witnesses. The appellant too admits in his bail application that he took Dilip with him on 9.4.2011.The time gap between the death of the deceased and the last seen is just a few hours unlike the case before the Hon'ble Supreme Court.

¶234

mukund /vinita 51 Cria36-13

¶235

One more ruling is pressed into service in the case of Jose alais Papachan Vs. Sub Inspector of Police⁷ . It is on the point of casting burden upon the accused under Section 106 of the Indian Evidence Act.

¶236

“52. The evidence of the eye-witnesses when considered in conjunction with the testimony of the doctor does not link the appellant directly or indirectly with the actual act leading to the unnatural death of the deceased. In absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act. The consistent testimony of the appellant and his son to the effect that after alighting from the bus on their return from Pota, the deceased was made to accompany DW1 back home while the appellant did go in search of labourers for works in his compound on the next day and that thereafter till the time DW1 had departed for his ancestral house, the appellant did not return home, consolidates the defence plea of innocence of the appellant.

¶237

On an overall consideration of the evidence available on record, it would be, in our view, wholly unsafe to hold the appellant guilty of the charge of murder of his wife by strangulating her with the nylon rope as seized and then hanging her from the roof with the saree to complete the act. The circumstantial evidence adduced by the prosecution in our assessment falls short of the requirement in law to return a finding of guilt against the appellant without any element of doubt whatsoever. The fact that both the accused persons had been exonerated of the charge of cruelty

¶238

7 (2016)10 SCC 519

¶239

mukund /vinita 52 Cria36-13

¶240

under Section 498A IPC and that the co-accused, who allegedly had assisted the appellant in the perpetration of the crime had been fully acquitted by the courts below of all the charges also takes away the wind from the sails of the prosecution.

¶241

It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of “may be true” but has to essentially elevate it to the grade of “must be true”. In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.”

¶242

In the light of the discussions made herein above, this ratio would not be of any help to the appellant. The prosecution has succeeded in proving, beyond all reasonable doubts, the entire chain of circumstances without there being any gap or break, pointing towards the guilt of the appellant.

¶243

mukund /vinita 53 Cria36-13

¶244

The learned Sessions Judge has correctly appreciated all the fats, evidence and other circumstances on record and reached a correct conclusion that the prosecution has established the chain of all circumstances by its cogent, trust worthy and acceptable evidence. We, therefore, do not see any reason to interfere with the impugned judgment and order. Consequently, appeal stands dismissed.

¶245

Before parting with the judgment it is expedient to state that after preferring this appeal, the Division Bench of this Court ( Naresh H. Patil and F. M. Reis, JJ) vide order dated 24.9.2013 had directed release of the appellant on bail for a period of three months from 24.9.2013, so that appellant would be in a position to get medical treatment with the help and assistant of his family members. This Court had also directed that appellant shall remain present before the Medical Board of Goa Medical College and Board shall examine appellant and submits its report to this Court.

¶246

The matter was called out on 24.12.2013 before the Division Bench of this Court (B. R. Gavai & F. M. Reis, JJ). Paragraphs 6 and 7 of the said order reads thus:-

¶247

“6. Taking into consideration the report of the Medical Board, we find that the interim bail which was granted to the appellant on medical grounds deserves to be continued for a further period of 12 weeks from today on the same terms and conditions which were imposed by this Court vide Order dated 24th September, 2013. At the end of three

¶248

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¶249

months, the appellant shall present himself before the Medical Board, so that the Board examines him and submits its report to this Court.

¶250

Stand over to 2nd April, 2014.”

¶251

Thereafter a Division Bench of this Court (F.M. Reis & Z. A. Haq, JJ) on 2.4.2014 passed the following order:-

¶252

“ Heard Mr. S. D. Lotlikar, learned Senior Counsel for the Appellant and Mr. M. Amonkar, learned Additional Public Prosecutor for the Respondents.

¶253

A report has been submitted by the concerned Medical Officer inter alia disclosing that the condition of the appellant has not yet undergone any significant change. It is further pointed out that the likelihood of the appellant recovering in 12 weeks is very less. Hence, the interim bail granted to the appellant on medical grounds deserves to be continued for a further period upto the next date of hearing on the same terms and conditions which were imposed by this Court vide order dated 24/9/2013. At the end of three months, the appellant shall present himself to the Medical Board so that the Board examines him and submits its report to this Court on the next date of hearing.

¶254

Stand over to 4/8/2014.”

¶255

Thereafter a Division Bench of this Court (B. P. Dharmadhikari & A. S. Gadkari, JJ) by order dated 1.9.2014 passed the following order:-

¶256

“By the order dated 24/12/2013, the appellant was released on bail for a period of three months subject to medical report on his malady. It appears on 2/4/2014 again while continuing his bail he was directed to present himself to medical board at the end of three months. Accordingly, this periodical checkup and extension of bail is going on. 2. Shri Lotlikar, learned Senior Counsel submits that the

¶257

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¶258

entire lower half of the appellant's body is paralyzed and as such, periodical checkup also should be done away with and his bail should be confirmed.

¶259

Learned Addl. Public Prosecutor is opposing the removal of conditions. He submits that this Court should if it is found fit extend the time for report before the medical board.

¶260

In this situation, the temporary bail already granted to the appellant is confirmed till the decision of the appeal on same terms and conditions subject to his presenting himself before the medical board once in every six months from today. The bail bonds to be executed by him and his surety shall be modified accordingly.

¶261

Any non presenting himself to the medical board shall lead to cancellation of bail automatically.”

¶262

Despite confirming the bail of the appellant by this Court on 1.9.2014 directing him to present himself before the Medical Board once in every six months, record reveals that there is only one medical certificate of the Board dated 30.1.2015. Certificate of Medical Board reads thus:-

¶263

OM/GMC/Med-board/15/35 Office of the Chairman Medical Board, Department of Medicine, Goa Medical College, Bambolim, Goa. Date:-30^th January 2015

¶264

C E R T I F I C A T E

¶265

Shri Janardhan Kokre, a 42 years old male, was reexamined by the Chairman of the Medical Board, alongwith the Consultant from the Department of Neurology, as an additional member, as required by the Assistant Registrar of the High Court of Bombay in Goa.

¶266

mukund /vinita 56 Cria36-13

¶267

Shri Janardhan Kokre, a 42 year old male, was examined and found to have, “Sequelae of Gullain Barre Syndrome, Chronic illness neuropathy, with weakness of both lower limbs.”

¶268

He had a grade 4 power of both his upper limbs and a grade 1 to 2 power in both his lower limbs. The power was nearly the same as examined in February 2014 and July 2014.

¶269

He also still had the suprapubic cystostomy drainage to enable him to pass urine.

¶270

He has been requested to come to the neurology OPD for further tests and advice.

¶271

Recovery in the next 6 months( 24 to 30 weeks) is unlikely to occur.

¶272

Sd/Sd/Member Chairman.

¶273

Thus, it is apparent that the appellant had not presented himself before the Medical Board after 30.1.2015 and, therefore, in view of the order passed by this Court on 1.9.2014 his bail stood cancelled automatically, as the appellant had breached the order of this Court.

¶274

We, therefore, direct the appellant to surrender before the learned Sessions Judge who shall take him in custody and commit him to jail for undergoing sentence. We make it clear that the time during which the appellant is released on bail shall be excluded in computing the term for which he has been sentenced.

¶275

Order as regards disposal of the muddemal properties and payment

¶276

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¶277

of compensation to PW4 Anand Naik under Section 357 Cr.P.C. is maintained.

¶278

At this stage, learned counsel for the appellant seeks for continuation of interim bail for a period of four weeks. We note that the appellant in the present case, has already breached the terms and conditions, subject to which he was released on interim bail. In such circumstances, we are unable to accede to the request made.

¶279

Prithviraj K. Chavan, J. M. S. Sonak, J.

Janaradhan Kokre., v. State (Collem Police Station) and Anr.

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Janaradhan Kokre., v. State (Collem Police Station) and Anr.

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