Maria Monica Susairaj Sessions Court Judgement Mumbai

Judgment -S.C.630-08 -1- Exh.341

Exh.341

BEFORE THE COURT OF SESSIONS FOR GR. MUMBAI.

SESSIONS CASE NO.630 OF 2008

State of Maharashra ](at the instance of DCB CID Bandra ]Unit IX, C.R. No.94/08)) ] ..Complainant v/s.

1. Maria Monica Susairaj ]aged 28 years, ]

Occupation – Nil, ] Residing at : 391/A, C Layout, ] Bannimantap, Hanumant Nagar, ] Mysore – 15. ] 2. Emile Jerome Joseph, ] Aged 26 years, Occupation : Nil, ] Residing at : 4527/A, 1st Cross, ] St. Mary Road, N.R. Mohallah, ] Mysore – 570 007. ] .. Accused.

Special PP Mr. R.V. Kini for the State.Advocate Mr. Sharif Shaikh with Rajesh S. Gupta for accused No.1.Advocate Mr. Wahab Khan for accused No.2.

Coram : His Honour The Special Judge & Additional Sessions Judge, Shri M.W.CHANDWANI.

(Court room No.32).

Date : 27 th , 28 th , 29 th 30 th June, 1 st July, 2011 . J U D G M E N T

(Dated 27 th ,28 th , 29 th ,30 th June, 1 st July, 2011)

1. The accused are chargesheeted for offence punishable


u/s. 302 and 201 of I.P.C. r/w 120B or in the alternative sec. 34 of I.P.C.

The accusations against the accused are of serious nature, in the sense

that on 652008, accused Nos. 1 and 2 hatched conspiracy to eliminate

Neeraj Amarnath Grover and pursuant to the said conspiracy, accused

no.1 called Neeraj Grover at his house, the accused No.2 flew to Mumbai

from Cochin and had been to house of the accused No.1. Both the

accused committed murder of Neeraj Grover and with the intention to

screen themselves from the legal punishment, the accused attempted to

cause disappearance of the evidence of murder, the accused chopped the

body of Neeraj Grover with the help of Chopper and put the mutilated

body into bag and burnt it at the outskirts of city, at Manor Wada.

2. It is the case of the prosecution that one Neeraj Amarnath

Grover was working in a creative team of Balaji Telefilm Ltd., which was

engaged in production of T.V. Serials. Neeraj Grover was residing at

Jyoti Apartment, Seven Bungalow, Andheri with his cousin brother. The

accused No.1 is Kannada actress and in the end of April, 2008, she

came to Mumbai for getting foothold in T.V. Serial. She got acquainted

with Neeraj Grover and with the help of Neeraj, accused No.1 gave CD

of her audition to Balaji Telefilm for getting role in serial 'Mahabharat'.

She was trying for role in T.V. Serial through Neeraj Grover. Accused


No.1 was not having place to stay and for some time she resided with

Neeraj. Their acquaintance turned into intimate relationship. On

652008, the accused No.1 took over flat No.201, Wing 'B' in Dhiraj

Solitare Chincholi Bunder Road, Malad (West), Mumbai on rent. It is

further case of the prosecution that till 652008, there was no

development in the matter of getting role in the T.V. Serial by accused

No.1. The accused No.1 was suspicious of Neeraj that whether he was

sincere in assisting to accused No.1 for getting the role in T.V. Serial or

he was bluffing with her. Therefore, she was having grudge against

Neeraj Grover. Accused No.1, out of grudge, hatched conspiracy with the

accused No.2, to eliminate Neeraj. Therefore, she called Neeraj to her

flat on 652008 by making call on his mobile. On 652008, at about

10.30 p.m. Neeraj Grover came to the house of the accused No.1 i.e. flat

No.201, Dhiraj Solitare building, Malad (West). The accused no. 1

talked with Accused No.2, on his mobile, who was at Cochin at that time,

and hatched conspiracy to eliminate Neeraj Grover. In furtherance of

their conspiracy, accused No.2 immediately flew to Mumbai and reached

flat No. 201, Dhiraj Solitare Building Malad (West) at about 7.30 a.m. on

752008. Both accused committed murder of Neeraj Grover in flat

No.201, Wing 'B' of Dhiraj Solitare building, Malad (West). It is further


case of the prosecution that to screen themselves, from legal

punishment, the accused attempted to destroy the evidence of murder of

Neeraj Grover. And for that end the accused No.1 purchased curtain, big

chopper (Art.23), sports bags and room freshner from Hypercity Mall.

The accused chopped the body of Neeraj Grover into pieces and put

mutilated body in the sport bags along with other articles having blood

stains. The accused No.1 borrowed Santro Car from Kiran Shriyan

(P.W.11). They put bags containing mutilated body of Neeraj in the car

and went to outskirts of the City i.e. at Manor Wada. While traveling to

Manor Wada, on the way, the accused No.2 purchased petrol from Vinod

Kumar Mishra (P.W.13), as well as lighter from Amarbahadur Yadav

(P.W.22). Accused burnt the sports bags containing mutilated body and

other articles by pouring petrol over them. It is further case of the

prosecution that the accused No.1 got the mattress covers of her house

changed, through Kamlesh Jain(P.W. 16), and also got the passage of flat

painted through Dhirajkumar Shukla (P.W.15), to conceal the blood

stains from the wall of flat No.201.

3. It is further case of prosecution that it was daily routine of

mother of Neeraj Grover to have talk with Neeraj Grover in the morning,

as well as, in the late evening, on 752008, there was no response to


the calls of Nilam Grover, the mother of Neeraj, which she made to the

mobile No.9967483634 of Neeraj. Thereafter, she made several attempts

to contact Neeraj on mobile, but there was no response. Ultimately, she

contacted Nishant Grover (P.W.33), the cousin brother of Neeraj Grover

and asked him whereabouts of Neeraj. Nishant Grover also tried to

contact Neeraj Grover on his mobile but he could not succeed. He

enquired with Nishant Lal (P.W.9), a friend of Neeraj and other friends,

but still could not get whereabouts of Neeraj. Nishant Lal (P.W.9)

inquired with accused No.1 regarding whereabouts of Neeraj. The

accused No.1 stated that Neeraj had left her place at 1.30 a.m. on

752008, leaving his mobile in her flat. Ultimately, it was decided by

Nishant Grover (P.W.33) and Nishant Lal (P.W.9) along with other friends

to lodge complaint at Malad Police station. On the say of friends of

Neeraj, Accused No.1 also accompanied them to Malad Police station

for lodging missing complaint. Nishant Grover (P.W. 33) lodged the

missing Complaint (Exh.138) with PSI Indap (P.W.34) at Malad Police

station vide Adult Missing Complaint No.47/08.

4. The statement of Nishant Lal and accused No.1 was also

recorded by PSI Shyam Ramchandra Indap (P.W.34). In between,

Amarnath Grover (P.W.1) flew to Mumbai for searching his son Neeraj.


On 952008, the accused No.1 was called in police station. Accused

No.1 handed over Nokia make mobile Model N95 of Neeraj Grover (Art.

45) to PSI Shyam Indap (P.W.34.), he in turn, handed over said mobile

(Art.45) to Nishant Grover (P.W.33) the cousin brother of Neeraj.

Thereafter PSI Indap (P.W.34) went on leave, therefore, the inquiry of

missing complaint was transferred to PSI Raghvendra Singh Abbaji

Shirsagar (P.W.44). He also called accused No.1 and recorded her

statement at (Exh.224 and 225). As there was no development in

missing complaint, therefore, Amarnath Grover (P.W.1) approached to

then Jt. Commissioner Rakesh Mariya(D.W.18). Rakesh Maria directed

crime Branch, Bandra Unit IX for parallel investigation in respect of

missing of Neeraj Grover.

5. Parallel inquiry of missing of Neeraj Grover was handed over

to Satish Rajaram Raorane (P.W.47) by Bandra Crime Branch Unit No.IX.

Till 2052008, whereabout of Neeraj Grover could not be found.

Therefore, on 2052008 , Amarnath Grover made a complaint to Malad

Police station with regard to kidnapping of Neeraj Grover. The

complaint was recorded by PSI Shirsagar (P.W.44) and on his complaint,

FIR (Exh.48) came to be lodged, vide Crime No.347/08 under sec. 363

and 368 of I.P.C. against unknown persons.


6. It is the case of prosecution that in the morning of 2152008,

during interrogation by Satish Rajaram Raorane (P.W.47), the accused

No. 1 confessed of her involvement in the murder of Neeraj Grover with

her fiance, the accused No.2. The accused No.1 was taken to Malad

Police station by PI Raorane. In Malad Police station accused No.1 was

arrested by PI Dhanaji Shivaji Nalawde vide arrest panchnama (Exh.60).

At that time, the accused No.1 was carrying two handsets of Nokia

mobile (Art.7 and 8) as well as a Bunch of two keys of flat No.201

(Art.9). Immediately thereafter accused No.1 made voluntary disclosure

to show the place where the mutilated body of Neeraj Grover was

disposed off, under panchnama (Exh.63A) before two panchas by name

Usha Venkat Ramalu (P.W.5) and Sumit Harish Bakrani. Accused no. 1

led police party and panchas to Manor Wada and thereafter to right

turn, and to a place near a pathway. Adjacent to path way, the half

burnt remains of human skeleton along with some flesh and on bones

were noticed. The police seized ribcage (Art.10); femur bone (Art.11);

and skull (Art.12); of human. Apart from these articles, police also

seized half burnt garland of beads ( Art.1); half burnt chain having

pendent of Gajmukh (art.2) ; half burnt piece of bag (Art. 13); partly

burnt piece of red cloth (Art.14); partly burnt gouge of cloth having red


lines (Art.15); partly burnt deodorant bottle (Exh.16); tin bottle

(Art.17) damaged tin bottle and its pieces ( Art.18); partly burnt metal

button and coins (Art.19colly.); under the panchnama (Exh.63B) from

the burnt spot shown by accused No.1. PI Nalawde also took the soil

mixed with ash (Art.20) from burnt place, as well as soil (Art.21) from

other than burnt place. The garland beads (Art.1) and chain, having

pendent of Gajmukh (Art.2) were identified by Amarnath Grover

(P.W.1), Nishant Lal (P.W.9) and Nishant Grover (P.W.33) as articles of

Neeraj Grover.

7. It is the further case of the prosecution that on 2252008, the

accused No.2 was brought to Mumbai and on the same day, he was

arrested by Malad Police Station. On 22.05.2008, the police along with

accused No.1, visited flat No.201. At the request of Malad Police

station, Expert from FSL also reached at flat No. 201, Dhiraj Solitare

Building Malad (W) and the spot was examined by expert of Forensic

Science Laboratory, Kalina. Blood stains were detected beneath (under)

the painting of outer kitchen wall, curtain of window, knob, and T.V.

Speaker of the bedroom. The said blood stains were collected, including

the blood on outer wall of kitchen by the FSL Experts and the police also

seized 3/4 Jeans, Tshirt, Pair of Shoes and Pillow cover from flat


No.201. Accordingly, spot panchnama was prepared in presence of

panchas including Ghanshyam Chottelal Yadav (P.W.14). On 2352008,

the blood sample of Amarnath Grover (P.W.1) and his wife Nilam Grover

was collected for DNA. Likewise, expert from FSL Kalina, visited Malad

Police Station. They separated femur bone (Art.11) and three teeth

including tooth (Art. 46) from the remains of skeleton for DNA Test,

which were found at Manor Wada. Femur bone( Art. 11) and teeth

were separately sealed.

8. On 2352008, the investigation of the case was transferred to

Malad Police station. Malad Police station registered the same offence by

separate crime No.94/08 of Crime Branch Bandra Unit. Custody of

both accused were also transferred to Crime Branch Bandra Unit No.IX.

It is the further case of prosecution that on 2452008, the accused

No.2, made a voluntary statement before panchas including Ravi Ramesh

Parab (P.W.7) under panchnama (Exh.72A) that he would show where

Chopper (Art.23) was concealed. Thereafter the accused No.2, led the

police party to Manor Wada, and 10 to 15 ft. away from the place

wherefrom remains of human skeleton were recovered, he took out

partly burnt chopper (Art.23), in presence of panchas, which was seized

under the panchnama (Exh.72B). On 2552008, the accused No.1 also

Judgment -S.C.630-08 -10- Exh.341

made voluntary statement under the panchnama (Exh.90A) before

panchas that she would show the car, which was used in the crime.

Thereafter the accused took police party to Four bungalow Andheri

(west) and showed Santro Car bearing Registration No.MHO4BQ9866,

which belonged to Kiran Shriyan. Three foot mats of rear seat, seat

covers of rear seats, dickey mat, and two sun protection sheets (Art.28)

of the said car (Art.28 ) were seized under the panchnama (Exh.90B),

in presence of panchas, including Mohad. Ayub Mehboob Khan (P.W.12).

PI Raorane (P.W.46) recorded the statements of Kiran Shriyan (P.W.11)

and Kamlesh Jain (P.W.16). During his statement, Kamlesh Jain

produced one note book (Art.39), containing address(Exh.98)of flat

No.201 Dhiraj Solitare, written by accused No.1. On 2652008, femur

bone (Art. 11), three teeth including tooth (Art. 46) were sent to FSL

Kalina for DNA test.

9. It is further case of prosecution that as accused No.1 intended

to give confessional statement before the Chief Metropolitan Magistrate,

therefore, on 2652008, she was produced before Addl. M.M. 9th court

Bandra. She was sent to judicial custody for a day and on 2752008,

she made a confessional statement before Ld. Addl. Metropolitan

Magistrate, Pankaj Jivanlal Shah (P.W.13), which was recorded at

Judgment -S.C.630-08 -11- Exh.341

(Exh.132 and Exh. 132A). The substance of confessional statement of

the accused No.1 is that Neeraj came to her flat on 6.5.2008. She

talked with accused no.2 on the mobile of Neeraj. Suddenly in next

morning, the accused No.2 came to her flat at 7.30 a.m. and he saw

Neeraj Grover. Accused No.2, gave a fist blow to Neeraj. Scuffle took

place between accused No.2 and Neeraj and thereafter accused No.2

took kitchen knife and stabbed Neeraj Grover. She tried to hold knife,

she got injury on her hand, Accused no. 2 pushed her and stabbed Neeraj

to death and thereafter, accused No.1 bought articles from Hypercity

Mall; then the accused No.2 cut the body of Neeraj Grover into pieces

and after borrowing car by accused No.1, they went to Manor Wada and

set fire to the sports bags containing mutilated body of Neeraj Grover.

10. On 2952008, PI Raorane sent the Articles recovered from the

spot shown by accused No.1, to FSL Kalikna for clinical and DNA test.

On 3052008, the blood stains articles (Art. 29 colly.), recovered by PI

Nalawade (P.W.45) from flat No.201, Dhiraj Solitare Building, Malad

(West), were sent to FSL Kalina for clinical and DNA Test. Likewise,

chopper (art.23) was also sent to FSL Kalina for clinical and DNA test.

On 3152008, mats, seat covers and sun protection sheets (Art.28 colly.)

the articles seized from Santro car No. MH04BQ9866, were sent to

Judgment -S.C.630-08 -12- Exh.341

FSL Kalina for clinical and DNA Test. On 162008, accused No.2 made

voluntary disclosure to show the weapon of assault, which was recorded

under the panchnama (Exh.81A) in presence of panchas including

Ranjit Surendra Raje(P.W.8). Thereafter accused No.2 led police party to

flat No.201, Wing B, Dhiraj Solitare Malad (West) and from water

drainage of dry balcony, he took out kitchen knife (Art.25), which was

seized under the panchnama (Exh.81B). On 262008, the blood sample

of accused No.1 and 2 were taken by Dr. Shivaji Narayan Daund (P.W.39)

for DNA test by filling consent Form of accused Nos. 1 and 2, (Exh.193

and 194), respectively. The blood of accused Nos. 1 and 2 was sent for

DNA Test by PI Raorane to FSL Kalina. After recording statements of

the witnesses, and collecting of reports of FSL Kalina, the chargesheet

(Exh.5) came to be filed before Chief Metropolitan Magistrate.

11. The ld. Chief Metropolitan Magistrate committed the case

to the Sessions court. Thereafter this case is assigned to this court. My

ld. Predecessor framed the charges for offence punishable u/s. 302, 201

r/w 120B or 34 of I.P.C., against the accused Nos. 1 and 2 vide Charge

(Exh.25). The accused Nos. 1 and 2 pleaded not guilty vide Exh.26 and

27, respectively and claimed to be tried.

12. The prosecution has examined almost 48 witnesses and

Judgment -S.C.630-08 -13- Exh.341

closed its case by filing precipe. After conclusion of evidence of the

prosecution witnesses, the statement of the accused Nos. 1 and 2 were

recorded at Ex.274 and 276 respectively. In support of her statement

u/s. 313 of Cr.P.C., accused No.1 also filed written statement (Exh.274

A). The defence of the accused No.1 and 2 is total denial and of alibi.

The accused have examine 19 witnesses in their defence.

13. According to the defence of accused No.1, she was only

knowing Neeraj Grover, but she never asked him to look role for her in

TV Serial. Accused No.1 took defence of alibi in the sense that on

652008, she was residing in the house of one Deepak and not in flat

No.201, 'B' Wing of Dhiraj Solitare building, Chincholi Bundar Road,

Malad (West). The accused No.1 claims that on 752008, she had been

to Inorbit Mall along with her sister Maria Veronica (D.W.3) to meet

accused No.2. She purchased articles, from other Mall and thereafter at

about 12 noon, she met accused No.2. After spending day with accused

No.2, she along with her sister and brother left for the house of Sharad, a

friend of her brother. In the night she was called by Malad Police station

and thereafter, police used to detain her frequently for hours, everyday

and from 1852008, she was illegally detained in crime branch Bandra

Unit No.9. According to the accused No.1, her confessional statement

Judgment -S.C.630-08 -14- Exh.341

was obtained under duress by police and under threat of detaining her

family members in custody. Accused No.2 also took defence of total

denial and defence of alibi in the sense that he never visited flat No.201

in Dhiraj Solitare building, Malad (W). According to him, on 652008, in

the night when he talked to accused No.1, she was in depression and was

asking him to come down to Mumbai to solve problem of her stay at

Mumbai . It was decided between them that they would meet at Inorbit

mall. He flew to Mumbai and on 752008, and at about 12 noon he

met accused No.1. They spent day together and in the evening, they

separated from each other. Accused No. 2 went to meet his uncle.

Thereafter accused No.2 stayed in one hotel at link road in the night of

752008. On 852008 accused No.2 went to meet his uncle, and he

flew to Cochin. To fortify their defence, accused Nos. 1 and 2 examined

following defence witnesses :

LIST OF DEFENCE WITNESSES EXAMINED BY ACCUSED

D.W.No.

Name of the defence witnesses

Purpose Examined by

D.W.2

Pradeep Jagannath Jagtap To produce the gate entry register Exh.285 of Byculla jail.

Accused No.1.

D.W.3

Maria Veronica Susairaj (sister of accused No.1)

To show her alibi. Accused No.1.

Judgment -S.C.630-08 -15- Exh.341

D.W.4

Shaikh Latif Gaffar (Sr. Manager of MidDay Newspaper

To produce & prove prove publication of news in newspapers Exh.300,301, & 302.

Accused No.1.

D.W.5

Vinod Kumar Memon (Chief Reporter of MidDay)

To prove publication of news column Exh.300A, 301A and 302A.

Accused No.1.

D.W.6

Jitendra Kumar Dey (Journalist.)

To prove publication of news column Exh.300B.

Accused No.1.

D.W.7

Sayyed Soshan Rizvi(reporter of MidDay)

To prove publication of news column Exh.301C)

Accused No.1.

D.W.8

Ketan Pravin Ranga (reported of MidDay)

To prove publication of news column Exh.300D, & Exh.301D).

Accused No.1.

D.W.9

Vinod Kumar Memon (Chief Reporter of MidDay)

To produce newspapers marked Exh.310.

Accused No.2

D.W.10

Dharmesh Hariram Thakkar

To prove CD(Exh. 330) Accused No.1

D.W.11

Nilesh Balkrishna Dave to prove CD(Exh.330) containing R.K.B.

Accused No.1

D.W.12

Sunil Krishnaji Damle ( Rtr. Commander in Chief Southern Navel Command )

To prove official record Accused No.2

D.W.13

Sanjay Jagdish Chandra Sharma (Navy officer)

To prove official record.

Accused No.2

D.W.14

Deepak Jaidevsingh Malik To dispute TI parade dated 572008 and 762008

Accused No.2

D.W.15

Ashish Shahu Raorane (photo journalist Mid

To produce Exh.310A photograph of news

Accused No.2

Judgment -S.C.630-08 -16- Exh.341

Day) column.

D.W. 16

Manish Naresh Thakur To dispute TI Parade dated 572008 and 762008.

Accused No.2.

D.W.17

Rajiv Kanwar Bajaj(TV Journalist)

To prove R.K.B. show Accused No.1.

D.W.18

Rakesh Harikrishna Maria (then Jt. Commissioner of police)

To prove press conference held by him on 2582008.

Accused No.1.

D.W.19

Naga Bhushan Niranjanachar (Naval Provost Marshal Lt.)

To produce document of INS Venduruthy Exh.336 colly.

Accused No.2

14. Having heard ld. Special APP Mr. R.V. Kini for the State, as well

as Advocate Sheriff Shaikh for accused No.1 and Advocate Wahab Khan

for accused No.2, and after going through the material available on

record, the following points arise for my determination, to which, I have

answered against each of them for the reasons to be followed

hereinafter:

Points for determination:

Sr. No.

Points Findings

1. Whether the prosecution proves that remains of human skeleton found at Manor Wada is of Neeraj Grover ? Yes.

2. Whether the prosecution proves that Neeraj Grover met with homicidal death ?

Yes.

Judgment -S.C.630-08 -17- Exh.341

3. Whether the prosecution proves that on 6.5.2008, the accused hatched criminal conspiracy to commit murder of Neeraj Grover ?

No.

4. Whether the prosecution proves that on 752008, between 7.30 a.m. to 8 a.m. in flat No.201, 'B' Wing, Chincholi Bunder Road, Malad (W), Mumbai, in furtherance of criminal conspiracy, the accused Nos. 1 and 2, committed murder by intentionally or knowingly causing death of Neeraj Grover and thereby committed offence punishable u/s. 302 r/w 120B or 34 of I.P. Code?

Offence u/s. 304 (I) is proved against accused No.1 only.

5. Whether the prosecution proves that on 752008, in flat No.201, BWing, Chincholi Bunder Road, Malad (W), Mumbai, in furtherance of their common intention, knowing or having reason to belive that offence of murder has been committed, caused evidence of said offence to disappear by making pieces of the corpus and burning it with intention of screening themselves from legal punishable u/s. 201, r/w 34 of I. P. Code ?

Yes. However, the offence u/s. 304(I)is proved, hence, accused are convicted u/s.201 (II) of I.P.C.

6. What offence, if any, are proved against the accused ?

As per final order.

R E A S O N S

15. At the outset, let me state that there is no ocular evidence of eye

witness to the alleged crime, who had seen the accused while

Judgment -S.C.630-08 -18- Exh.341

committing actual offence as alleged. The entire case of the prosecution

rests on circumstantial evidence. To prove the offence, incriminating

circumstances against the accused, the prosecution has examined the

following prosecution witnesses:

P.W No.

Name of Witness Document brought on record Article brought on record.

1 AMARNATH RAMDAS GROVAR (father of deceased )

48 F.I.R. dtd. 20/5/08(complaint) 1The garlands of Beads(like chain)2 Chain of decease having pendant of Gajmukh in burnt condition

2 Mrs. MAURI PRAJAPATI(neighbour of Flat no.203)

Occupant of flat No.203, opposite to flat No.201.

3 SANDESH NANDKUMAR SHIRKE (estate agent)

55Original report dtd. 2/5/09 from Police Stn. explanation to handwriting expert opinion56Leave and License agreement of Maria flat58 Admitted panchnama dt. 22.5.08

4 SANDHYA ASHOK NAZARE (Panch) (arrest panchnama )

60 panchnama dt. 21.5.08, 61 7 photographs with report.

7 two handset of mobile, Nokia made,Modle No.N80 8 Nokia make mobile phone., 9 two keys of flat of accused no.1.

5 Mrs. Usha Venkat Ramlu (Panch)

63A, memorandum panchnama63B panchnama 64 panchnama dt. 2350865 report @ true copies of FIR C.R.No.25009

10 – piece of burnt bone,11 – rib cage,12 – skull 13 – burnt piece of bag14 burnt piece of red cloth, partly burnt gouge of cloth having red lines.

Judgment -S.C.630-08 -19- Exh.341

15 – damaged glass perfumed bottle,16 tin bottle(damaged17 tin bottle in damaged condition18 pieces of bottle,19 colly – envelopes having signatures of panchas.20 packet containing soil21 – packet containing soil22 colly. 7 photos

6 Kundan Ravindra Zha (security guard)

7 Ravi Ramesh Parab (recovery chopper)

72A, memorandum panchnama dt. 24508, 72B, latter panchnama dt 24509

23 big knife (chopper with sawteeth) 24 plastic wrapper of article 23.

8 Ranjit Surendra Raje (recovery knife)

81A, panchnama (memorandum dt. 1608)81B panchnama

25 knife 26wrapper @ label of art. 25.

9 Nishant Nirmalkumar Lal (relation between accused and deceased)

10 Satishkumar Gayaprasad Singh

84 report (4 sealed envelp. along with report of org. statement of 4 witns. sealed envelope i.e. statement of P.W.10

11 Kiran Shriyan (choreographer )(Santro car)

88 – xerox copy of R.C. Book for the sake of identification.

12 Mohd. Ayub Mehboob khan 90A Panchnama dtd.25/5/0590B Recovery panchnamadtd. 25/5/05

27colly3 wrappers28colly Rubber mat, Rexine seat covers @ sun protection sheets

13 Vinodkumar Ramashankar Mishra (Petrol Pump)

14 Ghanshyam Chottelal Yadav(Spot panchnama)

94 panchnama dt. 22.5.08 29 colly, 5 small packets containing samples of scrapings30 one packet and

Judgment -S.C.630-08 -20- Exh.341

label31 one pillow cover32 label33 jeans pant34 – wrapper @ label35collyone pair of shoes36wrapper @ label37one T Shirt38wrapper @ label

15 Dheeraj Kumar A. Shukla(painter)

16 Kamlesh Premchand Jain(mattress)

98entry in writing by accd.no.1(Red colour book)

39 Order book(Red colour note book)

17 Dr. Baban Shripati Shinde(exmine Accd. No.1 on 13/5/08)

100Certificate of Medical examination dtd. 13/5/08101forwarding letter from Malad P.Stn. dtd. 13/5/08 in the cross exam. of behalf of Accd.No.1

18 Shridhar M.Patil (Doctor) 103Opinion letter of Dr. Gaud104Original letter dtd. with signatures of Dr.Gaud

10 Piece of burnt bone23Big knife(chopper) with sawteeth

19 Vivek Jotybhushan Tiwari(Hypercity Mall)

40copy of the receipt of HDFC Bank on Red colour note book41copy of the printout of billing system dtd. 26/5/0842Debit card of HSBC

20 Vaishali More(Hypercity Mall)

110collyComputer copy of Hypercity Mall bills dtd.7/5/08111Statement dtd.9/7/08

21 Bharat Rajendar Bhagwaniya(Hypercity Mall)

43 collyknife@ card board

22 Amarbahadur Zingriram Yadav(Wada RoadPan Shop)

23 Sharad Shankar Vichare (SEO)

Judgment -S.C.630-08 -21- Exh.341

24 Mrs.P.A. Umadevi(Air India)

25 Sumit Anup Arora (Script Writer)Friend

26 Vasant Sureshkumar (Lieutenant of Navy Cochin)friend No.2

27 Ajay Shyam Pande(Lieutenant of Navy)frined (credit card)

28 Commander R. Rajiv (Cochin)

123 Letter dtd.9/5/08124Statement of Lt. Vishal Singh125W/st. given by Accd.No.2126Questionery of Accd.No.2127Finding dtd. 16/5/08

29 Divyaprakash Santoshkumar Shah(Adjoindig Building)

30 Pankaj Jivanwanlal Shah ( CMM)Confessional Statement

132Part No.1 of Confessional Statement of Accd.No.1 u/s 164 of Cr.p.c.132A

31 Kedar Ashok ChoubleLegal Advisor Balaji Telifilms

44CD

32 Roshan Harishchandra Pawar(Power of Attorneyowner of flat No.201)

33 Nishant Surendra Grover 138Missing complaint dtd. 8/5/08 45Nokia phone N95 of deceased Neeraj Grover

34 Shyam Ramchandra Ingap 141xerox copy of entry in station diary at page 114 at Sr. No.4/8 142Page No.156 and 157 of station diary entry at Sr. 22 dt.9/5/08

35 Shri Lade (Asst. Chemical Analyser)

146Letter from Malad P.Stn.of Forensic Lab, Santacruz,146ALetter (Original office letter produced by P.P.bearing acknowledgment dtd. 23/5/08147Original requisition letter dtd. 26/5/08147AForwarding letter dtd. 26/5/08148Report/letter dtd. 26/4/05(D.N.A. report)

28A, 29A colly, 46, 46A,

Judgment -S.C.630-08 -22- Exh.341

148A149Report (D.N.A) dtd. 26/6/08150Report dtd. 29/5/08(Requisition Letter)150A151Report(Original requisition letter)dtd. 30/5/08151AOffice copy of requisition letter 152Report dtd. 26/6/08153Original requisition letter dt.30/5/08153A Office copy of requisition letter dtd. 30/5/08154Original requisition letter of DCB CID dtd. 2/6/08154A Office copy of requisition letter dtd. 2/6/08155 Requisition letter dtd. 26/6/08156Original requisition letter of DCB CID dtd. 31/5/08156A Office copy of requisition letter dtd. 31/5/08157 Report dtd. 26/6/08158 Report dtd. 26/6/08159Orig requisition letter of DCB CID dtd. 2/6/08159AOffice copy of requisition letter dtd.31/5/08160 Report dtd. 26/6/08 163 Identification form of Neelam and Amarnath193 Identification form of Accd.No.1194 Identification form of Accd. No.2

36 Rajendra Ramchandra Mavle

165 Report dtd. 21/7/08(O.W.14514/08)166 Report dtd. 21/7/08(O.W.14509/08)167 Report dtd. 21/7/08(O.W.14511/08)168Report dtd. 21/7/08(O.W,14516/08)169Requisition letter of DCB CID dtd. 10/7/08170Report dtd. 21/7/08 (O.W. No.14576/08)

Judgment -S.C.630-08 -23- Exh.341

170A

37 Mrs. S.A. Shinde(Asst. Chemical Analyser)

176Report of forensic Lab dtd. 21/7/08177 Report of Forensic Lab O.W,No.14508178Report from Forensic Lab dtd. 17/6/08 O.W.No.14513/08178ACovering letter from Forensic Lab with signature of Shri Talpe (Office copy179 Report from Forensic Lab dtd. 30/6/08 O.W,No.12766

48Plastic Can

38 Dr. Prasad Gundupanth Kulkarni

182A, 182BRequisition letter @ receipt of Grant Medical college dtd. 27.5.08182COriginal letter from DCB CID183 Report dtd. 13/8/08183A to 183C2 labels dtd. 23/5/08 & 31/5/08 & outer label of the parcel

39 Shivaji Narayan Daund 185Requisition letter dtd. 23/5/08 from Malad P. Station186Requisition letter for taking blood sample of accused

40 Dilip Pralhad Ahiwale 189collyLetter O.W.No.3351/08dtd/20/8/08 Crime Branch190Opinion dtd. 29/4/09(B.B.No.315/08191Colly 12 Statements

41 Rajesh Sampatrao Gaikwad 196Office copy of requisition letter dtd. 21/7/08197 collyCovering letter @call details report@Certificate dtd. 1/8/08198Letter dtd. 11/12/08199collyCall details @ letter dtd. 12/12/08200Appln.form of subscriber for Identity and addressw purpose(scan copy)

42 Changdeo Haribhao Godse 202Letter dtd. 21/7/08 of Dy.Commissioner to call, call details report203Covering letter dtd.

Judgment -S.C.630-08 -24- Exh.341

31/7/08(call detail report of mobile)204Certificate dtd. 31/7/08205Letter dtd. 31/7/08205ACall details of mobile No.9920825923206Letter dtd. 31/7/08206AMobile No. 9819430611207Letter dtd. 31/7/08207AMobile No.9920944083208Requisition letter from crime branch209CollyCall details with covering letter

43 Sunil Tiwari (Nodal officer of Bharti Airtel co.)

215Request letter dtd. 21/7/08(9967483634 by office of Dy.Commisioner)216Covering letter217Certificate218collyCall details of mobile No.9967483634219Call details of Mobile No.9967483634220Call detail record221Office copy of letter dtd. 26/9/08222Office copy of letter of Yogesh dtd. 1/12/08

44 Raghvendra Singh Abaji Kshirsagar

Exh.225, 226 statements of accused No.1.

45 Dhanaji Shivaji Nalwade 22.colly,58.colly,63.B,64,94,227,228,229,230 to 233, 235

1,2,3,4,5,6,7,8,9,10 to 18 7A,8A,9A,20,21,20A, 21A,29.coll29Acolly,31 to 38,47

46 Shantanu Vijay Agarwal

47 Satish Rajaram Raorane 232Office order dtd. 22/5/08239Letter from Sr. P.I. dtd. 23/5/08(O.W.608/08)241Letter address to M.M.Court Bandra dtd.26/5/08242AStatement of Mangesh Hedulkar dtd. 2/6/08

242B Statement panchnama dtd. 2/6/08243 Call details of Mobile No.

1The garland of Beads(broken condition) like Chain2Chain of decease having pendant of Gajmukh in burn condition10Piece of burnt bone11Ribcage

Judgment -S.C.630-08 -25- Exh.341

9920925439 12Skull13Burnt piece of bag14Burnt piece of Red cloth, partly burnt gauge of cloth having red lines15Damage glass perfume bottle16Tin bottle(damaged)17Tin bottle in damage condition 18piece of bottle part of Art.47

48 Vikas Narayan Phulkar

16. Apart from the testimony of prosecution witnesses, the

prosecution is also relying on various documents and articles such as

missing Complaint (Exh.138), FIR (Exh.48), DNA reports, Chemical

Analyser's report, Memorandum and recovery panchnamas,

Memorandums of test identification (Exh. 34 to 37), bills of Hypercity

Mall (Exh.110 colly.), Written statement and questionery to accused

No.2 at Naval Base Cochin (Exhs.125, 126) identification form of

accused (Exh.193 and 194) (call details report) of mobile subscriber of

accused as well as Neeraj Grover. Besides this, prosecution is also relying

on various muddemal – articles such as, garland of beads (Article 1),

chain having Gajmukh pendent (Art.2), bunch of keys of flat No.201,

(Art.9), skull article, femur bone and pieces of rib cage article 10, 11

Judgment -S.C.630-08 -26- Exh.341

and 12 respectively, burnt piece of bag (Art. 13), partly burnt cloth

having red lines (Art. 14), burnt gouge of cloth (Article 15), deodrunt

bottle (Article 16), tin bottle (Article 17), damaged tin bottle with its

pieces (Art.18), partly burnt metal button (Art.19), soil with ash

(Art.20), soil sample (Art.21), 7 photographs (Art. 22 colly.), Big knife

(Chopper) with sawteeth (Art. 23), Plastic wrapper of (Art. 23), knife

(Art. 25), rubber mat, rexine seat covers @ sun protection sheets art.28

colly, two seat covers part of (Art. 28 colly.) five small packets

containing samples and scrapings (Art. 29 colly.) one sample packet of

scraping wall paint (Art. 29A), one pillow cover (Art.31), jeans pant

(Art.33), one pair of shoes (Art.35 colly.), one T shirt (Art.37), Order

book (Art.39), copy of receipt of HDFC (Art.40), copy of receipt of Hyper

City Mall (Art. 41), Debit card of HSBC (Art. 42), knife along with card

board (Art.43 colly.) CD (Art. 44), Nokia phone N95 (Art. 45), Human

teeth (Art. 46 colly.) Duster, partly burnt plastic pieces, chain lock (Art.

47 colly.) plastic Can (Art. 48), Station diaries (Art.49 and 50).

17. Before proceeding to deal with points for determination,

let me state the facts, which are undisputedly proved by the prosecution.

18. Neeraj Amarnath Grover was working as Asstt. Creative

Head, Balaji Telefilm and thereafter 'Synergy' a Company engaged in

Judgment -S.C.630-08 -27- Exh.341

production of TV serials. He was biological son of Amarnath Grover

(P.W.1) and Nilam Grover. Neeraj was residing at four bungalow

Andheri with his cousin Nishant Grover (P.W.33). In the last week of

April, 2008, Accused No.1 came to Mumbai, to work as a actress and

to get foothold in entertainment industry. The accused No.2 was fiance

of accused No.1, both intended to marry each other. The accused no.1

was trying to get role in TV serial. She gave CD (Art.44) of her audition

for getting role in 'Mahabharat' Serial to Balaji Telefilm. In the night of

652008, accused No.1 and 2 talked with each other on their mobile No.

9920944083 and 9388920779. Accused No.2 flew to Mumbai by

flight scheduled to fly at 3.55 a.m. On 752008, Accused No.2 was in

Mumbai on 752008. On intervening night of 752008 and 852008,

Nishant Grover (P.W.33) Lal lodged missing complaint (Exh.138) with

Malad police station. The accused No.2 was brought to Mumbai on

2252008, and was arrested by Malad P. S. On 2352008, the

investigation of the case was transferred to Crime Branch Bandra Unit

No.IX. The confession statement (Exh.132A) of accused No.1 was

recorded by Pankaj Shah (P.W.30). The blood sample of the accused No.1

and 2 were taken on 2.6.2008.

19. Before proceed to deal with the points for determination, let

Judgment -S.C.630-08 -28- Exh.341

us decide some points/objection, which were raised during recording of

evidence and were kept to be decided at the time of final disposal of the

case. The prosecution filed statements of accused No.1 at (Exh.225, 226

and 227). According to the prosecution, these statements of accused

No.1 were recorded prior to lodging FIR and prior to detection of murder

of Neeraj Grover. Therefore, these statements are not hit by section 162

of Cr.P.C. to which, the defence objected. It appears that the

prosecution is relying on these statements of accused No.1 to show the

conduct of the accused No.1. There is no dispute that subsequent

conduct of accused is a relevant fact and is admissible u/s.8 of Indian

Evidence Act. Let me reproduce Sec.8 of the Evidence Act.

Motive, preparation and previous or subsequent conduct “Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to such suit or proceeding, or any reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is subject of any proceedings, is relevant, if such conduct influences or influenced by any act in issue or relevant fact, and whether it was previous or subsequent thereto.”Explanation 1 The word “conduct” in this section does not include statements unless those statements accompany and explain any acts other than statements, but this explanation is not to

Judgment -S.C.630-08 -29- Exh.341

affect the relevancy of statement under any other section of this Act.

Explanation 2 When the conduct of any person is relevant any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

Therefore, the explanation (1) to section 8 says that conduct does not

include statements unless the statements accompany and explain acts

other than statements. So, what is admissible under this section is act

accompanied by statement and not the statement itself. In the present

case, the prosecution contending that conduct of accused itself is

mentioned in the statements Exh.225, 226 and 227 and not

accompanied by any act other than statements, therefore, I rule that the

statements of accused No.1 Exh.225, 226 and 227 are not admissible in

evidence. However, to avoid the confusion, I may state that the evidence

of prosecution witnesses in respect of conduct of the accused after

752008 , mentioned in the statements is admissible. So, the statements

of the accused No.1, itself are not admissible but the evidence of the

prosecution witnesses to show same conduct which is mentioned in the

statement of accused is admissible. Another point which was left for

deciding at the time of final hearing was admissibility of a question to

witness Pankaj Shah (P.W.30). However, in view of answer given by

Judgment -S.C.630-08 -30- Exh.341

Pankaj Shah (P.W. 30), nothing remains to decide.

Now let us turn to the points for determination.

Point No.1.

20. It is alleged by the prosecution that Neeraj Amarnath

Grover is murdered by accused accused Nos. 1 and 2 and thereafter,

they disposed of mutilated body of Neeraj Grover by setting fire in

outskirt of city I,e. Manor Wada. Admittedly in this case, the remains of

human skeleton produced by the prosecution before the court is not

identifiable perse i.e. In other words, mere seeing of remains of skeleton

which is produced by the prosecution, it is not possible to hold, to which

person they belong. To prove the corpus of Neeraj Grover, the

prosecution is relying on version of Amarnath Grover (P.W.1) and

Nishant Lal (P.W.9). Apart from the testimony of these witnesses, the

prosecution is also relying on scientific test i.e. finger prints of DNA and

for that purpose prosecution has examined Lade Chemical Analyser

(P.W.35). Let us see whether the prosecution could prove the corpus of

Neeraj Grover.

21. It has been brought on record through Amarnath Ramdas

Grover (P.W.1) that he had been called to identify the articles which

were recovered from Manor Wada. This witness has identified beads

Judgment -S.C.630-08 -31- Exh.341

garland (Art.1) and burnt chain with Gajmukh pendent (Art.2) .

According to this witness, these articles belonged to Neeraj Grover. It

has also been deposed by this witness that he stayed with his son, Neeraj,

for one week at Mumbai, at the time of Holi Festival, therefore, he could

identify beads garland (Art.1) and chain with Gajmukh Pendent (Art.2).

22. Likewise, it has also been brought on record by the

prosecution through Nishant Lal (P.W.9) that beads garland (Art.1) and

chain with Gajmukh Pendent (Art.2) were of Neeraj Grover.

23. It is submitted on behalf of the ld. APP that Amarnath

Grover (P.W. 1) is father of the Neeraj and Nishant Lal (P.W.9) is friend

of Neeraj respectively and they are the best persons to identify the

articles belonging to Neeraj. As against this, the ld. advocate Sharif

Shaikh on behalf of the accused No.1 submitted that there are

contradictions between the version of Amarnath Grover (P.W.1) and

Nishant Lal (P.W.9) regarding their presence at the time of identification

of articles in Malad Police on 2152008. Ld. advocate for the accused

No.1 took me to the crossexamination of (P.W.1), wherein he has

deposed that when he had been to Police station for identification of

articles, apart from Nishant Lal, there was no other person present in

Malad police station, and whereas, (P.W.9) Nishant Lal claims that he

Judgment -S.C.630-08 -32- Exh.341

also identified the articles no. 1 and 2 alongwith Amarnath Grover. So

according to Ld. Adv. for accused no.1, this is contradiction. Therefore,

taking help of this contradiction, ld. advocate for the accused No.1

submitted before me that this contradiction goes to show that they never

visited Malad Police Station for identification of articles.

24. It is not in dispute that Amarnath Grover is father of Neeraj

Grover. When he has specifically deposed that the beads garland

(Art.1) and chain with Gajmukh Pendent (Art.2), belonged to Neeraj

Grove. I am unable to digest the arguments of ld. advocate for the

accused No.1 that these articles have not been proved to be of Neeraj

Grover for the simple reason that if these articles were not of Neeraj

Grover, then for a father, it is happiest moment in the world, with hope

that his son is alive, though lost. Therefore, there is no reason for

Amarnath Grover (P.W.1)to depose falsely that beads garland (Art.1) and

chain with Gajmukh Pendent (Art.2) belongs to Neeraj, which is

corroborated by (P.W.9).

25. Let us turn to scientific test on which the prosecutions is

heavily relying for identification of corpus. Shrikant Hanmant Lade

(P.W.35), Asst. Chemical Analyser of FS Kalina, who has deposed that he

is working as Asst. Chemical Analyser from 1511990. He had

Judgment -S.C.630-08 -33- Exh.341

conducted and reported 600 to 700 DNA tests. He has been trained at

Centre for DNA finger Prints and Diagnosis at Hydrabad. He had also

attended workshop of DNA Finger Prints organized by FSL, New Delhi.

From further deposition of this witness, it goes to show that he has

attended various conferences and he has been awarded by various

institutions. Before proceeding to deal with his evidence, let us see

whether DNA test is admissible in evidence. Section 45 of the Evidence

Act contemplates as under:

“ Opinions of Experts – when the court has to form an

opinion, upon a point of foreign law, or of science or

art, or as to identity of handwriting, or finger impression,

the opinion upon that point of persons specially skilled

in such foreign law, science or art, or in questions as to

identity of handwriting [or finger impressions] are levant

facts.”

26. As per prosecution case, the femur bone and three teeth

from the remains of the skeleton were sent to DNA Test to FSL Kalina for

identification of skeleton. Though it is disputed by the defence that the

remains of skeleton were recovered from Manor on 2152008, which I

will deal separately, but fact remains that the femur bone skull & ribcage

Judgment -S.C.630-08 -34- Exh.341

found by the police during investigation. However, it appears that

during maceration procedure, the ribcage turned into pieces. Mr. Lade

(P.W.35) has deposed about DNA Test. According to him, DNA is genetic

material which is present in nucleus of each and every nucleated cell of

every individual. In nucleus of DNA of a person, there used to be one

copy of DNA from mother and one copy of DNA from father; DNA

remains in different types of body cell like bone cell, epithelial cell,

sperm cell, buccal cell, epithelial cell i.e. cell from cheek nasal, hair with

or without bone, sweat cell, tooth pulp cell. It is further deposed by this

witness that from the profile of DNA, we get discrimination power of a

person which is discriminable in 10 of trillion. That means from the

DNA profile, we get unique DNA of a person. The exception to

uniqueness of DNA is in case of mono zygotic twins which is found

rarely.

27. So, according to this witness, finger print of DNA is unique

to the word Population. It has been brought on record that this witness

has done DNA profile of femur bone (Art.11) and teeth which were

sent to FSL Kalina for DNA Test. It has been further brought on record

that this witness has done DNA profile of blood sample of Amarnath

Grover (P.W.1) and his wife Nilam Grover. This witness has specifically

Judgment -S.C.630-08 -35- Exh.341

deposed that the result of DNA profile of femur bone as well as teeth

were one and the same, which conclude that the femur bone and

tooth( Art. 46) is of one and same person. This witness has also

compared the DAN profile of blood of Amarnath Grover and Nilam

Grover with DNA profile of femur bone (Art.11) and teeth and he

concluded that all 15 STR locus of profile of DNA of Amarnath Grover

and Nilam Grover were matching with 15 STR locus of DNA of femur

bone (Art.11) and teeth. This witness opined vide report (Exh.148), that

Amarnath Grover and Nilam Grover are concluded to be the biological

parent of Femur bone (Art.11) and teeth (Art.46). I have also gone

through report (Exh.148). Bare perusal of this report goes to show that

in all 15 STR locus of femur bone, (Art.11) and teeth (Art.46), there is

presence of one allele of Nilam Grover and other allele of Amarnath

Grover.

28. At this stage, it is submitted on behalf of Ld. advocate for the

accused that it has not been proved that the blood sample is of

Amarnath Grover and Nilam Grover. Both defence advocates vehemently

submitted that the prosecution has not proved the consent Form

Identification Form of Amarnath Grover and Nilam Grover (Exh.163

colly). It is the submission of the ld. advocate for the defence that Dr.

Judgment -S.C.630-08 -36- Exh.341

Shivaji Narayan Daund (P.W. 39) has not been shown the identification

Form (Exh.163), which goes to create doubt whether the blood which

was sent to FSL Kalina, is of Amarnath Grover and Nilam Grover. In this

respect, it is pertinent to note that Amarnath Grover (P.W.1) in his

deposition has deposed, that his blood sample was taken for DNA Test,

which is not disputed by defence in his crossexamination. Likewise,

there is deposition of Shivaji Narayan Daund(P.W.39), who has also

deposed that he took blood samples of Amarnath Grover and Nilam

Grover. If that is so, then I do not find any substance in the arguments

of the ld. advocate for the defence that the blood sample of Amarnath

Grover and Neelam grover is not established. Rather identification form

carries seal impression of Police.

29. Taking into consideration version of Amarnath Grover

(P.W.1), Nishant Lal (P.W.9) and Nishant Grover (P.W.33) and Asst.

Chemical Analyer Mr. Lade (P.W.35) coupled with the fact that till today,

nobody knows the whereabouts of Neeraj Grover and as stated above,

why a father will falsely identify the articles of his son to decide

whether he is alive, coupled with scientific test also proves that the

remains of skeleton i.e. femur bone and tooth is of Neeraj Grover and

prosecution is able to establish that the corpus i.e. the remains of

Judgment -S.C.630-08 -37- Exh.341

skeleton is of Neeraj Grover. Hence, I answer this point in affirmative. As

such, I have held that the remains which is produced by the prosecution

is of Neeraj Grover. Therefore, nothing remains to say that Neeraj is still

alive and it can be safely said that Neeraj Grover is no more in this

world. Hereinafter, Neeraj will be referred as “deceased” hereinafter.

Point No. 2, 3 , 4 and 5:

30. As point Nos. 2 , 3, 4 and 5 are inter connected, and looking

to the evidence adduced by the prosecution, as well as the defence of

the accused, it will be convenient to discuss point Nos. 2,3,4 and 5

together.

31. The prosecution has come with the case that the accused

person in pursuance to criminal conspiracy committed murder of Neeraj

Grover on 752008, in flat No.201, 'B' Wing, Dhiraj Solitare Chincholi

Bunder, Malad (W) and in furtherance of their criminal conspiracy, the

accused disposed of the mutilated body of Neeraj Grover at the

outskirts of City and therefore, the accused have committed offence

punishable u/s. 302, 201 r/w sec. 120B or 34 of I.P.C. There is no direct

or ocular evidence of witness, who had seen the accused while

committing murder or while disposing of the body of deceased Neeraj

Grover. The entire case of prosecution solely depends on circumstantial

Judgment -S.C.630-08 -38- Exh.341

evidence. The prosecution is relying on various circumstances such as,

relation of the deceased with accused No.1; concern of accused No.1

with flat No.201; visit of deceased Neeraj Grover to flat No.201 on

652008; sudden visit of accused No.2 to Mumbai, particularly to flat

No.201, and various recoveries, which according to the prosecution were

made either at the instance of accused No.1 or accused No.2.

32. Before analyzing factual aspect of the case, let me state that

for a crime to be proved, it is not necessary that the crime must been

seen to have been committed and must, in all circumstances be proved

by direct ocular evidence by examining before the court, those persons

who had seen its commission. The offence can be proved by

circumstantial evidence also. The principle fact of or factum probandum

may be proved indirectly by the means of certain inference drawn from

the factum probans, that is, evidentiary facts. To put it differently,

circumstantial evidence is not direct to the point in issue, but consists of

evidence of various other facts, which are so closely associated with the

facts in issue, which taken together form a chain of circumstances, from

which the existence of principal facts can be legally inferred or

presumed.

33. It has been laid down by the Apex Court in series of the

Judgment -S.C.630-08 -39- Exh.341

judgments that where a case rests squarely on circumstantial evidence,

the inference of guilt of the accused can be justified, only when all

incriminating facts and circumstances are found to be incompatible with

the innocence of accused or the guilt of any other person. The

circumstances from which an inference as to the guilt of the accused is

drawn, have to be proved beyond reasonable doubt and have to be

shown to be closely connected with the principal fact sought to be

inferred from those circumstances.

34. In the case of Padala Vira Reddy v/s. State of Andhra

Pradesh reported in 1991, S.C.C. Cri. 407, the apex court laid down

that where a case rests upon circumstantial evidence, such evidence must

satisfy the following test:

1. The circumstances from which an inference of a guilt is sought to

be drawn must be cogently and firmly established;

2. Those circumstances should be definite tendency unerringly

pointing towards guilt of accused;

3. The circumstances, taken collectively, should form a chain so

complete that there is no escape from the conclusion that in all

human probability the crime was committed by accused and non else;

4. The circumstantial evidence in order to sustain conviction, must

Judgment -S.C.630-08 -40- Exh.341

be complete and incapable of explanation of any other hypothesis than

that of guilt of the accused and such evidence should not be only

consistent with the guilt of the accused but should be inconsistent with

his innocence.

35. Keeping the aforesaid principals in mind, let us see whether

the prosecution could prove the case as alleged. As prosecution is

relying on various circumstances, therefore, for convenience, I will

discuss those circumstances caption wise .

● Relation between accused No.1 and deceased Neeraj:

36. For proving motive as well as conspiracy, rather murder of

Neeraj Grover by the accused persons, the prosecution has come with the

case that there was relation between accused No.1 and deceased

Neeraj. According to the prosecution, the relation between accused No.1

and Neeraj were intimate. It appears from crossexamination; statement

of accused No.1 u/s. 313 of Cr.P.C.; and submissions of ld. advocate for

the accused No.1; that accused No.1 met Neeraj only once and the

accused No.1 disputes even well acquaintance with deceased Neeraj. For

proving the intimate relationship, between the deceased and accused

No.1, the prosecution is relying on version of Nishant Lal (P.W.9) and

Shantanu Agarwal (P.W.45) .

Judgment -S.C.630-08 -41- Exh.341

37. It is not in dispute that Neeraj was engaged in the firm or

company, which was producing the TV serials. By version of Amarnath

Grover (P.W. No.1) father of deceased, Nishant Lal (P.W. 9), Nishant

Grover (P.W. No. 33) and Shantanu Agarwal (P.W.46) it has been brought

on record that Neeraj was working in a Creative team of Balaji Telefilm

Ltd. and thereafter with “Synergy Altab”.

38. The version of Nishant lal (P.W.9) goes to show that he was

knowing Neeraj Grover since one and half year, prior to the incident. It

has also been brought on record that this witness, along with other

colleagues of their profession, i. e. production of TV Serials, used to

meet frequently at Cafe Coffee Day and Neeraj was also one of them. It

is deposed by this witness that on 152008, he met Neeraj at Cafe Coffee

Day. Neeraj informed him that he joined Synergy from 152008.

Neeraj had stated to him in past that he was trying for a role for Mariya,

the accused No.1, in TV serial. After some time accused No.1 Mariya

came there; Neeraj introduced Mariya to him. Neeraj also stated to him

that accused No.1's audition has taken place for “Mahabharat serial”

while he was working with Balaji Telefilm. Likewise, through this

witness, meetings of Neeraj Grover and Mariya in Cafe Coffee House

with him on 252008, 452008 and 552008, and in the Ultimate Pub

Judgment -S.C.630-08 -42- Exh.341

on 352008, have been brought on record. This witness also saw Neeraj

and Maria while kissing each other in “Ultimate Pub”. Further version

of this witness goes to show that on the request of Neeraj, he allowed

him to stay in his house with accused No.1 on 552008. (P.W.46) has

deposed that deceased Neeraj introduced accused No.1 to him on

2942008 and prior to that he requested him to look for a role for a girl

by name Mariya.

39. It is vehemently submitted by ld. advocate Sharif Shaikh on

behalf of the accused No.1 that there are various omission in the

evidence of the (P.W.9) in respect of Ultimate Pub and other meetings. I

have gone through the crossexamination, on which the ld. advocate for

the accused No.1 is heavily relying. Ld. advocate pointed to me Para 11

12 and 13 of deposition of (P.W.9). It appears that there are some

omissions in respect of words “Phone call”, “break”, “went to another

table”, “avoiding to talk”, so from these omissions, it cannot be said that

witness has not stated the incidences before police. Rather his statements

goes to show that he has stated all the incidence broadly. Mere adding of

some words in deposition which elaborate the incidences, it can take

away his deposition on the point of relation between accused No.1 and

Neeraj. Rather version of this witness goes to show that the relation

Judgment -S.C.630-08 -43- Exh.341

between accused No.1 and deceased Neeraj were not only knowing each

other but they were well acquainted with each other and even they

resided together in his flat on 552008.

40. Apart from the testimony of above said witnesses,

prosecution is also relying on call detail report of mobile 9920944083.

This subscriber detail (Exh. 207) as well as call detail report of Mobile

no. 9920944083 (Exh.207A) have been brought on record through

(P.W.42) Changdeo Haribhau Godse, Nodal officer of Voda Phone.

Initially the accused No.1 disputed her subscription on the mobile

No.9920944083. But subscriber detail goes to show that this number

belongs to accused No.1, coupled with the admission in the statement

u/s. 313 of Cr.P.C. the accused admitted that mobile No.9920944083

belongs to her. The call detail report of mobile No. 9920944083 which

is proved now, to be of accused No.1, goes to show that on 552008,

there are various calls between the mobile Number of accused No.1 and

mobile No.9967483634, which according to the prosecution is number

of Neeraj Grover. To prove this number, the prosecution has also

examined Sunil Tiwari (P.W.43), Nodel Officer of Bharti Airtel Co. The

covering letter (Exh.216) also goes to show that mobile No.9967483634

belonged to Neeraj Grover. The prosecution has proved that there were

Judgment -S.C.630-08 -44- Exh.341

various exchanges of calls between Accused no.1 and Neeraj on

5.5.2008.

41. The defence of the accused No.1 is that she was only

knowing deceased Neeraj. But from the testimony of Nishant Lal (P.W.9)

and Shantanu Agarwal (P.W.46) coupled with various calls between

accused No.1 and deceased Neeraj on 552008, goes to show that there

was well acquaintance between accused No.1 and Neeraj and deceased

Neeraj was involved in providing foothold to the accused No.1 in

entertainment industry. So, this fact is proved by the prosecution that

there was well acquaintance rather some sort of intimacy between

accused No.1 and deceased Neeraj.

● Concern of accused No.1 with flat No.201 'B' Wing Dhiraj

Solitare:

42. The another circumstance, on which the prosecution is

heavily is relying is the concern of accused No.1 with flat no.201, B

Wing, Dhiraj Solitare. According to the prosecution, on 652008,

accused No.1, took flat No.201 in B Wing of Dhiraj Solitare building

through Sundesh Shirke (P.W.3) and Dhiraj Manishkumar Shukla

(P.W.15). This fact is disputed by the accused No.1. From cross

examination, it appears that the accused No.1 claims to have possession

Judgment -S.C.630-08 -45- Exh.341

of flat No.201, from 1852008 and prior to that she had no concern with

flat No.201. To prove factum of possession of flat No.201 from 652008,

with the accused No.1, the prosecution is relying on testimony of various

witnesses. Star witness appears to be Mayuri Prajapati (P.W.2), Sandesh

Shirke (P.W.3) and Dhiraj Kumar Shukla (P.W.15).

43. According to Mayuri Prajapati (P.W.2), she is the resident of

flat opposite to flat No.201 in 'B' wing, Dhiraj Solitare building. This

factum is not disputed by the defence anywhere. According to her

testimony, she is residing in the said flat since August, 2007. She is

acquainted with accused no.1, as accused No.1 resided on the same

floor for two months in September 2007. Further version of this witness

goes to show that on 552008, the accused No.1 told her that she is

shifting to flat No.201. This witness met accused No.1 on 652008 in

Hypercity mall. Accused No.1 purchased household items, then they

came to Dhiraj Solitare building and went to their respective flats.

According to her, accused No.1 went in flat No.201, and after some time,

she used bathroom of flat of this witness. Further version of this witness

goes to show that on 852008, she had also visited flat No.201 to meet

accused No.1.

44. From the mouth of Sundesh Shirke (P.W.3) Estate Agent and

Judgment -S.C.630-08 -46- Exh.341

property consultant, it has been brought on record that on 552008, he

showed the flat No.201, to accused No.1 through Dhiraj Shukla

(P.W.15). However, flat was not cleaned therefore, accused no.1 did not

take possession on 552008. On 652008, he visited flat No.201 and

got the said flat cleaned with the help of labourer. The accused No.1

came to the flat at about 1 p.m. She verified the flat and this witness

delivered key to her and accordingly, accused No.1 took possession of the

flat.

45. Dheeraj Kumar Shukla (P.W.15) has corroborated the version

of Sandesh Shirke (P.W.3). According to him, accused No.1 had been to

his office on 552008 in search of flat. He then contracted Sandesh

Shirke (P.W.3), Sundesh Shirke showed flat to accused No.1 on

552008. It is further deposed by this witness that on 652008 at the

request of accused No.1, he asked Sandesh Shirke to be present in the

flat No.201 for giving possession to her.

46. The ld. advocate for the accused No.1 vehemently submitted

that there are some omission in the deposition of Mayuri Prajapati

(P.W.2). Ld. advocate for the accused No.1 submitted that material

question of deposition is not appearing in her statement dt. 1052008,

therefore, this cannot be believed. The omission which has been brought

Judgment -S.C.630-08 -47- Exh.341

on record in the deposition of this witness, is in respect of occurrence

dated 752008 and not prior to that, which I will deal with the

respective circumstance . Rather, there is no denial to her version that

on 652008, she saw that accused No.1 went inside flat No.201 of Dhiraj

Solitare building.

47. Another point which the ld. advocate for the accused No.1

tried to put before me is of Leave and License agreement (Exh.58).

According to him, as per prosecution story, Mariya accused No.1, signed

the agreement (Exh.58) on 1852008 and that time the accused no. 1

was in illegal custody of the police. Sum and substance of the argument

of the ld. Advocate for accused no.1 is that the agreement of flat is

manufactured by the police and signature of accused no. 1 was taken in

custody on 18.5.2008. Bare perusal of challan attached to

Agreement(Exh.58), which is paid for Franking of stamp duty for Leave

and License agreement, goes to show that it was paid on 1252008 and

bears, the name of the accused No.1 . So, it is the date, which is prior to

1852008, the document speaks itself that the Franking on the

agreement was done on 1252008, which rules out the possibility of

fabrication or manufacture at the instance of police on 18.5.2008. Bare

perusal of agreement (Exh.58) also goes to show that the said flat was

Judgment -S.C.630-08 -48- Exh.341

given on leave and license from 652008 till 532009. Ld. advocate for

the accused No.1 further submitted that the 11 cheques, which according

to the Sandesh Shirke and Dhiraj Shukla were given by accused No.1 as

a security, have not been produced by the prosecution. I do not think

that mere nonproduction of those cheques will be fatal to the

prosecution. So, from the testimony of Mayuri Prajapati (P.W.2), who

appears to be neighbor friend of accused No.1, as well as Sandesh Shirke

(P.W.3) and Dhiraj Shukla (P.W.15). It has been brought on record that

the accused No.1 got possession of flat No.201, on 652008. Their

version is consistent amongst each other regarding concern of accused

No.1 with flat no. 201 from 652008.

48. Not only that, there is also version of Nishant Lal (P.W.9),

who had been to flat No.201 on 752008, after they got news of missing

of Neeraj. Apart from it, the subscription Form for mobile connection of

Voda phone (Exh. 212 ) has been brought on record through (P.W.42),

which also goes to show that residence of accused No.1 as flat No.201,

Dhiraj Solitare building. It is pertinent to note that the subscription

Form was also applied on 552008, when she determined to take the

flat. Though it has been brought on record, in crossexamination that

the address furnished on subscription Form Exh. 212 has not been cross

Judgment -S.C.630-08 -49- Exh.341

checked by Voda phone company, but this fact will not take away the

case of prosecution, particularly when nothing has been brought on

record that Subscription From (Exh.212) has been prepared at the

instance of police. Pankaj Shah (P.W.30), Ld. M.M. who recorded the

confessional statement of the accused No.1, has also mentioned the

address on confessional statement of accused No.1 as Flat No.201,

Dhiraj Solitare, as her residence.

49. It has been further submitted by ld. advocate for the accused

No.1 that the Leave and License agreement (Exh.56) has not been signed

by the witness. This will be of no consequence. It may be relevant in

Civil proceedings but not in Criminal proceedings, particularly when

there is testimony of the witnesses regarding possession of accused No.1

over flat No.201 from 652008. Their version is further corroborated by

the date mentioned in the Agreement (Exh.58) Subscription From of

accused No.1 Exh.212.

50. Apart from it, there is version of Kamlesh Jain (P.W.16) that

in his diary (Art.38), the accused No.1 has written her address of

residence on 852008. The handwriting (Exh.98) in Order book

(Art.38), has not been disputed by accused No.1. So, the entry (Exh.98),

is in the handwriting of accused No.1. What has been disputed by the

Judgment -S.C.630-08 -50- Exh.341

accused No.1 that Entry (Exh.98) in respect of address of flat No.201,

Dhiraj Solitare building, written by her at the instance of the police

while she was in custody after 1852008. I have gone through Order

book (Art.38) and particularly, Entry (Exh.98), which is proved by Dilip

Ahiwale (P.W.40), Handwriting Expert, in the handwriting of accused

No.1. It is also admitted by accused No.1, as her handwriting. The

various entries in order book (Art.38) are made as per sequence of

dates. The relevant entry (Exh.98) written by accused No.1 also appears

to be in proper sequence of dates, for the simple reason that the writing

(Exh.98) appears to be normal writing and does not show any

conjunction to conclude that it is incorporated latter on, in between two

entries to show sequence of dates. Therefore I do not find any force in

arguments of the ld. advocate for the accused No.1 that entries were

made latter on, while accused No.1 was in custody of police. Though the

accused No.1 has examined her sister to show that accused No.1 was

residing in the house of Mr. Deepak prior to 652008 and even on

652008. But the above said material is sufficient to discard the version

of Maria Veronica Susairaj (D.W.3), particularly when there is version of

Nishant Lala that on 552008, accused No.1 stayed with Neeraj at her

flat. Apart from it, accused No.1 did not examine Deepak to show that

Judgment -S.C.630-08 -51- Exh.341

accused No.1 stayed in his house on 652008. The abovesaid material

discussed above, goes to only one conclusion that, the accused No.1 was

having concern with flat No.201 on 652008, rather she was in

possession of flat No. 201 of Dhiraj Solitare building.

● Visit of deceased Neeraj to flat No.201 on 652008:

51. According to the case of prosecution, to eliminate Neeraj,

accused No.1 called him in her flat on 652008; on her call, deceased

Neeraj visited flat No.201 and stayed there for whole intervening night

of 652008 and 752008. For this purpose, the prosecution is relying

on version of Mayuri Prajapati (P.W.2), neighbor friend of accused No.1

as well as Nishant Lal (P.W.9). The prosecution is also relying on call

detail report of deceased Neeraj (Exh.217) as well as injury certificate

(Exh.100). Let us see whether the prosecution could prove the presence

of Neeraj in flat No.201, on 652008.

52. Mayuri Prajapati (P.W.2), on whose evidence the prosecution

is heavily relying, appears to be the star witness to establish that Neeraj

had been to flat No.201 on 652008. Mayuri Prajapati (P.W.2) has

deposed on this aspect that after some time, accused No.1 rang her bell,

she used the bathroom of her flat and after sometime she left. At about

10.30 p.m. she opened the door of her home, which is opposite to flat

Judgment -S.C.630-08 -52- Exh.341

No.201, she saw a man was there in corridor, 20 ft. away from her door.

Accused No.1 introduced her with the said man as Neeraj Grover.

53. It has been brought in crossexamination that she was not

shown any photographs of Neeraj by the police and she was not knowing

Neeraj prior to 652008. It is submitted on behalf of ld. advocate for the

accused No.1 that it is virtually impossible for a person to remember the

name of person who was introduced to him for first time. It is not

always necessary that a person will forget name of a person, who has

been introduced to him, but however, as such, it is doubtful whether she

was able to remember. Therefore, some corroboration is required to

believe the version of (P.W.1) and it will be risky to rely on her sole

version without any corroboration.

54. To corroborate her version, the prosecution relies on call

detail report of deceased Neeraj Grover. As such, the mobile no.

9967483634 is proved as number of Neeraj Grover. It has been brought

on record that accused No.2 was not knowing deceased Neeraj prior to

652008. The prosecution claims that mobile No. 9388920779 is of

accused No.2. Though initially, the accused No.2 denied for having his

number as 9388920779. However, through Rajesh Sampatrao Gaikwad,

(P.W.41), Nodal officer of Reliance company, the subscription Form of

Judgment -S.C.630-08 -53- Exh.341

accused No.2 (Exh.200) has been brought on record. Likewise, the

subscriber detail (Exh.199 colly.) shows that mobile No. 9388920779 is

registered in the name of accused No.2. In the statement u/s.313 the

accused No.2 has also admitted to have mobile No. 9388920779. The

accused No.2 denied to have any concern with Neeraj Grover prior to

652008. In this background, the call detail report of Neeraj Grover

(Exh.218), goes to show that there were exchange of call between

mobile Accused No.2 and deceased Neeraj at about 11.39 p.m. and 11.54

p.m. in the night of 652008. As per prosecution case as well as

statements of the accused, rather deposition of Ajay Shyam Pandya

(P.W.27), Mrs P.A. Umadevi Executive of AirIndia Kochi, goes to show

that accused No.2 was at Kochi during the aforesaid two calls. It has

been brought on record that the accused No.2 is fiance of accused

No.1 and they were intending to marry. So, accused No.1 and 2 had

concern with each other. The purpose of calling to the mobile of

deceased Neeraj, by accused No.2 was, only to have talk with accused

No.1, which goes to show that deceased Neeraj and accused No.1 were

together at that time. The prosecution has also brought on record the

Receiving Tower ID of Voda phone, of the above said calls as 15231

which shows the location of the said Tower near flat no. 201.

Judgment -S.C.630-08 -54- Exh.341

55. Apart from it, there is version of Nishant Lal (P.W.9) that on

652008, he and other friend, met as usual at Cafe Coffee shop, but

Neeraj was not there. Namrata who was with this witness, at that time

she received call from deceased Neeraj. They called Neeraj to join them,

but he stated that that accused No.1 has called Neeraj as she has taken a

new house. It is further deposed by this witness that Nisha also made

phone call to Neeraj stating that they had cooked food and invited him

for dinner but Neeraj stated that he cannot come as he was in the house

of accused No.1. This witness and another friend also talked with

accused No.1. Not only this, his further version, goes to show that on

next day, Maria accused No.1, has called this witness at about 11.30

a.m. and told him that Neeraj had left her house at about 1.30 a.m. and

has forgotten his mobile in her house. While, on again receiving phone

call of this witness, the accused No.1 further stated that to inform

Neeraj that he had left her house stating that he is going to Nisha's home.

56. It is submitted on behalf of the ld advocate for the accused

No.1 that (P.W.2) and (P.W.9) cannot be believed as there are omissions in

their statements. He took me to the omission of (P.W.2) wherein, while

giving statement this witness has not stated Surname of deceased and

only stated Neeraj. I do not think that this is a material contradiction to

Judgment -S.C.630-08 -55- Exh.341

disbelieve her testimony. Likewise, omission in respect of “taking new

house by accused No.1” and “ accused No.1 stated to this witness to

inform Neeraj that he had left his mobile at her house” if separated

from his evidence, even then, his evidence points that the deceased

Neeraj was at the house of accused No.1 in the night of 652008. The

further version of this witness “ while in the night of 7.5.2008, she came

down from Dhiraj Solitare, the accused No.1 had mobile phone of

Neeraj.” also goes to show that Neeraj was with accused No.1 on

652008. There is no reason to disbelieve this witness. As among all

friends, deceased Neeraj had good rapport with this witness. Some

discrepancy in his evidence, which is normal in nature, cannot be a

ground to discard his evidence, therefore is to be ignored.

57. So, the version of Mayuri Prajapati (P.W.2) is corroborated by

calls made by accused No.2, on the mobile of deceased Neeraj as well as

version of Nishant Lal (P.W.9). Not only that, the missing complaint

(Exh.138), which was promptly lodged by Nishant Grover, (P.W.33), in

the intervening night of 752008 and 852008, contains that Neeraj

had been to the house of accused No.1. in Dhiraj Soltare Building,

Malad, also fortify the claim of prosecution. This complaint, which was

promptly lodged, speaks itself and an entry of which also reflects in

Judgment -S.C.630-08 -56- Exh.341

station diary of Malad police station dated 852008. This rules out the

possibility of any ambiguity regarding presence of Neeraj Grover in

Dhiraj Solitare building on 653008.

58. Not only the version of PSI Indap (P.W.34) and Nishant

Grover (P.W.33) goes to show that the accused no. 1 had mobile of

Neeraj Grover, which she gave to PSI Indap(P.W.34), who in turn gave it

to Nishant Grover (P.W.33). Their version is also corroborated by the

station dairy entry dated 9.5.2008 which is produced on record.

59. The version of the prosecution witnesses are consistent on

this point and corroborate each other. Their evidence is also corroborated

by documentary evidence such as call detail report of Neeraj Grover,

Missing complainant (Exh.138) and Station dairy entry of mobile

(Exh.142 ). Hence I have no hesitation to conclude that Neeraj had been

to flat no.201 in the night of 6.5.2008.

● Visit of accused No.2 to flat No.201 in Dhiraj Solitare

60. Next circumstances on which the prosecution is relying is

visit of accused No.2 to flat No. 201 of Dhiraj Solitare building in the

morning of 752008. It is the case of prosecution that accused Nos.1

and 2 hatched conspiracy by talking on their respective mobiles to

eliminate Neeraj Grover and in pursuant to criminal conspiracy, the

Judgment -S.C.630-08 -57- Exh.341

accused No.2 immediately flew to Mumbai from Cochi and marked his

presence in flat No.201 of Dhiraj Solitare building at about 7.30 p.m. For

this circumstances, the prosecution is relying on version of (P.W. 6)

Kundan Jha as well as the version of (P.W.2) Mayuri Prajapati and

Nishant Lal (P.W.9), for presence of accused No.2 in flat No.201.

61. The accused no.2 has denied the visit of accused No.2 at any

time in Dhiraj Solitare building. From crossexamination, statement u/s.

313, and the version of the accused No.2, it appears that accused No.2

took defence of alibi. According to him, though he flew to Mumbai, in

the intervening night of 652008 and 752008, but he never visited

Dhiraj Solitare building. It was decided between him and accused No.1

that they will meet at Inorbit Mall and therefore, he directly went to

Inorbit Mall at about 10 a.m. and about 12 noon he met the accused

No.1 and her sister. They spent entire day together and in the evening

after separating himself from accused No.1 and her sister, he took

shelter for night in one hotel at Link road Malad. On the next day,

after meeting his uncle, he returned to Cochin and joined his service.

Let us scrutinize the evidence of prosecution as well as version of

accused No.1 to decide whether accused No.2 visited flat No.201 on

752008.

Judgment -S.C.630-08 -58- Exh.341

62. Kundan Jha (P.W.6), who was watchman of Dhiraj Solitare

building, has deposed that in the morning of 752008, he was at

counter. At about 7.30 p.m. a boy about 2526 years came near the

counter, he intended to go in the building. Witness asked him to write his

name in the register. The said boy did not write his name in the register.

It is further deposited by this witness that the said boy stated that he was

going to flat No.201, and the person residing in the said flat is his

relative. Thereafter the said boy entered in the lift and went upstairs.

This witness identified the said boy as accused No.2. The witness also

claims that he identified accused No.2 in T.I. Parade dated 572008.

( As the court time is over, hence case is adjourned to 2862011)

(Dictation of judgment continued on 2862008.)

63. Mayuri Prajapati,(P.W. 2) occupant of flat No.203, opposite to

flat No.201 of 'B' wing, Dhiraj Solitare Building, has also deposed

regarding presence of accused No.2 to flat No.201. According to this

witness, she saw accused No.1 outside her flat on 752008 at about 4.30

p.m. Accused No.1 stood near door of flat No.203. Accused No.2 was

with accused No.1. Accused No.1 stated that they are going out and left.

It is further deposed by this witness that on 852008, she noticed that

the door of flat of accused No.1 was open and accused No.1 was sitting

Judgment -S.C.630-08 -59- Exh.341

with accused No.2. Mayuri (P.W.2) went to talk to them. A painter

arrived there. Accused were talking to said painter regarding painting

their flat, therefore, Mayuri (P.W.2), left.

64. It is submitted on behalf of the ld. advocate for the accused

No.2, that Mayuri (P.W.2) cannot identify accused No.2 as she did not

take part in TI Parade. Let me state here that it has been brought on

record in her examination in chief itself, that when accused No.1

visited Mumbai in December 2007, accused No.1 came to her flat with

a man and introduced said man to her as Emile, her fiance. Accused

no.1 requested this witness to allow accused No.1 to stay in her flat for

one day. It is also brought on record that this witness permitted them to

stay in her flat and she went to reside in house of her motherinlaw. So,

from this version of Mayuri Prajapati (P.W.2), It is manifest that she was

knowing accused No.2 from December, 2007. Another point, which ld.

advocate for accused No.2 vehemently submitted before me that incident

of December 2007 is omission. Likewise, incident of her meeting with

accused Nos. 1 and 2 on 752008, and on 852008 are omissions,

therefore, it cannot be read in evidence. I have gone through cross

examination as well as statement of this witness recorded u/s. 161 of

Cr.P.C. It appears that two statements of this witness were recorded;

Judgment -S.C.630-08 -60- Exh.341

firstly on 1052008 and secondly on 2462008. Though there is no

whisper of the aforesaid three incidents, in statement dated 1052008,

but these three facts are finding place in the subsequent statement dated

2462008. It is worthwhile to mention here that the crime of murder

was detected on 2152008 and the statement of this witness dated

1052008 was recorded in respect of missing inquiry of Neeraj Grover.

So, it is but natural conduct of the witness that he/she will state the fact

relevant to the inquiry only. But when the crime was detected, then

obviously, the tendency of the witness would be stating of all relevant

facts to the crime for which statement is given. As such, the statement

dated 1052008 of this witness was only in respect of missing inquiry,

therefore, these facts deposed by the witness, are not finding place in

the statement dated 1052008, but they are verywell finding place in

the statement dated 2462008, which is not in dispute. Therefore, these

three incidents deposed by the witness, cannot be treated as an omission.

Not only that, this witness was not crossexamined by accused No.2.

The accused no. 2 did not deny to this witness about his presence in flat

no. 201.

65. Apart from this, there is version of Nishant Lal (P.W.9). It has

been brought on record through Nishant Lal that when on 752008, in

Judgment -S.C.630-08 -61- Exh.341

late evening, he had been to Dhiraj Solitare building for taking accused

No.1 to Malad police station for lodging missing complaint. Accused

No.1 came down. He and his friends requested her to come with them

for lodging missing complaint, then accused No.1, for changing her

clothes, took Nishant Lal and other friends to her flat No.201. She

introduced accused No.2 to this witness. This witness has also identified

the accused No.2 in the dock. This witness has also identified the

accused no. 2 in Test Identification Parade dated 5.7.2008.

66. Satish Kumar Dayaprasad Singh (P.W.10), who was working

as Security guard with Honest Security Services since 1032008. He was

deputed as a Security guard in May 2008, at 'B' Wingh Dhiraj Solitare

building. On 752008, at about 8.30 a.m. he joined his duty at 'B'

Wing . At about 4.30 p.m. on 752008, he went to tea stall for having

tea. He returned to the building within 510 minutes. He found a

Santro car of grey colour, parked in 'B' Wing near the lobby. He also

deposed that accused No.1 was staying in the flat No.201. After

returned from tea stall, he noticed accused No.1 along with one boy aged

about 2527 years, coming to the Santro car. He identified accused No.2

in the dock as the said boy who was accompanying the accused No. 1.

Both came from the building, accused No.1 and 2, each had big rexin

Judgment -S.C.630-08 -62- Exh.341

bag with them. They put both bags in dickey of Santro car. They went

inside the building and again returned within 5/10 minutes with one big

bag. Accused No.1 was holding the bag from one side and accused No.2

from the other side. They kept the bag in the rear side of Santro car.

Accused No.1 then sat on driver's seat and accused No.2 on adjacent

seat. So, according to this witness also, he noticed presence of accused

No.2 in Dhiraj Solitare. So far as evidence of this witness with regard to

taking bag and putting them inside Santro car will be discussed latter on,

as I am concerned right now in respect of presence of accused No.2 at

the flat No.201. This witness has also identified the accused No.2 in

Test Identification Parade(TIP) conducted by Sharad Vichare (P.W.23).

67. It has been also argued on behalf of accused No.2 that the

alleged test identification parade has not been held and the accused

No.2 was directly shown to the witnesses. In support of these

contentions, accused No.2 has examined himself and (D.W.14) Deepak

Jaidevsingh Malik and (P.W.16) Manish Naresh Thakur. Let us first see

what the prosecution has brought on record in respect of test

identification parade.

68. The prosecution has examined (P.W.23) Sharad

Vichare(S.E.O.) in respect of TI parade dated 762008 and 572008.

Judgment -S.C.630-08 -63- Exh.341

This witness has deposed in respect of TI parade dated 762008, that

he conducted TI parade of accused No.2. According to him, after

selecting panchas, he along with witnesses, Satish Dayaprasad Singh

(P.W.10), and Dheeraj Kumar Shukla (P.W.15) panchas with PSI Dilip

Deshmukh went to Aurthur Road jail and he entered first inside the jail.

The witnesses and Dilip Deshmukh were outside the jail. The witnesses

were called one by one and they identified accused No.2. The evidence

in respect of TI parade dated 572008 of this witness is on the same line

and according to this witness, Kundan Ravindra Jha (P.W.6), Kamlesh

Jain (P.W.16) and Amarbahadur Yadav (P.W.22) identified the accused

No.2 .

69. The testimony of this witness is also corroborated by Kundan

Jha (P.W.6) and Satish Singh (P.W.10) in their deposition. The ld.

advocate submits that TI Parade dated 572008 is never held. The

accused examined Deepak Malik (D.W. 14)and Manish Thakur (D.W.16) .

They are shown as dummy in the TI Parade dated 572008. Deepak

Malik (D.W. 14) who was coprisoner along with accused No.2 in his

barrack. Likewise, Manish Thakur (D.W.16) was also coprisoner with

accused No.2 in same barrack. Both of them have deposed that they did

not take participation in TI parade dated 5072008, wherein as per

Judgment -S.C.630-08 -64- Exh.341

prosecution Kundan Jha (D.W.6) identified accused No.2. Taking help of

deposition of these witnesses and version of accused No.2 on oath, the

ld. advocate for the accused No.2 submits that the TI Parade dated

572008 never conducted. The accused No.2 who has examined

himself on oath, has deposed that during custody in Aurthur Road jail, he

was called inside the office of jailor and was shown to some persons with

instructions to them to identify the accused in the court.

70. Let me state the fact that Deepak Malik (D.W.14) and

Manish Thakur (D.W.16) are under trial prisoners and they are charged

with serious offence. It is pertinent to point out here that as per record,

the accused No.2 was transferred to Taloja jail from Aurthur road jail on

the point of security against which, accused No.2 objected and gave his

written objection in writing at (Exh.136), pursuant to which show cause

notice was issued to Superintendent of Aurthur Road jail, wherein the

name of Manish Thakur (D.W. 16) is appearing. According to the

explanation of jailor, Accused No.2 and this Manish Thakur (D.W. 16)

are close friend of Abu Salem and in view of attack on Abu Salem by his

opponents, there is apprehension that there may be attack on accused

No.2 and Manish Thakur (D.W. 16). So, this explanation goes to show

that there is close relationship between accused No.2 and (D.W.16). So

Judgment -S.C.630-08 -65- Exh.341

far as Deepak Malik (D.W.14) is concerned, he was also coprisoner

with accused No.2. As against this, there is categorical version of SEO

Sharad Vichare (P.W. 23) that TI Parade on 562008 was held in Aurthur

Road Jail, coupled with the fact that the document Exhs.227, Entry

register of Aurthur Road jail, which is produced by the accused No.2

himself, goes to show that Sharad Vichare (P.W.23), panchas along with

Kundan Jha (P.W.6) as well as Dhiraj Shukla (P.W. 15), entered in

Aurthur Road Jail. I am unable to accept the arguments of the ld.

advocate for the accused that if there was no intention to conduct the TI

Parade of accused No.2 on 572008, then why the panchas were taken

to Aurthur Road Jail, and it was easy for Sharad Vichare (P.W.23), to

prepare memorandum of TI parade without accompanying with the

panchas. After weighing the evidence of Deepak Malik (D.W.14), Manish

Thakur (D.W.16) and accused No.2 on one part and on other hand the

version of (P.W. 23) Sharad Vichare, (P.W.6) Kundan Jha and (P.W.15)

Dhiraj Shukla, who have also deposed about TI Parade dated 572008.

The defence brought by the accused No.2 regarding not holding of TI

Parade on 572008, does not seem to be probable in view of testimony

of prosecution witnesses, which was also corroborated by TI Parade

panchnama (Exh.37) as well as Jail entry Registered(Exh.227) produced

Judgment -S.C.630-08 -66- Exh.341

by the the accused no.2 himself.

71. TI parade is also challenged on the ground that the Sharad

Vichare (P.W.23) resides within the jurisdiction of LT Marg police station

and instead of this he is selected to conducted TIP, only giving support

to false case of the prosecution. But I do not find any substance in this

argument of Ld. advocate for the accused No.2 and there is no hard and

fast rule that a SEO of particular police station shall conduct TI Parade.

Looking to the version of Sharad Vichare (P.W.23), it appears that he has

conducted various test identifications parades. With the experience of

this witness, appears to be the obvious reason for Investigation officer

as abundant precaution, to select this witness as SEO to conduct TI

Parade. It is further argued that prosecution has not taken precaution

that the accused No.2 that the witnesses had no opportunity to see the

accused No.2 after their first alleged meeting till the TI parade was

held. According to him the burden lies on the prosecution to prove this

fact also. In this context the Ld. advocate for the accused seeks to rely

on judgment of Allahabad High court, in the case of Ashrafi Vs. State

reported in AIR 1961 Allahabad page 153, wherein it is held that :

“ It is the duty of the prosecution to show that from the time of the arrest of the accused person to the time of his admission into the jail, precautions were taken to

Judgment -S.C.630-08 -67- Exh.341

ensure that he was not seen by any outsider. Once evidence has been led to show this, the burden shifts on the accused to show otherwise. It is invariably assumed at the Bar that in such matters the police do not play fiar but instead show the accused to the witness before his identification, either by detaining him for a number of of days and then formally arresting him or by calling the witness to the policestation after the arrest and showing him before he is sent off to the jail.”

While disagreeing with the case, reported in Baliram Tikaram V. Emperor, AIR 1945 Nag. it has been observed that:

“With the utmost respect to their Lordships, we venture to point out that this a sentiment, not law. There is no presumption that police officers act dishonestly see Dwarka V. State, AIR 1954 ALL 106, where a witness gives evidence on oath the presumption is that he is speaking a truth. If therefore, the prosecution have led evidence to show that from the time of arrest of an accused to the time of his admission into the jail precautions were taken to ensure that he was not seen by any outsider and if the identifying witnesses deposit that they never saw him at any time between the crime and the identification parade, the burden lying on the prosecution has been discharged. It is then for the accused to establish that he was shown. The law does not require him to do so affirmatively; it is sufficient if hecan succeed in creating a reasonable doubt in the mindof the court.

Direct evidence may not be available, but he maydischarge his burden by showing for example that heand the witnesses were present in the police station atthe same time or that he was marched through the village of the witnesses or that the witnesses were presentat the office of Prosecuting Inspector when his jail warrantwas being prepared. But if he fails to rise a reasonabledoubt, the law enjoins that the prosecution evidence on

Judgment -S.C.630-08 -68- Exh.341

the matter be accepted. In dealing with such questions itis often ignored that the accused is a total stranger tothe witnesses and that save for exceptional cases he isa stranger to the police too, hence, neither the witnessesnor the police have any motive for incriminating himfalsely.”

72. I have gone through this judgment, rather it was held that

while dealing with the question of TI Parade, it is often ignored that the

accused is total stranger to the witnesses and police too, hence neither

the witnesses nor the police have any motive for incriminating him

falsely. So,in this case also, the witnesses were stranger and it has not

been brought on record that the police have any motive to implicate the

accused No.2 in false case, hence judgment cited by the ld advocate for

the accused rather goes to support the contention of ld. APP for the

State. Rather MidDay news paper dated 1.6.2008 (Exh.310A) which has

been brought by the accused No.2 himself, goes to show that the accused

no.2 is shown in veil.

73. It has been further pointed out that the statements of the

witnesses were recorded so late, and no explanation has been brought on

record by the prosecution by not examining the witnesses at the earliest

opportunity. In this context, the ld. advocate for the accused No.2 seeks

to rely on judgment of Apex court. In the case of State of U.P. V/s Satish

Judgment -S.C.630-08 -69- Exh.341

reported in 2005 SCC Cri. (642) wherein Apex court has observed that

“ If no explanation is asked to I.O. then no adverse

inference can be drawn. If however, opportunity

being offered, the I.O. failed to explain his version,

has to be discarded.”

74. According to the ld. advocate for the accused No.2, (P.W.47)

I.O. has been asked about publishing of the name in newspaper

(Exh.301,302 and 303), he showed his ignorance about the news.

Therefore, according to the ld. advocate for the accused No.2, the delay

in recording the statement of the witnesses is fatal to prosecution. I have

gone through the entire crossexamination of I.O. Raorane (P.W.47). No

explanation has been sought by accused No.2 as to why the statements

of the witnesses were recorded after long time. So, this judgment will

not be helpful to the accused No.2. Even otherwise unless prejudice is

shown to the accused that cannot be the ground for rejecting the

testimony of these witnesses.

75. Now, reverting to the facts of the case, there is version of

Kundan Jha(P.W.6) who saw accused No.1 while entering in Dhiraj

Solitare building. At at this juncture ld. advocate for the accused No.2

put me to the version of accused No.2. He submits that according to the

Judgment -S.C.630-08 -70- Exh.341

version of Accused No.2, he did not visit Dhiraj Solitare building, rather

as per his version, he came to Inorbit Mall and spent a day with accused

No.1 and her sister and thereafter, he separated and went to meet his

uncle. His further version goes to show that he stayed in one hotel by

name Samadhan or Sambhavna at Link Road, Malad and from there, he

booked return ticket for Cochin and on 852008, in the evening, he met

his uncle and took flight to Cochin.

76. It is not in dispute that accused No.2 talked with accused

No.1 on 652008. As per the version of accused No.2 himself, that the

only reason for sudden leaving from Cochin, in night itself was to meet

accused No.1. The relation between accused No.1 and 2 were of fiancé

and according to accused No.2, the reason for accused No.2 to sudden

visit Mumbai, was only accused No.1, coupled with manner in which,

the accused No.2 left Cochin i.e. without obtaining permission from Navy

Base, with knowing consequences of leaving Base without permission,

goes to show that only and only object of accused No.2 was to meet the

accused No.1. As such, I have already held that on 652008, accused

No.1 was residing at flat No.201 in Dhiraj Solitare Building, coupled

with the fact that accused No.2 flew to Mumbai for accused No.1. If that

is so it is but natural that the accused no.2 would land only at the house

Judgment -S.C.630-08 -71- Exh.341

of the accused no.1 i.e. flat no.201. Therefore, there is no reason for him

to visit Inorbit Mall for meeting the accused No.1 particularly when

Accused no.1 was possessing flat No.201. This circumstance also goes to

corroborate the version of P.W. no. 6 Kundan Jha that on 7.5.2008, in the

morning, the accused no.2 visited flat no.201. As such there is no exact

timing of death of Neeraj Grover, therefore the submission of Ld. Adv. for

the accused no.2 that flight landed half an hour late, is not significant.

Even otherwise nothing is brought on record, that flight landed late. On

the contrary Prosecution through P.W. 24 Mrs. Umadevi has brought on

record that the flight took off right time from Cochin.

77. Not only that, as such, the accused No.2 has come with

the plea of alibi, burden lies on him to prove that he was not present on

the spot. Though accused No.2 claims that he stayed in Hotel by name

Samadhan or Sambhavna, in the night of 752008, but accused did not

examine anybody from said hotel, nor even he made any attempt to

examine the employee of said hotel. It is submitted on behalf of the ld.

advocate for the accused No.2 that accused is in custody and he had

limited recourse to call the witnesses. I do not agree with this

submission of the ld. advocate for the accused No.2. As such number of

defence witnesses have been examined by accused No.2, rather the

Judgment -S.C.630-08 -72- Exh.341

accused No.2 had examined three witnesses, who came down to

Mumbai from Cochin, therefore submission of no recourse does not

carries values.

78. Further ld. Adv. for accused no.2 tried to put before me that

the accused had bill of Hotel Samadhan, where he stayed at the night of

7.5.2008, but it was taken by Mahesh Tawde alongwith his bag. For this

submission he seeks to rely on Photograph(Exh 310A) in newspaper

(Exh.310). Bare perusal of the photograph (Exh310A) goes to show

that a person in veil holding a bag. Taking help of this photograph, Ld.

Adv. for accused No.2 submitted that the bag belongs to accused no.2

and in the said bag the bill of Hotel Samadhan or Sambhavana was kept.

According to accused no.2 the said bag was taken from him by Mahesh

Tawde, API of crime branch. It is worthwhile to mention here that it has

been brought on record in deposition of accused no.2 himself that the

body receipt Form (Exh.291) was issued by Navy Office at Cochin, while

giving custody of the accused no.2 to Mumbai Crime Branch, mentioning

all the belonging carried by the accused no.2 on his person. The very

minute articles are noted in the said body receipt like details of mobile

phone, even identity card as well as cash of definite figure, but no where

it is noted that the accused was possessing bill of hotel. It is contended

Judgment -S.C.630-08 -73- Exh.341

by the accused no.2 that bag belongs to him, but nowhere in the body

receipt form, there is mention of bag. When every minute details of the

document and amount is given in body Receipt Form that I don't think

Indian Navy will not mention a big bag which is shown by the accused

no.2 in Photograph (Exh. 310A). The accused no.2 did not examine

Mahesh Tawde in his defence to show that the bag belongs to him and

was containing Bill of Hotel. The accused prayed for direction to be

given to the prosecution to examine Mahesh Tawde or to be examined

as court witness. Which was rejected by the court for the reasons

recorded. But facts remains that inspite of the opportunity, he did not

chose to examine Mahesh Tawde as his witness, to prove that the bill of

the hotel was inside bag and bag was taken by Mahesh Tawde. Even

otherwise according to accused himself he went to Hotel in the night of

7.5.2008 and according to prosecution, the incident happened since the

morning till evening of 7.5.2008. So it would not make difference

whether he stayed in the hotel on the night of 7.5.2008. The defence of

alibi of the accused No.2 that he did not visit Flat No.201, on 652008

is not probable. Rather, the fact that accused No.1 was residing in flat

No.201 on 652008 goes to corroborate the version of Kundan

Jha(P.W.6). His subsequent presence, which has been brought on record

Judgment -S.C.630-08 -74- Exh.341

through Mayuri Prajapati (P.W.2), Satish Singh (P.W.10) and Dhiraj

Shukla (P.W.15), also concretes the version of the Kundan Jha (P.W.6).

Therefore, there is no substance in the arguments of the ld. advocate for

the accused No.2 that prosecution failed to prove presence of the

accused No.2 in flat No.201 on 752008. There is material available on

record which goes to show that accused No.2 visited flat No.201, Dhiraj

Solitaire building in the morning of 752008.

● Recovery of remains of human skeleton from Manor Wada on

2152008.

79. This is another circumstance, on which the prosecution is

heavily relying on connect the accused No.1 and 2 with the murder of

Neeraj Grover. For this recovery, prosecution is heavily relying on

version of Usha Ramalu (P.W.5), P.I. Nalawde (P.W.45), PSI Shirsagar

(P.W.44) and Investigation Office Raorane (P.W.47). According to the

prosecution the remains of human sekelton were recovered at the

instance of accused No.1 and is admissible u/s. 27 of Indian Evidence

Act. As against this, the defence is vehemently disputing the recovery

of remains of human skeleton on 2152008. According to cross

examination of defence of the accused, it appears that they took defence

that the body was recovered prior to 2152008.

Judgment -S.C.630-08 -75- Exh.341

80. Usha Ramalu (P.W.5) has deposed that on 2152008. she

was bypassing Malad Police station, one constable called her and took

her to PI Nalavde. She was requested to act as a panch to a statement,

which is made by the accused No.1. She was introduced to accused

No.1. Accused No.1 stated that she will show the place where the pieces

of corpus of Neeraj Grover were burnt and she asked to come with her.

Accordingly, the said statement was recorded and this witness has put

her signature on the said memorandum panchnama dated

2152008(Exh.36A). It is further version of this witness that thereafter

the accused led the police party and the panchas to Western Express

High way, vehicles were taken to said Highway at the instance of the

accused No.1. Thereafter, the accused No.1 took them to Wada road,

thereafter on right side of Wada road; they came near a Hill, the

accused asked them to take the vehicle to the left; there was a kachha

road. They proceeded a little ahead to Kachha road; the accused asked

to stop the vehicle, all of them got down from the vehicle, they walked

for some distance, there was foot way, the accused took them to said

way; the accused showed the spot near the foot way. They saw human

rib cage, skull and other burnt pieces were lying there. Police took out

photograph in their presence. The police put all the bones in one plastic

Judgment -S.C.630-08 -76- Exh.341

bag, which was packed and again it was kept in bag of cloth, and it was

sealed with the labels bearing signatures of this witness and other

panch.

81. It is further version of Usha Ramalu (P.W.5) that from the

said place, bunt piece of bag article 13, burnt piece of red cloth ( Art.14),

partly burnt cloth having red lines (Art.15), damaged glass perfume

bottle (Art.16), tin bottle (Art.17) and damaged tin bottle (Art.18),

partly burnt metal button and coin (Art.19 colly) were recovered from

the spot. Apart from it, soil from the burnt place (Art.20) and other than

burnt place (Art.21) were taken separately and recovery panchnama

(Exh.63B) was prepared.

82. Ld. advocate for accused No.1 took me to cross

examination. It has been brought on record in crossexamination that

she was SEO of Malad Police station. So, according to the ld. advocate

for the accused, this witness has never visited Manor Wada. Some

discrepancy in the evidence of this witness has been brought on record

regarding working as SEO. But in her chief she had specifically deposed

about showing of place and recovery of remains of human skeleton. Her

version is corroborated by Shirsagar (P.W.44), PI Nalawde (P.W.45)and

Raorane (P.W.47), as well as recovery panchnama(Exh.63B)

Judgment -S.C.630-08 -77- Exh.341

83. These witnesses have been crossexamined at length by

defence to show that recovery was not made on 2152008. The ld.

advocate for defence heavily relied on Press Conference held by then Jt.

Commissioner of Police Rakesh Maria (D.W.18). To create doubt, defence

has examined journalist of MidDay paper and the defence also dared

to examine the Jt. Police Commissioner in their defence. According to

ld. advocate for the accused Nos. 1 and 2, the Press Conference was held

by the then Jt. Commissioner Rakesh Maria (D.W.18). The press

conference is proved through Rahul K. Bajaj (D.W.17 )as well as Rakesh

Maria (D.W.18) and with the help of CD (Exh.330), which was marked

tentatively. But in view of admission on behalf of (D.W.18) Rakesh

Maria, regarding holding of Press Conference, on 2152008, and

admitting his briefing to Media, contained in CD (Exh.330) it can be

safely said that the defence has proved the Press Conference contained in

CD. Let us see whether Press Conference goes to show that the body was

recovered prior to 2152008. Before going to evaluate evidence on this

aspect, it must be kept in mind that the joint Commissioner Rakesh

Maria has been called by the defence and he is witness of the Defence.

84. With admission of Press Conference, Rakesh Maria (D.W.18)

has also admitted that he has given briefing in respect of blood on

Judgment -S.C.630-08 -78- Exh.341

window draps (curtain), use of car, using of knife and witnessed by

watch man of the building. The main reason for calling of this witness by

the defence, was to show that when the Press Conference was held in

the evening of 2152008, then how it is possible to get the knowledge

by this witness regarding recovery of remains of skeleton, blood stain

curtain drips, particularly when according to prosecution, the police

team returned to Malad Police station at about 6 p.m. The explanation

was sought from this witness as to how he came to know about details of

detection of crime and recovery of remains of human skeleton. In reply,

this witness has deposed that one Sunil Ghosalkar was coordinating

amongst this witness, Malad police station and Crime Branch. According

to this witness, Sunil Ghosalkar did not visit Manor Wada and he was

getting update from the Investigation team. So, nothing has been

brought on record through this witness that could show that recovery

was made prior to 2152008. So for knowledge of this witness as to

blood on curtain draps, use of knife and car, this witness has

categorically deposed that investigating team got the knowledge during

interrogation to accused no.1 while returning from Manor and in turn

Sunil Gosalkar got knowledge while he was in contact with investigating

team and sunil Gosalkar had updated this witness, Rakesh Maria

Judgment -S.C.630-08 -79- Exh.341

(D.W.18).

85. Another circumstance on which the defence is harping, is visit

of team of three persons to Cochin on 2052008, for taking accused

No.2 in custody. It has been brought on record that Mahesh Tavde along

with other police officers went to Cochin on 2052008 by flight. Taking

this fact, the ld. advocate for accused No.2 vehemently submitted that

the police team visited Cochin on 2052008, to arrest accused No.2 in a

crime of Murder of Neeraj Grover and that means the alleged crime was

detected either on 2052008 or prior to that but not after 2052008 as

alleged by the prosecution by showing recovery of remains of human

skeleton. To fortify this fact, the accused No.2 examined Sunil Krishnaji

Damle(D.W.12).

86. Before dealing with the defence witness, let me state the

explanation, which the prosecution has brought on record regarding visit

of Mahesh Tavde to Cochin prior to 2152008. It has come in the

evidence of Raorane (P.W.47) that Mahesh Tavde along with his team

had been to Kochin on 2052008, in connection with missing complaint

(Exh.138) in respect of Neeraj Grover. So, the prosecution stand with its

case that crime was detected only on 2152008, with this explanation let

us see whether the defence has brought anything contrary to this

Judgment -S.C.630-08 -80- Exh.341

explanation. Version of Sunil Krishna Damle (D.W.12)goes to show that

Mahesh Tavde met him twice. In first occasion, he requested him to have

custody of accused No.2 for inquiry in respect of a missing person, to

which this witness has denied his request with the arrangement that

accused No.2 can be posted at Mumbai Base and from there, they can

inquire with the accused No.2. However, according to this witness, in

second meeting he intimated that accused No.2 is involved in murder of

Neeraj Grover. The prosecution claims that Mr. Tavde was updated with

the situation on 2152008 at Cochin itself and therefore, he handed over

letter (Exh.257, 257A,257B) to Navy. The prosecution is heavily relying

on this letter, wherein, the reveal of crime of murder of Neeraj Grover is

shown. According to defence, when Mahesh Tavde left Mumbai, he was

having that letter (Exh.257) prepared with him, which goes to show that

on 2052008, the murder of Neeraj Grover was revealed after recovery

of human skeleton. I have gone through (Exh.257), which is dated

2152008 and bears signature of Mahesh Tavde for and on behalf of Sr.

PI of Crime Branch, Bandra Unit. Therefore, I find substance in the

arguments of the ld. APP that the letter was prepared by Mahesh Tavde

at Cochin.

87. So, the accused no.1 could not get any help from his witness

Judgment -S.C.630-08 -81- Exh.341

Sunit Damle (D.W.12), who was at the highest post in Southern Naval

Command at Cochin as a CommanderinChief. Likewise, Sanjay

Jagdishchandra Sharma (D.W.13) has been examined by accused No.2.

He has also not supported the contention of accused No.2. Lt.

Nagabhushan, Niranjancharya has submitted the copy of same letter

(Exh.257). Though through this witness the copy of letter to Navy has

been brought on record, but the fact remains that the letter was

prepared by Mahesh Tawde by himself at Cochi on 2152008, after

getting update from Mumbai on 2152008. Had Mahesh Tavde taken

written letter from Crime Branch, Bandra Unit on 20.5.2008 before

leaving Mumbai, then certainly, it would have contained the signature of

Senior P.I. But the latter (Exh.257) goes to show that it bears signature of

Mahesh Tawde, for Senior PI of Crime Branch, which goes to support,

the contention of the prosecution. So, nothing material has been

brought on record by accused No.2 to show that Mahesh Tavde had been

to Cochin in connection with crime of murder of Neeraj Grover and not

in missing complaint. Mere Mahesh Tavde visited by flight to Cochin

and account of fare has not been explained by the prosecution, cannot be

the ground to believe that he has left Mumbai for arresting accused and

he was knowing the murder of Neeraj Grover on 2052008 itself. Much

Judgment -S.C.630-08 -82- Exh.341

has been crossexamined by the ld. advocate for the accused on the point

of fare of flight but I do not think that this will be relevant to fact in

issue. Even for the sake of arguments, it is admitted that fare was

provided by Amarnath Grover, it will not affect the case on merit. Let us

see whether the prosecution independently proved the recovery of

remains of human skeleton at the instance of accused No.1.

88. Another ground, which has been advanced before me by the

ld. advocate for the accused No.1, that where from human skeleton was

recovered, was accessible to general public. To buttress his submission,

he seeks to rely on (Exh.301D) publication of news and photographs is

proved by Ketan Ganja (D.W.8), Nimesh Balkrishna Dave (D.W.11)

respectively. It is advanced before me that persons are gathered at the

spot and the said spot was open to public on 2352008 and therefore,

the news was published on 2352008. According to the defence, this is

the same spot, which is appearing in photograph (Art. 22) and according

to the prosecution is the place where from human skeleton is recovered.

I have verified the photograph (Art.22), produced by the prosecution,

with photo (Exh.301D), which is it does not appear to be the same

place in photograph, because in photograph (Exh.301D), one tree is

appearing, which is not in the photograph article (22 colly)., coupled

Judgment -S.C.630-08 -83- Exh.341

with the version of (D.W.11), the witness of accused No.1, itself goes to

show that he has not taken the photograph of the spot, where from

remains of human skeleton were recovered. Even otherwise, after the

recovery, if the spot is made available to access to media by police, it will

not make any difference to the recovery, which was already made from

the spot.

89. It is worthwhile to note here that various newspapers and

TV news contained in the CD (Exh.330) have published news in respect

of this case at the time when the crime was detected. The media went

on publishing, ignoring the consequences of such publication at pre

trial stage. In the present case, certain places and news item,

immediately after the date of revealing of crime, appearing in

newspapers particularly 'MidDay' (dated 2352008, 2452008,

2552008, and 162008 Exh.300, 301, 302, 310 respectively) causes

some confusion in the mind of general public as to description of places

relevant to the crime. Not only that, in RKB show, of Sahara Samay,

contained in CD (Art.330), and other TV channels published/telecast on

2152008 that the body was chopped in 300 pieces, which is far away

from the facts on record. Even it is not the case of the prosecution that

the body was chopped in 300 pieces. It is unfortunate that trial by

Judgment -S.C.630-08 -84- Exh.341

media outraged the general people by publishing news of chopping the

body in 300 pieces. I am unable to understand wherefrom the figure of

300 pieces came. Though it is deposed by Rahul K. Bajaj (D.W.17) that

corrigendum news was broadcast for publishing/telecasting wrong

news of 300 pieces, but it caused confusion rather outraged general

public. The Apex court in R.A. Anand V/s. Delhi High Court reported

in (2009) 8 SCC 106, clearly stated that it would be sad day for the

court to employ the media for setting its own house in order and the

media too would not relish the role of being the snoopers for the court.

Media should perform the acts of journalism and not as a special agency

for the court. “The impact of television and newspaper coverage on a

person's reputation by creating a widespread perception of guilt

regardless of any verdit in a court of law.”

90. Without verifying the facts, media outraged the general

public in this case at pretrial stage. The freedom of speech protected

under Art.19(1)(a) of the Constitution has to be carefully and cautiously

used, so as to avoid inference with the administration of justice and

leading to undesirable results in the matters sub judice before the court.

Though not in this case, but the media trial hampers the investigation as

well as affects the defence of the accused.

Judgment -S.C.630-08 -85- Exh.341

91. It is also argued that the place where from remains of

human skeleton were recovered beside the Kaccha road and it is open

place. In various judgments particularly, which is cited by the ld.

advocate for the accused No.2, where from the recovery was made from

near the platform, which was accessible to general public. So, the

meaning of open space does not necessarily mean that no one should

approach the said place. in broad sense, it should not be a public place,

where from inference can be drawn that the articles which were

recovered from the spot, were easily noticeable to public. It is also been

brought on record that Manor wada is outskirts of Mumbai City and far

away from the High Way. within 2/3 k.m. of the said area, there were

no human habitation and it is isolated place. It may be possible that

some persons may bypass that area. Not only this it is also brought on

record that the recovery was surrounded by shrubs and far away from

wada road, rather towards Kachha road. So, it cannot be said to be a

public open place and accessible to public at large, as interpreted by

various High court and Apex courts, while discussing the issue of

recovery u/s. 27 of Indian Evidence Act. According to the ld. advocate

for accused, the accused No.1 was in custody since 18th May, 2008, and

during this period, the recovery of remains of human skeleton was done

Judgment -S.C.630-08 -86- Exh.341

by police. He seeks to rely on call detail report and according to him call

detail report does not show any incoming or outgoing call to the mobile

of accused No.1 and therefore, she was in custody. Mere fact that there

is no incoming or outgoing call from the mobile of accused, an inference

cannot be drawn that she was in custody since 1852008. As such,

inspite of examination by defence witnesses, particularly (P.W.12), Sunil

Damle, (P.W.13) Sanjay Jagdish Sharma, it could not be brought on

record that Mahesh Tavde had been to Cochin for arrest of accused

No.2, after crime of murder detected and while leaving, he prepared

the letter (Exh.257) on 2052008, which contains the fact of murder of

Neeraj Grover. Likewise, the explanation given by (D.W.18) Rakesh

Maria, the defence witness regarding information received by him,

through Sunil Ghosalkar, readily inference can be drawn that remains of

human skeleton were recovered prior to 2152008 when there is

version of (P.W.5) Usha Ramalu, which is corroborated by Shirsagar

(P.W.44), PI Nalavde (P.W.45), as well as PI Raorane(P.W.47). Though a

attempt was made to create doubt on the recovery of remains of human

skeleton, on 2152008, but the defence could not succeed.

92. Ld. advocate for the accused No. 1 again seeks to rely on

judgment in the case of Shrikant Ramchandra Gomkar v/s. State of

Judgment -S.C.630-08 -87- Exh.341

Maharashtra reported in 2006, Bom. C.R. Cri, 353. This judgment is

also on the same point regarding exclusive knowledge of accused while

giving information, which I have already held that it is not applicable to

the recovery of remains of human skeleton in the present case. Put all

together, the prosecution established that there is recovery of remains of

human skeleton from Manor Wada on 2152008 at the instance of the

accused No.1.

● Recovery of blood stain from flat No.201 and Santro car.

93. The prosecution has examined Ghanshyam Chotelal Yadav

(P.W.14), Mr Lade Asst. Chemical Analyser (P.W. 35), Shirsagar (P.W.44)

and PI Nalavde (P.W.45). It is the case of prosecution that on 2252008,

PI Nalavde along with the panchas and the accused No.1 visited flat

No.201, expert from FSL Kalina were also called,who detected the blood

on the knob of bedroom door, TV Speaker of bed room, curtain of bed

room and outer wall of the kitchen.

94. Ghanshyam Chotelal Yadav (P.W.14) has deposed that while

he was bypassing Malad area on 2252008, a constable took him to 4th

floor of Dhiraj Solitare building 'B' Wing and introduced him to Mr.

Nalavde. There were 4/5 police persons and one lady constable. It is

also brought on record through this witness that there was another

Judgment -S.C.630-08 -88- Exh.341

woman in veil. They all went inside flat No.201. He further deposed

that there was mattress in the hall. Description of flat has been brought

on record through this witness. It has been also brought on record

through witness that inside the bed room, there is a big window having

sliding door, the curtains of pink colour were fixed to the window, and

there was toilet attached to the bed room. It is further deposed by this

witness that two experts stating that they have come from Kalina, came

inside the flat. There were red spot like blood to the outer wall of the

kitchen, the expert collected scrapping on red paper and sample

scraping of the paint was also taken. It is also deposed by this witness

that there were some red lines spot on the lower part of the curtain

inside the bed room, which was taken by expert by cutting the curtain.

There was one red spot like bood on the inner knob of bed room, the

expert collected the blood on one cloth piece and kept the cloth in one

sealed packet. Likewise, one red spot like blood on the front portion of

TV towards the door side was also collected on cloth piece and

accordingly the panchnama was drawn after sealing the blood samples.

PI Nalavde (P.W. 45) has also deposed on the same line in respect of

visinting of expert at flat No.201, of Dhiraj Solitare building and

collecting of blood spot from outer wall of the kitchen, curtains, door

Judgment -S.C.630-08 -89- Exh.341

knob and TV speaker from the bed room of flat No.201. It is further

deposed by this witness that ¾ jeans, Half sleeve tshirt, pillow cover and

pair of shoes were also recovered from Bed room of flat no.201. The

spot panchnama has been brought on record through Ghanshyam Yadav

(P.W.14) which is at ( Exh.94).

95. The first submission on behalf of the ld. advocate for the

accused no.1 on the spot panchnama that the police have planted the

blood in flat No.201, as the police had sufficient time. It is further

argued on behalf of the ld. advocate for the accused no.1 that there are

instances on record to show that the police visited flat No.201, prior to

2252008. According to him, possibility of plantation of blood inside

the flat No.201 cannot be ruled out. To buttress his submission, the ld.

advocate for the accused No.1 took me to crossexamination of (P.W.6)

Kundan Jha, wherein it has been brought on record that in the late night

of 752008, police visited flat No.201, and even thereafter, for 2/3

times, but police did not find blood in flat no.201. According to

prosecution till 2152008 and according to defence between till 20th

May, 2008, the police was tracking on missing complaint (Exh.138)

with regard to missing of Neeraj Grover. The question remains when the

police visited flat No.201, prior to 2252008, then why the blood,

Judgment -S.C.630-08 -90- Exh.341

which was noticed on 2252008 was not noticeable prior to that. I have

gone through the panchnama as well as deposition of (P.W.14). The spot

where from, and in which quantity the blood stain was detected, I do

not think, it was possible for a person to get the blood stain noticed in

normal circumstances, unless it is seen from that point of view. But as

such, prior to 21.05 2008, no one was knowing that Neeraj was

murdered. Therefore, that might be possibility, rather obvious reason

for the police for not inspecting the flat No.201 very minutely and with

the help of expert, prior to 2252008. It is further argued on behalf of

the ld. advocate for the accused No.1 Sharif Shaik that even there is

delay in preparing spot panchnama. According to him, PI Nalavde was

inside the police station till 10 p.m. on 2152008 and it was possible for

him to go on the spot on 2152008 itself for inspecting the scene of

alleged crime. One thing should not be forgotten that, all the

investigating team travelled to and from Manorwada and returned to

Malad police station at about 6 p.m., and after recovery of articles, there

are various procedures to be followed. So, that might be the reason for

not visiting flat No.201 on 2152008. Even for the sake of argument, if

it is presumed that the police had opportunity to visit the spot on

2152008 and in spite of that, they chose to visit on 2252008. This

Judgment -S.C.630-08 -91- Exh.341

fact itself is not fatal to prosecution, unless prejudice having caused to

the accused is shown.

96. Another point which Ld. Adv. for accused no.1 tried to

suggest that the flat was not shown by the accused upon voluntary

statement and it was not reduced into writing, therefore this fact cannot

be admitted u/s 27 of the evidence Act. For this submission the Ld. Adv.

seeks to rely on Judgment in case of Tulsiram Jadhav v/s. State of

Maharashtra reported in 2011 TL MLL 56 where Bombay High Court

has held that recovery made by Investigation Officer at the instance of

the accused, without preparing any document, to show that the said

information was reduced into writing, and thereafter, the dead body

was recovered, the said recovery is not admissible. I am conscious of this

legal preposition, but point here is, of spot panchnama and not of

recovery u/s 27 of the Evidence Act. Spot panchnama is being prepared

to show the situation of the spot of crime and if any recovery is made

from the spot, is admissible as relevant to fact in issue.

(As the court time is over case is adjourned to 2962011)(Dictation of judgment resumed on 2962011)

97. Now, let us turn to the case of prosecution regarding

recovery of Santro car. It is the case of the prosecution that on

Judgment -S.C.630-08 -92- Exh.341

2552008, at the instance of the accused No.1, Santro Car bearing

No.MHO4BQ9966 came to be recovered from Kiran Shriyan (P.W.11)

and the prosecution is relying on this recovery u/s. 27 of Indian Evidence

Act and for that purpose, the prosecution is relying on version of Mohd.

Ayub Mohd. Khan (P.W. 12), Kiran Shriyan (P.W.11) and PI Raorane (P.W.

47). Let us see what the evidence has been brought on record in respect

of this recovery.

98. Through Mohd. Ayub Mohd. Khan (P.W.12), it has been

brought on record that on 2552008, one constable called him and one

Ismile. He took them to PI Raorane (P.W.47. Raorane requested them to

act as panchas to voluntary disclosure. He introduced (P.W.12) to

accused No.1. According to this witness, accused no.1 stated that she will

show the car and the said statement was recorded under memorandum

panchnama (Exh.90A). It is further version of this witness that

accused led police party and panchas to MHADA, 4 Bungalow area, and

there she pointed out a Santro car, bearing No. MHO4BQ9966. On

enquiry, it is revealed that car belongs to Kiran Shriyan, who latter on

came there. From the version of this witness, it appears that the police

seized a big and two small rubber mats, as well as two seat covers, apart

from window protection sheets, and dickey mat under the panchnama

Judgment -S.C.630-08 -93- Exh.341

(Exh.90B).

99. Kiran Shriyan (P.W.11), has deposed that the accused No.1

was introduced to him by his friend Deepak. It is testimony of this

witness that on 752008, at about 12 p.m. accused made a phone call

and requested him to lend his car to her. Accordingly, accused No.1,

along with accused No.2 came to him at 3.30 p.m. Accused No.1

introduced him with the accused No.2; he then handed over key of his

car to Maria and accused No.1 took away the car. It is further evidence

of this witness that she did not return his car till 9 p.m. He then made a

call to her and asked about the car, she stated that she has come to

Malad police station to lodge a complaint of her missing friend Neeraj

and would return the car on the next day. According to further version

of this witness that on the next day at about 10.30, accused no.1 along

with the accused No.2 came to his house and returned his car. According

to his version, at that time the accused no.2 was driving the car. It is

further version of this witness that police constable came to his place on

2552008, he came down; there were other persons apart from Mr.

Raorane and Shivalkar. Accused no.1 was also with them along with

other woman. Police asked about his car, he handed over car to them

police cut seat covers, mats and prepared some writing.

Judgment -S.C.630-08 -94- Exh.341

100. PI Raorane (P.W. 47) has also deposed on the same line

regarding showing of car by accused no.1 and seizing of rubber mats,

seat covers and sun protection sheets. Ld. advocate for the accused no.1

vehemently argued that the ingredient of section 27 is not proved by the

prosecution. According to him, the accused must have exclusive

knowledge and the police should not have any knowledge in respect of

the fact, then only the fact discovered is admissible. I am conscious of

the legal position that the statement made by the accused before the

police is hit by section 24, 25 and 26 of the Indian Evidence Act, and

therefore, is not admissible. Section 27 is exception to section 24, 25

and 25 of the Act of 1872. Section 27 provides “Any fact is deposed to as

discovery in consequence of information received from a person, accused

of an offence, in the custody of police officer, so much information,

whether it amounts to confession or not, as relates distinctly to the fact

thereby discovered, may be proved.” Therefore, word 'distinctly to the

fact' is most important ingredient of section 27. That means, the accused

had exclusive knowledge of the said fact and till the disclosure is made,

the police authority were not knowing the said fact.

101. Ld. advocate for the accused No.1 took me to Press

Conference contained in CD held by the then Jt. Commissioner Rakesh

Judgment -S.C.630-08 -95- Exh.341

Maria (D.W.18) as well as New Art. (Exh.300D) published in newspaper

(Exh.300), which has been proved by (D.W.8). From the interview

contained in the CD, as well as News column (Exh.300D), goes to show

that there is reference of Santro car in news column (Exh.300D), which

also goes to show the name of one Kiran Shriyan, which might be typing

mistake, but fact remains that the police were knowing the Santro car of

Kiran Shriyan, prior to 2552008. Though I.O. Raorane (P.W.47) has

denied the suggestion in respect of interview contained in CD as well as

News published in MidDay News, appearing in (Exh.300D), which is

duly proved by (D.W.18) and (D.W.8 ) respectively. Therefore, I find

substance in the arguments of the ld. advocate for the accused No.1 that

police were already knowing in respect of car particularly of Kiran

Shriyan. It is also not the case that accused No.1 exclusively was

knowing the place where the car is kept. In the case Jaffor Hussain

Dastagir v/s. State of Maharashtra reported in 1971, Mh.L.J., 274,

relied by Ld. Adv. for accused no.1. It has been held that essential

ingredient of recovery u/s.27 information must be given by the accused,

which leads to discovery of facts and should be direct outcome of

information. In the said case, the accused shared the information and

took to police party to the Airport and showed the person in whose

Judgment -S.C.630-08 -96- Exh.341

custody the diamond were lying. In that context, the Hon'ble High Court

has held that as accused has already informed the police that he had sold

the diamond to other accused, however, only to know whereabouts of

other accused, the accused showed the other person with whom the

diamonds were lying. Therefore, Hon'ble High court discarded recovery

on the ground that police was having information shared by accused

earlier that he had given the diamond to other accused. The judgment

of the Apex Court is applicable to this case. As in press conference

Rakesh Mariya, then Jt. Commissioner (D.W.18) had knowledge of the

car, coupled with showing name of Kiran Shreyan (P.W.11) as owner of

santro car in news column (Exh.300D) Hence, the recovery of Santro

car, cannot be said to be admissible u/s. 27 of Indian Evidence Act.

102. Though the prosecution failed to prove that the recovery of

the car was only in pursuant to information shared by the accused no. 1

on 25.05.2008 and hit by sec. 25 of The Evidence Act. However, It is

interesting to note that the prosecution has brought sufficient material

on record through this prosecution witnesses that car was used by

accused Nos. 1 and 2 on 752008. The evidence of Kiran Shriyan

(P.W.11), is evidence on relevant fact, which is admissible u/s. 5 of Indian

Evidence Act . So, there is direct evidence which has been brought on

Judgment -S.C.630-08 -97- Exh.341

record by prosecution regarding lending of car by (P.W.11) Kiran Shriyan

to accused No.1 at about 3.30 p.m. on 752008 and accused No.1

returned the car to Kiran on next day morning. Ld. advocate for the

accused no.1 tried to harp on the contradiction between version of Kiran

Shriyan (P.W.11) and panch Mohd. Ayub Mohd. Khan (P.W.12) to

recovery of seat covers, foot mats and sun protection sheets of Santro car.

Kiran (P.W. 11) as deposed that police cut the seat covers, mats,

whereas, Mohd. Ayub Mohd. Khan (P.W.12) has deposed that the seat

covers and mats were removed from the car. In my view, this is a minor

discrepancy, which is bound to occur. Rather, this discrepancy goes to

show that they are not tutored witnesses. Kiran Shriyan (P.W.11), who

happens to be one of the friend of accused No.1, why he will depose

falsely against the accused No.1 regarding lending of car and recovery of

seat covers, four mats from his Santro car. It is worthwhile to point out

the version of Satish Singh (P.W.10) who has also deposed before this

court that Santro car was lying in the lobby of Dhiraj Solitare building at

about 4.15 p.m. and this witness saw the accused Nos. 1 and 2, while

boarding bags in the car and taking away Santro car. The seat covers,

foot mats and sun protection sheets of Santro Car were sent to FSL

Kalina for DNA Test. Before going to deal with scientific test, let me state

Judgment -S.C.630-08 -98- Exh.341

that the evidence of Shri Lade Chemical Analyser (P.W.35), goes to show

that blood was detected on seat covers and four foot mats.

● Whether the blood stains found in flat No.201 and on seats

covers and foot mats of Santro Car, is of Neeraj Grover?

103. Now, let us turn to most crucial part of case of prosecution.

The prosecution is heavily relying on DNA test, which according to the

prosecution is accurate science for proving carious DNA reports filed by

the prosecution in its case. Prosecution seeks to rely on version of

(P.W.35). Before proceeding to deal with the evidence of (P.W.35), let

us see whether the DNA report is admissible and can be safely relied

upon.

104. DNA means Deoxyribo nucleic acid, which is found in

chromosome of the cell of living being and is blue print of a individual

and the identification is 100% precise. According to this witness

(P.W.35), the DNA is unique in every individual and there is only

exception to this in a case of mono zygotic twins, that too it is found

very rare. DNA collected from a person, can be preserved for many

years in 0.5 molar of edita. So, according to this witness, DNA is

accurate science and STR analysis is a high sensitive conclusive test.

105. Now, let us see what the report speaks about DNA profile of

Judgment -S.C.630-08 -99- Exh.341

blood, detected from flat No.201 and from seat cover and foot mats of

Santro car. According to this witness, he received two packets of scrap

paint of wall, a piece of curtain, and two dry blood on cutting of cloths.

According to this witness, out of two scrapping of print, in one

scrapping, there was blood. Likewise, both cloth pieces were also

containing blood apart with pieces of curtain. He could get DNA from

the blood from scraping of paint and 10 cloth pieces. He could not get

DNA from the blood detected on curtain pieces. He prepared DNA

profile of DNA of blood found on pieces of cloth and scrapping (Art.29

A colly.) According to the further version of this witness, in a DNA

profile of blood on two pieces of cutting cloth (blood extracted from the

door latch of bed room and TV speaker), DNA of male and female was

found. He compared DNA profile of blood of male found on the cloth

( blood extracted from the latch of bed room and TV speaker) and DNA

profile of scraping with the DNA profile of femur bone and teeth and all

58 STR locus of both DNA profile were matching with each other.

Therefore, this witness concluded that blood found in scrapping, blood

sample extracted from the latch of the bed room and TV speaker and

cloth pieces were of the same person.

106. Likewise, he has also done DNA profile of female blood on

Judgment -S.C.630-08 -100- Exh.341

cutting cloth( blood extracted from latch of the bed room and TV

speaker). This witness has also conducted DNA profile of blood sample of

accused No.1. While comparing the DNA profile of female blood

detected on stained cloth piece, ( blood extracted from the latch of the

bed room as well as TV speaker) with DNA profile of accused No.1, DNA

profile of both were matching. Accordingly, he concluded that the female

blood found on latch of bed room as well as TV speaker is of accused

No.1. The report has been brought on record through this witness at

(Exh.155). Further version of this witness goes to show that he could

detect DNA from one rexine seat cover (Art. 28A) and he could not get

DNA from foot mats and other seat covers of Santro car. He conducted

DNA profile of blood found on seat cover (Art. 28A), and while

comparing the DNA profile of seat cover of Santro car (Art.28A) with

DNA profile of Femur Bone and teeth, he concluded vide his report

(Exh.157) that DNA profile of blood detected on rexine seat cover

(Art.28A) and DNA profile of femur bone and teeth are identical and

from one and same source of male origin. So, from the report ( Exh. 155

and Exh. 157) the prosecution has brought on record that the blood

detected in flat No.201 and blood detected from seat cover (Art.28A)

are of a person having femur bone (Art.11) and teeth (Art.46). As I

Judgment -S.C.630-08 -101- Exh.341

have held, while discussing the identity of femur bone and teeth and

concluded that femur bone are of Neeraj Grover. So the report of DNA

profile suggest that the blood in flat No.201 and blood detected from

seat cover and mats of Santro car is of Neeraj Grover.

107. Ld. advocate for accused Nos. 1 and 2 crossexamined this

Expert witness at length. Firstly, they vehemently submitted that the

Expert is not competent to conduct the test. The other submission of the

ld. advocate for the defence was of contamination and degradation of

samples. Various attempts have been made in the crossexamination of

this witness to show that the blood sample, which was received by him

were contaminated and degraded samples. But all the way, this witness

has denied their suggestion and deposed that if the sample is degraded

one, DNA will not be amplified and profile cannot be done and further

this witness goes to deposed that even if DNA sample is degraded, the

DNA test can be done on the intact STR locus, provided six STR locus

are intact. So, the defence could not bring any material in the cross

examination of this witness that DNA profile was not properly done and

there is mistake or human error while conducting DNA test.

108. Ld. advocate for the accused No.1 vehemently submitted

that DNA was done in Government laboratory, which is under the Home

Judgment -S.C.630-08 -102- Exh.341

Department and therefore, there is possibility of influence of Crime

branch Office. Straightly inference cannot be drawn that the Experts

have manipulated the report, as per whims of crime branch Bandra Unit.

It is also vehemently submitted on behalf of the ld. advocate for the

accused that other laboratory situated at Hyderabad or Chandigadh as

well as private laboratories are the standard laboratories for conduct

DNA test. None of the accused came forward before me with request to

repeat DNA test from other laboratories, on which they were relying for

having standard for performing DNA test. The version of (P.W. 35) goes

to show that he has conducted 600 to 700 DNA tests; he has been

trained by CDFD Hyderabad, and Directorate of FSL New Delhi. He has

also written a book on Forensic biology and various research papers.

This witness has also been awarded by all India Forensic Conference in

Kolkata and Hyderabad. So far as submission of the ld. advocate for the

accused No.1 regarding identification of Form of Amarnath Grover and

Nilam Grover. I have already discussed this issue in point No.1. Much

has been argued by the ld. advocate for the accused No.1 that police

have sprinkled the blood in flat No.201 as well as in Santro Car of

(P.W.11) Kiran Shriyan. According the defence, police in order to falsely

implicate the accused persons, planted blood at flat No.201 and in

Judgment -S.C.630-08 -103- Exh.341

Santro Car. No motive has been brought on record for which the police

will implicate these accused, particularly when accused were not known

to the Investigation Officer prior to this case. Apart from it, it was

virtually impossible for the police to get the blood of a person, who is no

more in this world.

109. Ld. advocate for accused No.2 Mr. Wahab Khan also

submitted before me that it might be possible that the blood of parents of

the deceased might have been sprinkled to implicate the accused. As

such, the DNA is accurate science, DNA profile of Amarnath Grover

speaks itself. Had there been blood of Amarnath Grover, sprinkled in

flat No.201, as well as on seat covers of Santro Car, all allel of the blood

detected from the flat No.201 and Santro Car should have been matched

with the DNA profile of blood of Amarnath Grover, which was taken as a

sample. Both allele in all 15 STR locus of DNA profile of blood detected

from TV speaker , door latch of bed room as well as seat covers of Santro

Car, do not match with all allele of control sample of Amarnath Grover.

Rather it shows that one allele is inherited from Amarnath Gover and

one allele from Nilam Grover. This rules out every possible doubt shown

by ld. advocate for accused that the blood of parents of Neeraj might

have been sprinkled in flat No.201 as well as Santro Car. In the case

Judgment -S.C.630-08 -104- Exh.341

before Allahabad High, in the case of Dharmadeo Yadav v/s. Sate of U.P.

Allahabad High Court had an occasion to discuss the DNA finger print

wherein, it was held that STR analysis is sensitive and conclusive test

even on degraded biological sample. Even otherwise if the sample was

degraded or there was contamination, then there would have been

mismatch while comparing with control sample, which is not the case

here. In view of the aforesaid discussion, I have no hesitation to conclude

that blood detected in flat No.201, and seat covers (art.28A) of Santro

car, is of deceased Neeraj Grover and prosecution succeeds in proving

this circumstance.

● Recovery of chopperknife and petrol can, at the instance of the

accused No.2.

110. It is the case of prosecution that after arrest of the accused

No.2, on 2452008, the accused No.2 made voluntary disclosure and

pursuant to which, a chopper was found at Manor Wada. For proving

this circumstance, the prosecution is relying heavily on the version of

(P.W.7) Ravi Ramesh Parab and (P.W.47) PI Raorane.

111. It has been brought on record through (P.W.7) Ravi Parab that

on 2452008, he had visited BMC office, they were taking tea inside a

hotel near BMC office, one police constable took him and his friend to

Judgment -S.C.630-08 -105- Exh.341

Bandra Crime Branch and introduced them to Mr. Rao Rane. PI Raorane

showed them accused No.2. The accused no.2 confessed regarding

murder and stated that he will show the chopper and the place where it

is hidden. The statement was reduced into writing, which was signed by

accused which is at (Exh.72A). It is further version of this witness that

the accused led police party, him and his other friend to Manor Wada.

According to his version, all the way, the accused No.2 was directing for

destination. Thereafter, the vehicle was stopped; the accused took them

inside from the road; some burnt bushes were lying there, accused put

his hand in it and took out a knife like a saw. Said knife was seized

under the panchnama (Exh.72B) and it was sealed with lakhseal by

putting on a card board. This witness has identified (Art.23) as the

same knife, as according to him, it was recovered at the instance of

accused No.2. Raorane (P.W.47) has also deposed on the same line and

corroborated the version of this witness.

112. So far as recovery of kitchen knife is concerned, the

prosecution is relying on the version of (P.W.8) Ranjit Suresh Raje and

again on version of (P.W. 47) PI Raorane. According to the prosecution, a

knife was recovered on 162008 from the water drainage of dry balcony

of flat No.201, at the instance of accused No.2 on 162008. The

Judgment -S.C.630-08 -106- Exh.341

prosecution is also relying on panchnama (Exh.81A and 81B) as well

(Art. 25) knife.

113. (P.W.8) Ranjit Raje who is shown as a panch to recovery and

memorandum of disclosure, has deposed that while he was going to

Lucky hotel at Bandra, he was called by a constable in CID office and

requested him for help. This witness was taken to CID unit No.9 and was

introduced to Raorane who in turn showed him accused No.2.

According to this witness, the accused no.2 stated that he will show and

point out the knife and asked to accompany him. Accordingly,

panchnama was prepared to that effect at (Exh.81A). This witness

signed on the panchnama and accused No.2 also signed on (Exh.81A).

Further testimony of this witness goes to show that accused took police

party and panchas including this witness towards link road and

thereafter towards right turn from the distance of 150 meter earlier to

link road, and near a multistory building. The name of said building was

Dhiraj Solitare. Accused No.2 took them to 'B' Wing of the said building

and went to 4th floor by lift, thereafter to flat No.201 on 4th floor;

thereafter the key of the flat was called from the police station; PI

Raorane opened the latch and lock by key; they all entered in the hall;

accused No.2 took them inside bath room and inside the bath room,

Judgment -S.C.630-08 -107- Exh.341

there was a door and by opening door, accused took them to dry balcony.

Accused no.2 opened the lid of water outlet by his leg, he then put his

hand inside the outlet and took out a knife having plastic grip and steel

blade which was seized under the panchnama (Exh.81B ) and also

sealed with label and lakh seal. The version of PI Raorane (P.W.47) is

also one and the same as of Ranjit Rane (P.W.8), memorandum

panchnama (Exh.81A and 81B) also corroborate the version of (P.W.8).

114. So far as recovery of plastic can (Art.48) is concerned, the

prosecution is relying on sole version of (P.W.47) PI Raorane and also

relied on panchnama (Exh.242A and 242B). According to the version

of (P.W.47) on 262008, accused No.2 wished to make a voluntary

disclosure, therefore, two panchas were arranged. Accused No.2, made

voluntary disclosure to show the plastic can wherein he purchased

petrol. In presence of panchas Memorandum (Exh.242A) was prepared.

The panchas also put their signatures on it. As per version of this

witness, the accused took them to Western Express High way and from

Tell Naka, they took 'U' turn at the instance of the accused No.2, accused

No.2 asked them to stop the vehicle besides the High way. The accused

No.2 alighted from the vehicle and from the bushes, besides the Western

Express High way, accused No.2 took out yellow colour plastic Can

Judgment -S.C.630-08 -108- Exh.341

(Art.48), which was seized under the panchnama (Exh.242B), which

bears signature of accused No.2 and signatures of panchas.

115. It is submitted on behalf of the ld. APP Shri Kini that

prosecution has proved all the three recoveries at the instance of the

accused No.2. Per contra, the ld. advocate for accused No.2 Wahab

Khan has vehemently submitted before me that the prosecution could not

prove these recoveries and according to him, there is a gap of more than

7 days between the recovery of chopper (Art. 23) and knife (Art.25).

According to the ld. advocate for the accused No.2, recovery by the

prosecution, in piecemeal manner, creates doubt on the recovery itself

and goes to show that there are only two possibilities, either the articles

have been planted by the police or recovery was not voluntary and was

under duress and by using third degree method. To buttress his

submission, he seeks to rely on case of Kashinath V/s. State of

Maharashtra, reported in 1995(1) ALL M.R. page 410 wherein the

Hon'ble Apex court has held “that the time lag of 8 days between the

recovery of knife and blood stained clothes at the pointing out by the

appellant clearly suggest that the recovery was not in furtherance of a

voluntary disclosure made by the appellant to the police. But instead,

was the result of duress and third degree method of the police. Had the

Judgment -S.C.630-08 -109- Exh.341

recovery of blood stained clothes were in consequence of voluntary

disclosure made by the accused, the same would have been in close

proximity of the recovery of knife.”

116. Let me mention here that each case depends on its own

facts. With respect to the finding of the Apex court, let me mention

here that in the said case, before Their Lordship, the panch was not

believed for voluntariness of the appellant and in the cross

examination, he had admitted that appellant did not say anything in

their presence. Let us turn to the facts of the present case. It is not the

case where the panch has supported the recovery of knife at the instance

of the accused No.1. Not only that , it is a matter of record that the

accused No.2 was well educated and was serving with Indian Navy as a

Lieutenant. Record also shows that during the trial, whenever, there

was any irregularity on behalf of the prosecution, the accused No.2

promptly objected. It is worthwhile to mention here that when the

accused No.2 was transferred from Aurthur Road Jail Taloja jail, on

account of security, even then he has taken his objection and filed

objection before me at (Exh.134). So, I do not think there is any

possibility of duress or using of third degree method by the police

against him for getting recovery of knife. Not only that, the accused

Judgment -S.C.630-08 -110- Exh.341

No.2 had also filed Writ Petition against the irregularities in jail before

Hon'ble High court. The recovery panchnama of knife (Exh. 81) also

bears signature of accused No.2. All these things, rule out the possibility

of threats by the police, using third degree against the accused No.2.

So far as apprehension of ld. advocate for the accused No.2 regarding

planting of knife is concerned, let me mention here that it has been

brought on record through (P.W.35) Chemical Analyser Lade that blood

was detected on kine (Art.25). All articles which were sent to FSL Kalina

for DNA test, 15 STR Locus were found by (P.W.35) except (Article 25)

knife. His version as well as report (Exh.160) shows that in DNA of the

blood, found on knife (Art.25), he could get only 7 STR locus. Had

there been a planting of knife, by the police, they could have shown by

manipulation, 15 STR Locus in DNA profile of blood on (Art.25) kitchen

knife. Not only this, how blood of Neeraj was found on it. So, the

possibility of any plantation by the police, in respect of kitchen knife

(Art.25) is ruled out.

117. It has been further argued by the ld. advocate for the

accused No.2 that (Art.25) knife is allegedly recorded from the flat

No.201, which was in possession of accused No.1 and accused No.1 was

also having knowledge of the said knife. Let me state that as per version

Judgment -S.C.630-08 -111- Exh.341

of (P.W.8), Ranjit Raje, (P.W.47) IO Raorane, as well as recovery

panchnama (Exh.81B), it appears that knife was recovered from water

outlet of dry balcony of flat No.201. Their version further goes to show

that the accused No.2 took out the knife by removing lid of water outlet.

In these circumstances, knowledge of accused No.1 cannot be readily

inferred, unless it is brought on record. In this context, ld. advocate for

the accused No.2 seeks to rely on Judgment of Bombay High Court in a

case of Shashikant Mahadeo Birje v/s. State of Maharashtra in Cri.

Appeal No.246/04, wherein Their Lordships held that there is no

evidence in respect of ownership of the shop or the shop exclusively

belonging to the accused. Consequently, the presumption that the

accused must be present, who must have placed the weapon, cannot be

drawn.

118. The facts of the present case are different than the case,

which was before their Lordship. In the present case, it is alleged by the

prosecution that accused No.2 was present inside flat No.201, and

according to the prosecution scene of crime is also flat No.201.

Therefore, looking to the facts and circumstances of the present case,

citation relied upon by the accused No.2 is not applicable to the present

case. Therefore, when possibility of duress and plantation and recovery

Judgment -S.C.630-08 -112- Exh.341

of (Art.25) is ruled out, then I do not think, time gap of 8 days between

the recovery of Chopper (Art.23) and recovery of knife (Art.25) made the

prosecution case weak.

119. The ld. advocate for the accused No.2 Mr. Wahab Khan

seeks to rely on Judgment of the Bombay High Court, in the case of

State of Maharashtra v/s. Sundeep Sonu Nehagade in confirmation

Case No.3/2010, Their Lordship held that:

“Knife which was recovered in the crime was a kitchen knife

and the investigation officer, perhaps was aware that knife

could not be the weapon used to cause the fatal head injury.

I.O. perhaps was looking for some other hard and blund

object to connect the head injury and that he claims to have

recovered on 2022008 from flat No.602 at the behest of

accused . For this reason, their Lordships discarded the

recovery.”

Again the facts of the present case are different from the facts in the

case, which was before their Lordship. And it is case of the prosecution

that two weapons were used; one was a weapon of assault and other for

destruction of evidence. Hence two recover, one of knife and other of

chopper, is in consonance with the case of prosecution. Further, ld.

Judgment -S.C.630-08 -113- Exh.341

advocate for the accused No.2, submitted that as it was disclosed by

Joint Commissioner of Police while briefing to Media that knife was

used. Hence it was within the knowledge of police therefore, recovery

of knife is not admissible u/s.27 of Indian Evidence Act. It appears that

there is confusion. Let me state that by making voluntary disclosure,

the place of hiding and particular knife (Art.23) was shown by accused

No.2 by taking out knife, of which the accused No.2 had exclusive

knowledge. Hence, I do not find substance in the arguments of the ld.

advocate for the accused No.2.

120. It is further vehemently submitted by the ld. advocate for

accused that the chopper (Art. 23) is recovered near the place, which

according to the prosecution is the place of recovery of remains of

human skeleton. It is not disputed that distance between the place is

15 to 20 ft. It is submitted by the ld. advocate for the accused No.2 that

when the police party visited to Manor Wada, at the same place on

2152008, then it is highly improbable for the police that they could

not notice the chopper from the nearby place, particularly when the

prosecution alleged to have recovered the chopper from burnt patches

of bushes. To buttress his submission, he seeks to rely on the Judgment

of Dinesh V/s. State of Maharashtra reported in 2010 ALL MR

Judgment -S.C.630-08 -114- Exh.341

wherein, it was held that rediscovery of place of incident, does not come

within the purview of section 27 of Evidence Act. In the said case,

Investigating Officer came to know about recovery of body from

concerned police station in Gujarat. Skeleton of the body was recovered

and post mortem was also performed. Subsequently, thereafter, the

memorandum of panchnama was prepared, at the instance of accused,

discovery of place where dead body was shown and discovered from

flat.

121. In the said case, the place was already known to the

Investigating Officer and again it was shown to be recovery at the

instance of accused. So, both the recoveries were in respect of the same

fact, which is not the fact in the present case. Ld. APP on this point

seeks to rely on Judgment of Apex Court reported in 2011 (Cri) 33 SCC

wherein it is held that merely because the recovery was made from the

same place, which was already visited by the police, that would itself not

dispel the evidence of discovery and recovery. In view of the Judgment

of Apex Court, I do not find any force in the arguments of the ld.

advocate for the accused No.2 that other recovery cannot be made from

the place where from the earlier recovery was made. Therefore, the

recovery of chopper at the instance of the accused No.2, from the place,

Judgment -S.C.630-08 -115- Exh.341

which was visited by the police on 2252008, cannot be said to be fatal

to the present case, particularly when the chopper was taken from the

burnt bushes.

122. It is further submitted on behalf of the defence that even if

reference of chopper and knife is proved, that by itself does not connect

the accused with the crime. I will deal with this submission of the ld.

advocate for the accused No.2 little later. Let us first turn to recovery of

plastic can (Art.38). Admittedly, no panchas have been examined by the

prosecution in respect of this recovery and this recovery is shown from

the place adjacent to Western Express High Way, where from public pass

every day to their houses and it is not isolated place. Further more,

panchnama (Exh.242A) does not bear signature of accused No.2 as in

case of the recovery of chopper (Art.23) and knife (Art.25). For these

reasons, the recovery of plastic can from the bushes, adjacent to Western

Express Highway, do not inspire confidence to belive that the plastic can

(Art. 48) was recovered at the instance of accused No.2. So, in the

absence of signature of accused at Exh.242A, and nonexamination of

panchas create doubt on the recovery of Cane (Art.48).

Homicidal Death:

123. In the present case, the prosecution could recover the

Judgment -S.C.630-08 -116- Exh.341

remains of human skeleton. No post mortem report of deceased Neeraj

is on record. Ld. advocates for the accused Nos. 1 and 2 vehemently

submitted that prosecution failed to prove homicidal death of Neeraj.

It is further submitted on behalf of the ld. advocates for accused Nos. 1

and 2 that no case of homicidal death of deceased Neeraj has been

brought on record, rather not proved by the prosecution. However, the

blood, found from the flat No.21; on seat covers and mats from Santro

Car; on Chopper (Art.23); and knife (Art.25), is proved by the

prosecution as that of Neeraj Grover. If the blood of deceased Neeraj is

found on the knife (Art.25) and Chopper (Art.23) coupled with

photograph(Art.22) which shows the remains of Neeraj i.e. ribcage,

femur bone, skull and other bones. All these articles suggest that Neeraj

met with homicidal death. Apex court in the case of Ramanand V/s.

State of Himalchal Pradesh reported in 1981(1) S.C. page 859

observed that:

“ This means that before seeking to prove

that the accused is the perpetrator of the murder, it

must be established that homicidal death has been

caused. Ordinarily, the “recovery of the dead body

of the victim or a vital part of it, bearing marks of

violence, is sufficient proof of homicidal death of

Judgment -S.C.630-08 -117- Exh.341

the victim.

There was a time when under the old English

Law, the finding of the body of the deceased was

held to be essential before a person was convicted

of committing his culpable homicide. “I would

never convict,” said Sir Mathew Hale, “a person of

murder of manslaughter unless the fact were

proved to be done, or at least the body was found

dead.” This was merely a rule of caution, and not

of law. But in those times when execution was

the only punishment for murder, the need for

adhering to this cautionary rule was greater.

Discovery of the dead body of the victim bearing

physical evidence of the violence, has never been

considered as the only mode of proving the

corpus delicti in murder. Indeed, very many cases

are of such a nature where the discovery of the

dead body is impossible. A blind adherence to

this old “body” doctrine would open the door

wide open for many a heinous murderer to escape

with impunity simply because they were cunning

and clear enough to destroy the body of their

victim. In the context of our law, Sir Hale's

enunciation has to be interpreted no more than

the emphasising that where the dead body of the

victim in a murder case is not found, other cogent

Judgment -S.C.630-08 -118- Exh.341

and satisfactory proof of the homicidal death of

the victim must be adduced by the prosecution.

Such proof may be by the direct ocular account of

an eyewitness, or by circumstantial evidence or

by both. But where the fact of corpus delicti I.e.

“homicidal death” is sought to be established by

circumstantial evidence alone, the circumstances

must be of a clinching and definitive character

unerringly leading to the inference that the victim

concerned has met a homicidal death. Even so, this

principle of caution cannot be pushed too for as

requiring absolute proof. Perfect proof is seldom

to be had in this imperfect world, and absolute

certainty is a myth. That is why, under Section 3 of

the Evidence Act, a fact is said to be “proved”, if

the Court considering the matters before it,

considers its existence so probable that a prudent

man ought, under circumstances of the particular

case, to act upon the supposition that it exists.

The corpus delicti or the fact of homicidal death,

therefore, can be proved by telling and

inculpating circumstances which definitely lead to

the conclusion that within all human probability,

the victim has been murdered by the accused

concerned.”

124. So, from the observations made by the Apex Court, corpus

Judgment -S.C.630-08 -119- Exh.341

delicti or the facts of homicidal death, even can be proved by telling an

inculpating circumstance, which definitely leads to the conclusion that

within all human probability, the victim has met homicidal death. As

stated above, the aforesaid circumstance only leads to the conclusion

that the deceased Neeraj met with homicidal death.

Conspiracy and Motive

125. Now, let us turn to motive part of the case, on which, the

prosecution is heavily relying. As motive and criminal conspiracy are

interconnected with each other and finding on each issue would depend

upon the finding of other issue, therefore I would discussed both issues

together. It is case of the prosecution that accused no.1 was feeling

cheated by deceased Neeraj and deceased Neeraj was bluffing with her

and using her, only on the pretext of providing role in TV serial.

Therefore, accused No.1 was having grudge over deceased Neeraj and

according to the prosecution, this is the motive behind the murder of

deceased Neeraj, by the accused persons. Therefore, accused No.1 and 2

hatched criminal conspiracy to eliminate deceased Neeraj and in

pursuant to criminal conspiracy, on 6.5.2008 accused no.1 called Neeraj

Grover by making phone call to him to her flat at 201/B Dhiraj Solitare.

Thereafter accused no.1 called accused no.2 from Cochin and in morning

Judgment -S.C.630-08 -120- Exh.341

of 7.5.2008 both of them murdered Neeraj at flat no.201/B.

126. According to the ld. advocates for the accused Nos. 1 and 2,

had there been any conspiracy between the accused persons, the accused

would have prepared for murder of deceased Neeraj by preplaning with

the preparation of weapons and by taking deceased Neeraj to isolated

place. It is further submitted on behalf of the ld. advocates for accused

that the circumstances of the prosecution case, itself speak that there is

no criminal conspiracy between the accused persons to eliminate Neeraj.

127. I am conscious of the preposition that the direct evidence to

criminal conspiracy is hardly available and the criminal conspiracy is to

be gathered from the surrounded circumstances of the case and conduct

of the accused person. From the proved circumstance the court can infer

the existence of conspiracy.

128. Admittedly, it is the case of prosecution itself that accused

No.2 is a defence person and he, suddenly flew to Mumbai, without

obtaining leave from Naval Base, Cochin. It was very easy to come with

preparation of murder by bringing weapon with himself. But it is not the

case of prosecution that the accused No.2 had visited Mumbai with

preparation or with any weapon of assault to eliminate deceased

Neeraj. Further more, it is the case of prosecution that accused No.

Judgment -S.C.630-08 -121- Exh.341

called deceased Neeraj at her home by making call to deceased Neeraj, in

the night of 652008. But call details report shows that it is Neeraj who

made call to accused No.1 on her mobile. So, the call detail record is

contrary to the case of prosecution. As per the case of prosecution, after

murder, the accused no.1 went to Hypercity Mall for purchase of Big

Knife (Art.23) and bag for the purpose of disposing body of Neeraj; She

also borrowed car from Kiran Shriyan. These circumstances itself go

contrary to the theory of conspiracy. Had there been conspiracy, accused

would have prepared all thing in advance. Most important circumstance

which goes against the theory of prosecution regarding conspiracy, is

weapon of assault, Kitchen Knife (Art.23). According to prosecution

kitchen knife, was used to kill Neeraj Grover. I am unable to digest the

theory of prosecution of conspiracy. If it is a preplanned murder then

accused would not have used kitchen knife. The accused no.2 who was

then serving in Navy, who could have easily arranged the weapon of

assault to give definite design to conspiracy.

129. Ld. advocate for accused No.1 vehemently submitted that this

cannot be the motive for accused No.1, who had come to Mumbai to

foothold in the entertainment industry. According to the Ld. advocate

for the accused No.1, this is very trivial issue and no person, in all human

Judgment -S.C.630-08 -122- Exh.341

probability, would commit murder. Ld. advocate for accused No.2 also

vehemently submitted that the prosecution has come up with false case

of motive. Again, it has been brought on record that the accused No.1

had visited Mumbai in the last week of April, 2008. From the record, it

appears that friendship of accused No.1 and deceased Neeraj were only

of 10 days old and if according to the case of prosecution, deceased

Neeraj was trying for role in TV Serial for accused No.1, then why in the

passage of only a week or fortnight, accused no.1 would get frustrated,

when usually it takes considerable time to get a role in TV serial. Very

important aspect of the case is that the prosecution has not brought

anything on record to show the grudge of accused no.1 over Neeraj,

rather prosecution came with a case of intimacy between accused no.1

and Neeraj. Not only this, the Ld. advocate for the accused No.1 took me

evidence in respect of Press Conference, which is proved by defence

through (P.W.18) Rakesh Maria. In his interview dated 21.5.2008 during

investigation process, he briefed media, the case as of triangular love

story. Apart from it, the theory of conspiracy of prosecution has failed.

Therefore looking to the circumstance of the case, the weapon of assault

i.e. kitchen Knife, the theory of motive which is brought by the

prosecution does not seem to be probable. Pursuant to which, theory of

Judgment -S.C.630-08 -123- Exh.341

criminal conspiracy, which is put forward by the prosecution, only on

the call details between the accused No.1 and 2 on 652008 fails. Had

there been plan to eliminate deceased Neeraj, in pursuance to criminal

conspiracy between the accused No.1 and 2, then why accused No.2

would have called on the mobile of deceased Neeraj. Therefore, I find

substance in the arguments of Ld. advocates for accused Nos. 1 and 2

that the accused No.1 had no motive for murder of deceased Neeraj and

there was no conspiracy between the accused Nos. 1 and 2.

130. Now, let us see whether the circumstances, which are

brought on record by the prosecution would lead to the conclusion that

deceased Neeraj was murdered by both the accused or any one of them

and whether failure on the part of prosecution to prove the motive and

conspiracy, affects the case of prosecution.

(As the court is over, case is adjourned to 3062008.)(Dictation of judgment resumed on 3062008).

131. To complete the chain or form the chain of circumstances, the

prosecution has examined Vinod Kumar Mishra (P.W.13) Dhiraj Kukar

Shukla (P.W.15) and Kamlesh Premchand Jain (P.W.16). The

prosecution has also examined Vivek Jyotibhushan Tiwari (P.W.19) and

Vaishali More (P.W.20) to prove the visit of the accused No.1 and

Judgment -S.C.630-08 -124- Exh.341

purchase of Big Knife (Art.23). According to the prosecution, the

accused No.1 with intention to cause disappearance of evidence of

murder of Neeraj Grover, visited Hypercity Mall and purchased curtains,

room freshener and bread knife for chopping the body of deceased

Neeraj.

132. It has been brought on record through Vivek Tiwari (P.W.19)

that he was serving as a cashier on 752008 in Hypercity Mall at

Malad. According to this witness, as per system of Mall, a customer has

to select the item and thereafter has to come to the cash counter; he has

to show articles purchased to the cashier; the cashier then makes entry

in the computer on the basis of barcode; the amount automatically

enters as per barcode. According to this witness, a girl came to his

counter at about 12.30 p.m.; she took bedsheet of maroon colour and

came to cash counter and showed those articles to him; he then scanned

barcode of the said articles, however, the girl returned comb; thereafter,

this witness has prepared bill for the amount of Rs.599/. According to

this witness, said amount was paid by the said girl by using debit card of

HSBC bank. This witness has identified the said girl, as accused No.1 in

the dock. According to the prosecution, this witness has also identified

accused No.1 in TI parade dated 1462008 conducted by (P.W.23)

Judgment -S.C.630-08 -125- Exh.341

Sharad Vichare.

133. From the mouth of (P.W.20), Vaishali More, it has been also

brought on record by the prosecution that on the same day, the accused

No.1 purchased traveling bag, room freshner, curtains and bread knife,

having bar code of 100000432. It is deposed by (P.W.20) that in the

afternoon, one lady came to cash counter to pay the amount of the

articles, which she purchased. According to deposition of this witness,

accused No.1 purchased curtains of pink color, bread knife, luggage bag

and room freshner ; total amount of said articles was Rs.1776.

Accordingly, she prepared bill. she gave her Rs.2000/ and this witness

had to pay Rs. 224/ after deducting bill amount; but as there was no

change, she asked for 4 rupees change; on this point, the lady customer

told her that 'this is all nonsense'. This witness however took change

from adjacent counter and gave her Rs.224. This witness also identified

the said lady as accused No.1 in the dock. According to the prosecution,

this witness identified the accused no.1 in the test identification parade

dated 1462008.

134. The defence has initially disputed the visit of accused No.1

to Hypercity Mall, however, by examining (D.W.3) Maria Vironica

Susairaj, It has been brought on record that on 752008, she had been

Judgment -S.C.630-08 -126- Exh.341

to Hypercity Mall along with (D.W.3) her sister Maria Veronica Susairaj.

HDFC Bank swapping slip of Hyper City Mall (Art.40) also goes to show

that there was purchase for Rs.599/ on Debit Card

no.4346765087879915 of HDFC Bank. HDFC Debit card

no.4346765087879915 has been brought on record (Art.42), which

bears name of Accused no.1. This card Admittedly belongs to Accused

no.1. Therefore the version of Vivek Tiwari gets corroboration from

HDFC swap Slip of Hypercity Mall (Art. 40) that on 7.5.2009 at about

12.30 P.M. accused no. 1 visited Hypercity Mall. The prosecution has

also produced the copy of invoice of Hypercity Mall, which is been

regularly maintained by Hypercity Mall. The Invoice was also brought

on record as (Art.41), which has been issued in the course of business by

Hypercity Mall, which is admissible u/s. 32 of Indian Evidence Act.

Therefore, this bill also goes to corroborate the version of (P.W.20)

Vaishali More that the accused no.1 purchased Bags. It is also argued on

behalf of the ld. advocate for the accused No.1 that it was not possible

for Vaishali More to identify the accused because usually, there used to

be various customers who visit the mall everyday, but examinationin

chief of this witness goes to show that there were exchange of words

between this witness and accused No.1. This might be reason for the

Judgment -S.C.630-08 -127- Exh.341

witness to identify the accused no.1. The TI parade dated 1462008 of

accused No.1 is also disputed and (P.W. 23) has been crossexamined at

length to show that no identification parade was conducted in presence

of these witnesses.

135. The accused No.1 has examined (D.W. 2) and brought on

record the jail register of Byculla jail, where, according to (P.W.23), test

identification parade was held. Bare perusal of this register goes to show

show that there are entries in respect of entrance of Sharad Vichare

(P.W.23), witnesses to memorandum panchnama as well as entrance of

Vivek Tiwari (P.W. 19) and Vaishali More (P.W.20) inside jail. So, this

document rules out any possibility of not conducting TI parade in

presence of panchas. Much has been argued on this aspect by the defence

that TI parade was not conducted before the panchas, rather Sharad

Vichare (P.W.23) was crossexamined at length only on panchas, but at

the end of day, the entries in Jail Registers (Exh.285) washed the entire

cross of Sharad Vichare (P.W.23) by advocate for the accused No.1 in

respect of the panchas to TI Parade.

136. Prosecution has also examined Rajendra Bagwani, employee

of Hypercity Mall. He had produced before the police chopper (bread

knife ) having barcode 100000432(Art.43). According to this witness, in

Judgment -S.C.630-08 -128- Exh.341

Hypercity Mall, the article having bar code No. 100000432 is a bread

knife. It will be worthwhile to note here the evidence of Rajendra

Ramchandra Malve (P.W.36) Asst. Chemical Analyser of FSL Kalina to

whom (Art. 23) chopper and (Art.43), sample chopper were sent for

clinical examination. It is deposed by this witness that after analysing,

he found hue(appearance) physical dimension and composition of

metal and both Big knife(Chopper) (Art.23) and sample chopper(big

Knife) (Art. 43) are one and same by report dated 2162008 (Exh.170).

Therefore, bill of Hypercity Mall(Exh.110) of big knife (Art.23), the

version of (P.W. 36) Malve also corroborate version of (P.W.20) Vaishali

More that the accused No.1 made purchase of sport bag, bread knife,

chopper, room freshner and curtains from Hypercity Mall on 752008.

137. It is also the case of prosecution that after returning from

Manor, the accused No.1 went to the shop of Kamlesh Premchand Jain

(P.W.16), who deals with mattresses. It is brought by the prosecution

that on the next day, the accused Nos. 1 and 2 visited shop of Kamlesh

Jain (P.W.16) for selection of cloth of mattress covers. Kmalesh Jain

(P.W.16) has testified that when he was at his shop, which is also at

Chincholi Bunder road, one girl came to his shop for change of cover of

mattresses. He told the said girl to give her name and address; she

Judgment -S.C.630-08 -129- Exh.341

insisted to send a person with her and she will state about the work to

said person. Therefore, on his directions, Sadikram and Mehboob went

there and brought two mattresses, both had no covers. It is further

version of this witness that on 852008, at about 11 to 11.30 a.m., said

lady again came to his shop, a young smart boy was with her; they

inquired about the work of two mattresses, both had discussion and they

selected cloth for preparing the covers. Lady stated her name as Maria

and address as B201, Dhiraj Salitare and accordingly he told to write

her and address to his orderly. This witness has identified in the court

the said lady and a young smart boy as accused Nos. 1 and 2 respectively.

This witness has been crossexamined by defence, much on the point of

insertion of entry (Exh.98) in order book (Art.39) at the instance of

police. I have held that the entry (Exh.98) does not appear to be

inserted latter on. Much has been argued on the point of TI parade, but

in view of earlier reasons, on the same point, I do not find substance in

the arguments of the ld. advocate for the accused No.1 that TI parade

was not properly conducted. Not only that, the entry at (Exh. 98) in

order book (Art.39) also corroborate the version of Kamlesh Jain

(P.W.16).

138. In order to show that the accused attempted to cause

Judgment -S.C.630-08 -130- Exh.341

disappearance of evidence and to complete the chain of circumstances,

Dheeraj Shukla (P.W.15) has been examined. Through this witness,

accused No.1 got the passage painted to conceal the blood spots

appearing on outer wall of kitchen. This witness has testified that he

knows the accused No.1. The evidence of this witness is already

discussed with the conclusion that accused No.1 got flat through this

witness from Estate Agent Sandesh Shirke (P.W.23). According to this

witness, he is painting Contractor and he helped the accused No.1 in

getting flat No.201 at Deeraj Solitare. Let us see what this witness has

deposed on the incident of 752008 and 852008. According to this

witness, at about 9 to 9.30 p.m., on 752008, accused No.1 made

phone call to him and showed her wish to paint flat No.201. She also

told him to come with labourers and painters on the next day.

Accordingly, he and his painter Mohd. Shaif went to the flat on the next

day at about 10 to 10.30 a.m.; a gril was there inside the flat; she left the

flat and went to other flat on the same floor. A boy of 2526 years old

was in the flat. After talking to accused No.1, the amount of the painting

was fixed. Accused No.1 told him that bed room should be painted first.

This witness has identified the boy who was present in the said flat as

the accused No.2 in the dock. It is further testimony of this witness that

Judgment -S.C.630-08 -131- Exh.341

on entering in the bed room, he found some black spot on the wall and

on outer wall of bath room. It is further testimony of this witness that he

asked Maria as to the spots, as the flat was recently given to her and the

spots were not there; Maria gave explanation to him that spots occurred

while shifting the articles.


Sharif Shaikh that witness is planted by the police to complete the chain

of circumstance. Let me state that this flat was taken by accused No.1

with the help of Dheeraj Shukla (P.W.15). Not only that, his version is

corroborated by Mayuri Prajapati(P.W.2), who happens to be neighbor

friend of accused No.1, as she in her deposition, has deposed that when

on 852008, she visited the flat of accused No.1, the painter arrived

there. Though it has been brought on record that there is some

omission in respect of word 'painter' and 'painters' I do not think that

said omission is of much significance to discard the testimony of Mayuri

Prajapati (PW.2) and Deeraj Shukla (P.W.25), and there is no reason

why this witness will testify falsely. Hence, I do not find force in the

arguments of the ld. advocate for the accused No.1 that this witness

cannot be believed.

140. Let us turn to other witness, which has been examined to

Judgment -S.C.630-08 -132- Exh.341

connect the accused No.2 for causing disappearance of evidence of

killing of deceased Neeraj and to complete the chain for establishing the

charges of murder against the accused Nos. 1 and 2. It is the case of

prosecution that while proceeding to Manor Wada, the accused No.2

purchased petrol from Vinod Kumar Ram Mishra(P.W.13); likewise, it is

further case of the prosecution that accused No.2 also purchased lighter

from Amar Bahadur Yadav (P.W.22). Let us see what has been brought

on record through deposition of this witness.

141. According to Vinodkumar Ram Mishra (P.W.13), he works at

Petrol Pump of Patkar brothers at Lokhandwala Andheri (East) and he

used to fill petrol in the car and used to collect money from the customer.

He was on duty on 752008 from 8 a.m. to 8 p.m.; a person aged about

25 to 26 years of age, came to Petrol pump at about 4 to 4.30 p.m.

having a plastic can with him; he told this witness that his vehicle is

lying 4/5 k.m. away and petrol is over, and therefore, he requested him

to give him petrol in his plastic can. Initially, he refused, however, said

person showed his identity card and stated that he is a big officer from

Navy and his wife is sitting in the car; therefore, on his request, he

delivered 5 liter petrol to him in a plastic can. This witness has

identified the said boy as an accused No.2 sitting in the dock and as per

Judgment -S.C.630-08 -133- Exh.341

memorandum panchnama; this witness has also identified the accused

No.2 in TI parade held in Aurthur Road Jail, before Sharad Vichare

(P.W.23). This witness has been crossexamined at length and in the

crossexamination, this witness stood with the reasons of identifying the

accused No.2, as he showed his identity card. It has been suggested to

this witness that the identity card cannot be boarded in wallet. But apart

from the suggestion, nothing has been brought on record. Rather his

version gets corroboration from Mrs. S.A. Shinde (P.W.37), Assistant

Chemical Analyser, who examined the articles which were recovered by

the police from the place, where from the remains of skeleton were

recovered on 2152008, at the instance of accused No.1. Her testimony

and report (Exh.176) goes to show presence of petrol residues on all

articles, which were recovered from the spot. Though an attempt has

been made that after catching fire, it will not be possible to get the

residues of petrol on the articles but this witness has denied the

suggestion.

142. Another submission, which is made by the advocate for the

accused Nos. 1 and 2 is that, his name was published in MidDay

Newspaper dated 2752008 in (Exh.302B). So, according to defence,

the prosecution was knowing the name of witness on 2752008 and his

Judgment -S.C.630-08 -134- Exh.341

statement is recorded, much after 2752008. Sum and substance of the

arguments of the ld. advocate for the accused is that there is delay in

recording statement of this witness. First of all, the names appearing in

the news column are different, and I doubt the complete authenticity of

news. Secondly the statements of Kiran Shriyan (P.W.11) , and Kamlesh

Jain (P.W.16)are recorded on 25.5.2008 i.e. within 4 days. Even

otherwise no prejudice is shown to have been caused to the accused and

this witnesses were available for crossexamination, their versions gets

corroboration from the circumstances. Rather in a case State of U.P. V/s.

Satish (supra) relied by the accused no.2, the apex court held that if no

explanation is sought from the witness regarding delay in recording the

statement of the witnesses, the defence cannot get help of the said

situation and defence in specific term has not sought explanation for

delay in recording the statement of this witnesses, from

PI Raorane (P.W.47).

143. Another witness Amar Bahadur Yadav(P.W.22) has deposed

that he runs a Panshop at Mumbai Ahmedabad Highway one k.m. away

from Telnaka, Wade Road; he used to sell Panbidi, cigarette, lighter and

other beverage. He used to open his shop at 8 a.m. and used to close at

8 p.m. Further testimony of this witness shows that on 752008, he was

Judgment -S.C.630-08 -135- Exh.341

sitting in his shop between 6.30 to 7 p.m.; one person aged about 25/26

years came and demanded lighter. This witness asked him to wait for 5

minutes as he had to search lighter; thereafter this witness gave lighter

to the said person. According to this witness, he had to search the lighter

because, it was the last piece of lighter in his shop. This witness also

identified accused No.2 as the same person, who had purchased lighter

from his shop on 752008. Memorandum panchnama dated 572008

also goes to show that this witness identified accused No.2 in TI parade.

This witness has been crossexamined on the point of memory. This

witness remains firm with the explanation that it was a last piece of

lighter with him and therefore, he made accused No.2 to wait for 5

minutes. This is the reason shown by him to identify the accused No.2.

This witness was not knowing accused No.2 prior to 752008 and there

is no reason why this witness will depose against the accused No.2.

Another possibility, which the advocate for accused No.2 apprehends that

at the instance of police, this witness has been planted. Inference

cannot be drawn readily. Why the police will implicate the accused No.2,

particularly when the accused No.2 was not known to the police. No

motive of the police for false implication has been brought on record.

Therefore, I do not find substance in the arguments of the ld. advocate

Judgment -S.C.630-08 -136- Exh.341

for accused No.2, and by crossexamination, the testimony of this

witness is not shaken. Hence, inspires confidence of the court.

144. Now, let us summarize the circumstances, which the

prosecution was able to prove:

● the relationship between the deceased and accused No.1;

● The concern of accused no.1 with flat No.201 in DhirajSolitare building;

● Visit of deceased Neeraj Grover at flat No.201 in the nightof 652008;

● Talk between the accused Nos. 1 and 2 on 652008;

● Exchange of calls between accused No.2 on mobile of deceased Neeraj;

● Accused No.2 suddenly flew to Mumbai, without obtaining leave from Navy Base;

● Visit of accused No.2 to flat No.201 in the morning of 752008;

● Putting the bags in Santro car at the lobby of Dhiraj Solitarebuilding;

● Recovery of remains of deceased Neeraj at Manor at the instance of accused No.1;

● Finding of blood stains of deceased Neeraj in flat No.201as well as in Santro car;

● Recovery of chopper at the instance of the accused No.2 and finding of blood of Neeraj on chopper;

Judgment -S.C.630-08 -137- Exh.341

● Recovery of weapon of assault kitchen knife (Art.25) at the instance of accused No.2 having blood of deceased Neeraj.

145. So, let us see whether all these circumstances, along with the

deposition of prosecution witnesses, Vindo Mishra (P.W.13),

Dhirajkumar Shukla (P.W.15), Kamlesh Jain (P.W.16), Vivek Tiwari

(P.W.19), Vaishali More (P.W.20) and Ajaybahadur (P.W.22), completes

the chain of circumstances, whereby the only inference in respect of

guilt of accused persons can be drawn. From the aforesaid

circumstances, if they all put together, one thing is crystal clear that

deceased Neeraj died at flat No.201, of Dhiraj Solitare building.

Likewise, the circumstances that blood of Neeraj Grover was found in

Santro Car; Keeping bags in Satnro car by the accused no. 1 and 2;

Santro car was used by the accused no. 1 and 2; and remains of Neeraj

were recovered from Manor Wada at the instance of the accused No.1;

coupled with version of (Prosecution witnesses No.13,15,16,19, 20 and

22), the only inference which can be drawn is that the accused Nos. 1

and 2 with intention to cause disappearance of body of deceased Neeraj,

took the body of deceased Neeraj in Santro car and the body was set on

fire at Manor Wada. So the circumstances unerringly pointing towards

the guilt of the accused and rule out any other hypothesis of causing of

Judgment -S.C.630-08 -138- Exh.341

disappearance of evidence by the accused no. 1 and 2 .

146. Let us turn to the incident, and visualise as to what must

have transpired in flat No.201. I have already held that the deceased

Neeraj died in flat No.201. Presence of accused no. 1 and 2 in falt no.

201 is also proved by the prosecution. It is also proved that the accused

no.1 and 2 also caused disappearance of evidence from flat no.201 and

attempted to dispose off the body of Neeraj Grover at Manor. At this

juncture, the ld. advocate for accused No.2 Mr. Wahab Khan vehemently

submitted that the prosecution has not proved the time of death of

deceased Neeraj and according to him, there may be one hypothesis that

Neeraj might have been murdered prior to arrival of accused No.2 at flat

No.201. Admittedly, in the cases which rest on circumstantial evidence,

all the other hypothesis are to be ruled out.

147. Let us see from this angle whether Neeraj has been killed by

the accused No.1, prior to arrival of accused No.2 in flat No.201,

Admittedly, in the cases of murder, motive plays an important role. As I

have already held that the accused No. 1 had no motive to kill deceased

The accused No.1 had no reason to kill deceased Neeraj. Through

Nishant Lal (P.W.9), the intimacy between the accused and deceased

Neeraj has been brought on record by the prosecution. Rather call detail

Judgment -S.C.630-08 -139- Exh.341

report of mobile of deceased Neeraj (Exh 216), goes to show that

accused No.1 herself did not call Neeraj, but Neeraj on his own visited

her flat. Coupled with a fact that the accused no.1, who is a lady, was

alone with Neeraj who had plenty of brawn (good physical strength)

than accused no.1, it would not be possible for Accused no.1, a girl of 25

years old, by her feminine and with a feeble body, to kill Neeraj Grover.

Rather, call detail report (Exh.216), goes to show that accused No.2

made a call on mobile of deceased Neeraj. Further version of Ajay

Shyam Pande (P.W.27), goes to show that when he returned from get

together, the accused no.2 was upset and nervous. As I have ruled out

the possibility of criminal conspiracy, but most important circumstance

which deposed by Ajay Pande (PW 27), that after phone call with his

fiancee, the accused no.2 was upset and suddenly the accused No.2

booked his ticket at 11.30 p.m. on 652008 for Mumbai, and inspite of

request by Ajay Shyam Pande (P.W.27), to go after taking proper leave, as

accused no.2 wanted to meet his fiancee, accused no.1, immediately.

The accused No.2, suddenly flew to Mumbai in that night itself. A

Defence Personnel, is expected to be obedient and have discipline. In

spite of having knowledge that a disciplinary action can be taken against

him, he flew to Mumbai, without obtaining leave. The accused No.2, who

Judgment -S.C.630-08 -140- Exh.341

went against the wishes of his parents, to get marry with the accused

No.1. This is obvious reason for accused No.2 to fly to Mumbai. The

only hypothesis, which appears in my mind is that after talk on phone

with accused no.1, accused no.2 came to know that an unknown person,

is with the accused no.1, in the late night in her flat and accused No.2

got upset.

148. Further circumstance that recovery of knife at the instance of

accused No.2 is also very material. The prosecution claims exclusive

knowledge of the accused no.2 as to place of knife(Art.25), the weapon

of assault. As such, the accused No.1 had no motive and there was no

conspiracy between the accused No.1 and 2 to eliminate Neeraj. The

circumstance that the accused no.1 allowed Neeraj, a young boy, to stay

at her flat in night with her, goes to show that the accused no.1 was also

unaware about leaving of accused No.2 from Cochin for Mumbai. The

circumstances also does not establish that accused No.1 even shared

common intention with accused No.2, in killing of Neeraj Grover.

Therefore, the only hypothesis which remains, that after his sudden

arrival at flat No.201, the accused No.2 noticed deceased Neeraj with the

accused No.1 in her flat and committed crime. Thus, the incriminating

circumstances which have been brought on record are overwhelming to

Judgment -S.C.630-08 -141- Exh.341

connect the accused No.2 with killing of deceased Neeraj Grover, and this

is the only conclusion, which is consistent with the guilt of the accused

and is inconsistent with his innocence.

149. It is worthwhile to mention here that Pankaj Shah (P.W.30)

has been examined by the prosecution to prove the confessional

statement of accused No.1. It has been brought on record through

(P.W.30) that on 2752008, accused No.1 was produced before him and

she was prepared to make confessional statement. She was given time of

a day to rethink over her decision to make confessional statement.

Therefore, she was sent to judicial custody for a day. It is further version

of this witness that on 2852008, at about 4.45 p.m. she was again

produced before him for judicial custody and two questions were asked,

which were asked on 2752008 and for that purpose, he again puts the

same question to her. It is further deposed that he noticed that accused

no.1 was not in tense or restless and that after verifying that she was

intending to make voluntary confessional statement on her own and

freely. (P.W. 30) proceeded to record the confessional statement of the

accused. It is further version of this witness that accused No.1 requested

him to record her statement in English. Therefore, English language was

used while recording confession of accused No.1 and accordingly, her

Judgment -S.C.630-08 -142- Exh.341

confession at Exh. (132A) was recorded.


No.2 that this statement of accused No.1, cannot be used against the

accused No.2 for various reasons. According to him, this is not

confessional statement, as it does not disclose the guilt of accused No.1,

therefore it is exculpatory statement of accused No.1. Nowhere, a

confession has been defined. According to the ld. advocate for the

accused No.2, a confession is an admission of a guilt, which is not

appearing in (Exh.132A). It is also submitted on behalf of the accused

No.2 that confessional statement of accused No.1 is not voluntary and is

retracted by accused No.1, therefore, retracted confessional statement

cannot be used, particularly against coaccused.

151. Let us deal with the first submission of the Ld. advocate for

the accused; whether the statement at (Exh. 132A) is exculpatory

statement and whether it amounts to confession or not? Let me re

produce the statement of accused No.1, which is recorded by (P.W.30) at

(Exh.132A):

“ My name is Miss. Maria Joseph Susairaj. On the day

of incident, I was staying at Malad (West). On 6th

May, 2008, I took a flat on rent at Malad (W). I was

Judgment -S.C.630-08 -143- Exh.341

knowing deceased Neeraj Grover since March,

2008. He was my friend. Since March 2008, I was in

contact of him on phone. I had met everyday from

2942008 till the date of incident. On 6th May, 2008,

I was shopping for whole the day for the household

articles for my house. On that day at about 10.30

a.m. Neeraj called me on my cell phone and he had

called me from his house. I had expressed my enability

to meet him on that day because I was tired. At about

11.00 p.m. when I came out from house of my

neighbuor after taking a bath there, I saw that Neeraj

was at the door of my house. I had introduced him to

my neighbour friend Miss Mayuri. We thenentered into

my house. I asked him as to why he came to my

house. He said that he want to give help to arrange

my house with the things purchased by me on that day.

At about 11.30 p.m. I got the phone call from

Mr. Emil Jerom to whom I intending to marry. I told

him that Neeraj is at my home. Mr. Emil gave me

phone call from Cochin. The phone battery of my Cell

phone by that time was discharged. Then Mr. Emil

had called me on the cell phone of Mr. Neeraj. He had

talked with me. I had told Mr. Emile that Mr. Neeraj is

acting very funny on that day. He asked me whether he

should come with me. I told him that after dinner

Neeraj will go. This was happened at about 12.30 p.m.

Judgment -S.C.630-08 -144- Exh.341

Then I had a dinner with Mr. Neeraj at my home. Mr.

Neeraj was busy with his phone call. By that time, I

was cleaning my house. Though Mr. Neeraj was called

by his friends to attend the party, he did not go. I have

also refused to join to him to party of his friends. Mr.

Neeraj had a work in morning at Malad. So he had

requested me to allow him to stay into my house so

that he will attend the work. I said that it is o.k. and

he stayed at my house.

On 7th May, 2008, at about 7.30 a.m. door bell

of my house rang. I had opened the door. I found Mr.

Emil was was appeared at my house. He directly

entered into my house. By that time, Neeraj also

woke up. I followed Mr. Emil from his behind. Mr.

Neeraj had asked me whether Emile is my boy friend.

Mr. Neeraj had recognized him because he had seen

our photographs. Mr. Neeraj was also knowing that I

will get married with Mr. Emil.

Immediately, thereafter, Mr.Emil started giving

fist blows to Mr. Neeraj. Both are started fighting with

other. I could not control them. Both had pushed me.

So, I fell down. At that time, when I got up, I saw that

Emil stabbed Neeraj by means of knife of my kitchen. I

tried to hold the knife stabbing to Neeraj by Emil. I

had also sustained injury on my right hand palm.

Again Mr. Emil pushed me and started stabbing Mr.

Judgment -S.C.630-08 -145- Exh.341

Neeraj by said knife. I saw Mr. Neeraj fell down and

Mr. Emile giving kicks to Mr. Neeraj. I was screaming

by said incident. Mr. Emile closed my mouth and he

also threatened me to kill. He let me on the bed and

raped on me. He never put the knife down. This thing

was happened at about 8.00 a.m. He had also beaten

me and threatened me not to tell this incident to any

one. By this time, Neeraj was found dead. I told Mr.

Emil to take Mr. Neeraj to hospital. He told me that

Mr. Neeraj would not die for 4 to 5 hours. He asked

me to go inside the bathroom and take bath. Then

Mr.Emil came inside the bathroom and again raped

me.

After 11.00 A.M. Mr. Emil had asked me to call

one of the friend of Mr. Neeraj and asked me to inform

him that Neeraj had left my house at 12.30 night and

he has forgotten his cell phone in my house. Mr. Emile

had also told me that I should inform that he should

come to my home and collect cell phone of Mr. Neeraj

from my house.

I had called Mr.Nishant on cell phone of Mr.

Neeraj. He spoke to me and tell him accordingly as

directed by Mr. Emil. Mr. Nishant did not appear to

my house.

Then Mr. Emil had dragged the body of Mr.

Neeraj inside the portion of bathroom of house.

Judgment -S.C.630-08 -146- Exh.341

Mr. Emile then told me to go and purchase bags

and curtains from Hypercity Mall at Malad. He did

not tell me for what purpose he asked me to purchase

these things. He also instructed me to buy a knife,

room freshner. I bought all these 4 things and came

back to my house. When I was away from my house

for buying these things, Mr. Emil was talking with me

on cell phone. When I came at my house, he had

emptied two of my big bags. I had handed over the

knife to him. He asked me not to come inside the

bathroom. He had also emptied all those polythine

bags, which I was having in my home with the things

purchased earlier by me. He asked me to clean the

hall which was blood stained. He asked me whether

any of my friend have any car because he could not

tried to contact his friends for having car.

At about 3.00 p. m., I called my fiend Mr.

Kiran who is staying at Four Bungalows, Andheri (W).

By that time, Mr. Emil had chopped into pieces the

entire dead body of Mr. Neeraj. Mr. Kiran had asked

me on my phone to collect the car by coming at his

house. Myself and Mr. Emil both went to collect the

car by hiring autorickshaw. Kiran had asked me as to

why I want his car. I tell him that Mr. Emile want to

go to his town. So he handed over his car. We took the

car of Mr. Kiran and came to Petrol pump in

Judgment -S.C.630-08 -147- Exh.341

Lokhandwala area. I was driving the said car. When I

was filling the petrol in the car, Mr. Emil got down and

bought two plastic cans. Then he filled one of the can

with 5 litre petrol from the said petrol pump. We then

came to my home. He then put all the things of Neeraj

with chopped pieces of his body inside two big bags and

also torn two covers, mattresses into the pieces. He has

covered it with the bags. He brought all those bags

and put in the car.

He asked me to drive the said car. The car

was driven by me Western Express High way. I was not

knowing the area where I was asked to drive the car.

While driving the car, I had cross 3 Toll post then he

asked me take 'U' turn. Then, I took the car to left

cross road. In between the 3rd and 2nd Toll post of

Western Express Highway. Then I drew the car on

Kachcha road. It was about 7.00 to 7.30 p.m. I had

stopped the car near small piece of land near to the

roadside. He took out all the bags from the car one by

one and carried to 15 meters away from car. On the

Express Highway itself, he get filled another can with

Petrol and also bought one lighter. I only went near to

him to give him the cans of petrol. I came back and

sat in the car. He had poured the petrol over all

these bags and set on fire by lighting it with lighter.

He then returned to car. he sat with me and I drove

Judgment -S.C.630-08 -148- Exh.341

the car till we reached to Express High way. On the

Righway Mr. Emil started driving car. Then we came to

my house. As I had injury to my palm I could not

work, so Mr. Emil had started cleaning my house for

removing blood stains. On the way, he had asked the

shopkeeper of matresses for stiching of mattresses

cover. Two boys from the shop were joined to us and

they took away matress for stiching of covers. We

returned to back out home at about 9.30 p.m. Mr. Emil

asked me to call the broker so that he can arrange for

getting paint the walls of my house. Accordingly, I had

called the broker for getting paint to the walls of my

house.

At about 10.30 p.m. friend of Neeraj Mr.

Nishant called me on my cell phone. He informed me

that Neeraj could not found, so he is worried. He came

to my building to collect the cell phone of Mr.

Neeraj. One Mr. Deepak was also with him. I gave

cell phone of Mr. Neeraj to Nishant. They also asked

me to join them for lodging police complaint about

missing of Mr. Neeraj. I went along with them to

Malad police station, but Mr. Emil remained at my

home. I don't know what complaint was lodged to

police station by Mr. Nishant. My statement was also

recorded at Malad police station. I had made a false

statement at Malad police station because I was

Judgment -S.C.630-08 -149- Exh.341

directed to do it by Mr. Emil. I returned back to my

home with the police office at 3.00 A.M. in the night.

Police officer also met Mr. Emil and asked him to come

in the morning at police station for recording of his

statement.

On 8th May, 2008, in the morning, Mr.

Emil had took my laptop bag, hand bag and one bag

and put the foot mat in the said bag and went to

throw it. All these things were having blood stains. By

8.30 A.M. we went to house ofMr. Kiran and returned

the car to him. I also given the key of house to broker

to paint to my house. By 9.00 A.M. we went to police

station. A whole day, we were at police station till

3.00 p.m. We were again called in evening at police

station. After attending the police station Mr. Emil had

catch the flight for Cochin and left Bombay. I

remained in the police station till next day afternoon. I

had informed to my relatives and my family

members. My brother and sister came to Bombay

from Mysore.

All the way, I had been in contact on the

phone with Mr. Emil till I confessed before the police.

All the while, he was threatened me not to tell

anything to the police otherwise, he will kill me and

also kill himself. I say that Mr. Emil had killed Mr.

Neeraj in front of me. I had also taken the police to

Judgment -S.C.630-08 -150- Exh.341

the places where Mr. Emil burnt the body of Mr.

Neeraj.”

152. It is submitted by the ld. advocate for the accused that from

the statement of the accused No.1, it appears that whatever she has

done, is done under the threats of killing and therefore, it cannot be

termed as an offence. Sum and substance of the arguments of the ld.

advocate for the accused No.2 is that she saved herself from charge of

killing of deceased Neeraj in (Exh.132A). Therefore, the statement is

exculpatory so far as accused No.1 is concerned. Let me state here that

the record shows that accused No.1 had visited Hypercity Mall at about

12 p.m., she purchased articles from Hypercity mall at about 12.30 p.m.

Further, she went to borrow car from Kiran Shriyan (P.W.11). It was

possible for her to run away after leaving flat No.201 or make cry and

take the help of neighbours. After purchasing chopper (Art.23) and

curtains, she returned to flat No.201, and again went to borrow the car

from Kiran Shriyan (P.W.11), and returned to flat No.201. All these

conduct of accused No.1 do not suggest that what she has confessed, is

exculpatory. It is worthwhile to mention here the case of Aghnoo

Nagesia Vs. State of Maharashtra reported in AIR 1966 S.C. page

No.119, wherein Apex court has held that:

Judgment -S.C.630-08 -151- Exh.341

“confessional statement includes not only additional offence, but

also other addition of incriminating facts, relevant to the offence, such as

motive, preparation, absence of provocation, concealment of weapons

and subsequent conduct, throw light on the gravity of offence and

intention and knowledge of the accused.” The court has also observed

that “each and every admission of incriminating facts contained in the

confessional statement is a part of confessional statement.”

153. Another submission of the ld. advocate for the accused No.2

is that when the accused No.1 cannot be connected with the charge of

murder of Neeraj Grover then how her confessional statement can be

relied against the coaccused. Let me state what is the Mandate of section

30 of the Indian Evidence Act, that both accused should be tried jointly

for the same offence, then only confessional statement of coaccused is

admissible against other accused and then only court may take into

consideration such confession. There is no dispute that the accused are

being jointly tried for the offence punishable u/s.302, 201 r/w sec. 120B

or in the alternative 34 of I.P.C.

154. In the case of Prakash Dhawal Khairnar v/s. State of

Maharashtra reported in 2002 (2) S.C.C. page 35, the apex court

held that in identical situation, which is in the present case, arose before

Judgment -S.C.630-08 -152- Exh.341

the Apex court wherein father and son were charged with the offence of

302 r/w 34 of I.P.C. and son made confessional statement that his father

committed murder of his brother and his family, and he has only assisted

his father in causing disappearance of evidence of murder; the Lower

Court convicted both the accused u/s. 302 of IPC, however, Bombay High

Court acquitted son from the charge of 302 and convicted him u/s. 201

by relying on his confessional statement against his father. The matter

went up to Supreme Court, wherein the Apex Court has held that

conviction of father Accused no.1 for the offence for which he was

charged was based on circumstantial evidence, conviction against son

Accused No.2 for offence punishable u/s. 201 was also based on

circumstantial evidence and the circumstantial evidence, which gets

corroboration from confessional statement of accused No.2 son for

connecting the accused No.1 with the crime, could be relied upon, as the

confessional statement was not relied as substantive piece of evidence

and it was used only for lending assurance to prove the circumstance.

The apex court further held that the confessional statement of accused

though exhonorate him from principal offence, and connecting with

minor offence, still it can be relied against him and coaccused. The

Apex Court upheld the Judgment of Hon'ble High Court and certified

Judgment -S.C.630-08 -153- Exh.341

that confessional statement can be relied. In view of the ratio laid down

by the Apex court, (supra), I do not find substance in the arguments of

the ld. advocate for the accused No.2 that (Exh.132A) is not

confessional statement, therefore, the confessional statement of the

accused No.1 cannot be discarded on this ground, if otherwise it can be

relied.

155. Another submission, which the ld. advocate for the accused

Nos. 1 and 2 submitted that the accused No.1 has retracted her

confessional statement by giving suggestion to ld. Magistrate Pankaj

Shah (P.W.30). I have gone through the record, it appears that

suggestion has been put to the witness by accused No.1 that

confessional statement was given under duress and on the threat of

police. Now, question arises before me is whether a retracted confession

can be relied against the maker of it and particularly against coaccused.

Before going to this aspect, let us see whether the confessional

statement was made voluntary ?

156. From the version of Pankaj Shah (P.W.30), which is already

discussed above, goes to show that there is full compliance of section 164

of Cr.P.C. The version of (P.W.30) also goes to show that he has taken all

precautions to search, whether the confessional statement of the accused

Judgment -S.C.630-08 -154- Exh.341

No.1 is voluntary. The circumstances of the case, which have been

brought on record, corroborate with the confession and speaks at

fullest and on material aspect. The fact that the accused no.1 kept mum

for 2 and half years and she did not attempt to make any application

either before the Ld. M.M. when she was produced during remand

application, or before this court, till Pankaj Shah(P.W.30) was examined.

But the confessional statement, also gets corroboration from the

circumstances, which have been brought on record. The following

comparative Table would show that the confession statement is

corroborated by the other evidence and proved circumstance.

Confessional statement Evidence/proved circumstance

On 6.05.2008 Neeraj called accused no.1 Call detail report(Exh216)

Neeraj came to accused no.2 and accused Version of P.W.2 Mayuri

no.2 introduced him to Mayuri Prajapati Prajapati

Call to accused no.1 from accused no.2 Call details repor (Exh.207A).

Battery of her mobile discharged, hence Call Detail Reportcall from accused No.2 on mobile of (Exh.216)Neeraj.

Talk of Neeraj with his friends late night Evidence of PW9 Nishant Lal;

Call detail report Exh. 216

Judgment -S.C.630-08 -155- Exh.341

Arrival of accused no.2 in flat no.201 Evidence of PW.6 Kundan Jha,

Accused took knife of her kitchen Recovery of Knife (Art.25)

Accused no.2 stabbed Neeraj Blood of Neeraj at flat no.201;Recovery of Knife having blood of Neeraj at the instance of A.2

Accused No. 1 tried to hold knife Injury on her right palm; injury while accused No.2 stabbing Neeraj certificate Exh. 100 Evidence of

PW.17 Dr. Shinde

On direction of accused no.2 calling P.W. 9 Nishant Lalto friend of Niraj Grover stating that Neeraj left her flat, leaving his Mobile

purchase of Bag, curtains, Big Knife PW19 Vivek Tiwari; PW 20 Vishali room Freshner and curtain More; Debit card; Bills Hyper

city

Lending Car PW11 Kiran Shriyan

Putting body in bags and putting bags PW.10 Satishsingh and DNA in Santro car report of blood found in Santro

Purchase of Petrol by Accused no.2 PW 13 Vinod Mishra

Visit of Nishant Lal to flat no.201 PW.9, 33, 34 Missing and accompanying with him to Police complaint Exh.138;Herstation for missing complaint. statement Exh.229

Change of Matress PW.16 Kamlesh Jain: Entry Exh. 98 in order book Art. 39

Paint to flat PW 15 Dhiraj Shukla; PW 2 Mayuri Prajapati

157. From the above comparative table it is manifest that the

Judgment -S.C.630-08 -156- Exh.341

confessional statement of the accused no.1 in corroborated by the proved

circumstances to its fullest. The confessional Statement was made within

a week after the crime was detected. It was not retracted by the accused

no.2 for almost two and half years. No material has been brought on

record that it was taken under duress, rather it was made voluntarily.

She was given a day to rethink before making confessional statement.

Not only this at the time of Investigation, the press conference, contained

in CD (Art.49) which was briefed by then joint commissioner, goes to

show that the police during investigation revealed the same theory,

which is mention in the confessional statement. Therefore, the

retraction by accused No.1 is for obvious reason to save herself and co

accused from legal punishment. Very surprisingly, though the

prosecution examined Pankaj Shah (P.W.30) through whom confessional

statement of the accused no.1 is proved, but prosecution went on back

foot and submitted that they do not rely on confessional statement. This

appears to be a deliberate attempt on the part of prosecution to get

severe punishment easily for both of the accused. Accused No.1 also

purposefully retracted from her statement to save herself and accused

no.2. But the court is not helpless and cannot sit as a mere spectator.

Ultimate object of the court is to go to the route of the case and find out

Judgment -S.C.630-08 -157- Exh.341

the truth. Now, let us see whether the retracted confession can be used

against the coaccused.

In the case of Ramprakash V/s. State of Punjab reported in

AIR 1959.S.C. Page 1, The apex court in para 6 has held that :

“It will be clear from the term of this section that where more person than one are bing tried jointly for the same offence a confession made by any one of them affecting himself and any one of hia coaccused can be taken into consideration by the court. The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the coaccused or the confessing accused. Accordingly the provisions of the Evidence Act do not prevent the court form taking into consideration a retracted confession against the confessing accused and his coaccused. Not a single decision of any of the courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a coaccused.”

The apex court further observed that :

“ordinarily, as a matter of prudence and practice, court would not act upon retracted confession to convict a coaccused, without strongest and fullest corroboration in the full sense of material particular.”

158. Ultimately, the Apex court in the said case also taken aid of

retracted confessional statement of the accused against him and co

accused.

159. As I have already held that circumstances, which are brought

Judgment -S.C.630-08 -158- Exh.341

on record corroborate fullest confessional statement of the accused No.1,

therefore, even a retracted confession can be relied on.

160. Now, let us discuss when and in which situation, the

confession of coaccused can be taken into consideration. Section 30 of

Indian Evidence Act empowers the court to take the confessional

statement of the coaccused into consideration. The ratio laid down by

Privy Council in Bhagwan Shahu Case reported in AIR 1949 P.C. 257,

which was latter relied in Kashmira Singh reported in AIR 1952, SC 159,

and is being followed till today in catena of the Judgment by the apex

court. In the case of Bhagwan Shahu, the privy council laid down ratio;

“The proper approach or dealing with the confession is

first to marshal the evidence against the accused

exclude confession altogether from consideration and

see whether if it is believed, conviction could safely be

based on. It it is capable of believe independently of

the confession, then of course it is not necessary to

call confession in aid.”

Privy Council further held that

“But cases may arise where a Judge is not prepared to

act on other evidence, has stand even though believed, it

Judgment -S.C.630-08 -159- Exh.341

would be sufficient to sustain a conviction. In such an

event, the Judge may call in aid the confession and use

it to lend assurance to other evidence and thus fortify

himself in believing what, without the aid of confession,

he would not be prepared to accept.”

161. This principle is followed in series of judgments by the apex

court. In the present case, excluding the confessional statement, the

circumstances, which have been brought on record by the prosecution,

are sufficient to connect the accused No.2 with killing of Neeraj Grover.

Taking into consideration the ratio laid down by Privy Council, and

which is being followed by Apex court, I think aid of confessional

statement can be taken in this case for certification or for lending the

assurance to the guilt of the accused. I have gone through confessional

statement of accused No.1 carefully. The confessional statement goes to

corroborate the circumstances, which have been brought on record to

connect the accused No.1 with killing of Neeraj Grover. The relevant

portion is produced here:

“On 7th May, 2008, at about 7.30 a.m., door bell of my house

rang. I opened the door, I found Emil had appeared at my

house; he directly entered into my house ; by that time

Judgment -S.C.630-08 -160- Exh.341

Neeraj also woke up; I followed Mr. Emil from his behind.

Mr. Neeraj asked me whether Emil was my boyfriend, Mr.

Neeraj recognized him because he had seen our

photographs;

Mr. Neeraj was knowing that I will get married to Mr. Emil;

immediately thereafter, Mr. Emil started giving fist blows

to Neeraj. Both started fighting with each other, I could not

control them, both had pushed me; so I fell down, at that

time when I got up, I saw that Emil stabbed Neeraj by means

of knife of my kitchen. I tried to hold the knife stabbing

Neeraj by Emil; I had also sustained injury on my right hand

palm. Again Emil pushed me and started stabbing Mr. Neeraj

by said knife. I saw Mr. Neeraj fell down and Mr. Emil was

giving kicks to Mr. Neeraj; I screaming by said incident.

Mr. Emil closed my mouth. He also threatened me to kill;

he let me on the bed and raped me; he never put the

knife down; this thing happened at about 8 a.m. He also

beaten me and threatened me not to tell this incident to any

one ; by that time Neeraj was found dead.”

162. Aforesaid part of confessional statement corroborates the

circumstances which have been brought on record by the prosecution

with only hypothesis that accused No.2 killed Neeraj. So the proved

incriminating fact and circumstances, taken cumulatively, should form a

chain so complete that there is no escape from the conclusion that with

Judgment -S.C.630-08 -161- Exh.341

in all human probability the accused no.2 killed Neeraj Grover. The

incriminating circumstances are incapable of explanation of any other

hypothesis than that of guilt of accused no.2.

163. Further part of confessional statement is about causing

disappearance of evidence of killing Neeraj Grover. The circumstances,

which have been brought on record through Satishsingh (P.W.10), Vinod

Mishra (P.W.13), Dhiraj Shukla (P.W.15), Vivek Tiwari (PW19), Vaishali

More (PW20), Ajay Bahadur Yadav (P.W.22) also go to connect the

accused Nos. 1 and 2 for causing disappearance of evidence of killing

Neeraj by screening themselves from legal punishment, which is also

certified by the confessional statement of the accused no.1. Therefore I

have no hesitation to hold that accused Nos. 1 and 2 with the intention

to causing disappearance of the evidence of killing Neeraj Grover,

attempted to destroy the evidence of killing of Neeraj Grover.

164. It is submitted on behalf of the APP that as such, the

prosecution has proved that it is the accused No.2, who stabbed the

deceased Neeraj by means of knife (Art.25). Therefore, according to him

he has committed murder of Neeraj Grover. As against this Ld. Adv. for

accused submitted that even if the case of prosecution is accepted , the

act of the accused comes under exception 1 to Murder . According to him

Judgment -S.C.630-08 -162- Exh.341

for bringing the act within the ambit of section 302, the prosecution has

to prove that accused No.2 had left Cochin with the intention to kill

Neeraj. Let me reproduce the exception 1 to Murder.

Exception 1 to Sec.300 of IPC

When culpable homicide is not murder :

“ Culpable homicide is not murder if the offender,

whilst deprived of the power of selfcontrol by grave

and sudden provocation, causes the death of the

person who gave the provocation or causes the

death of person who gave provocation or causes the

death of any other person by the mistake or

accident.”

165. By careful reading of confessional statement as well as other

circumstances, which have been brought on record, it does not appear to

me that the accused No.2 had premediation to kill deceased Neeraj

Grover. As such, circumstances, which are proved by the prosecution go

to show that the accused No.2 left Cochin suddenly and without any

preparation. It is also not been brought on record that the accused No.2

entered into flat with arms. Rather looking to the weapon of assault,

which is kitchen knife(Art.25), goes to show that accused No.2 had no

premeditation to kill deceased Neeraj. Admittedly, the accused Nos.1

Judgment -S.C.630-08 -163- Exh.341

and 2 were intending to marry each other. The accused No.2 had gone

to the extent of going against the wishes of his parents and decided to

marry accused No.1. The call detail report of deceased Neeraj, goes to

show that in the night of 652008, accused No.2 made a call on the

mobile of Neeraj, which also gets corroboration from confessional

statement that as the battery of the mobile of accused no.1 was

discharged therefore the accused no.1 and 2 talked on the mobile of

Neeraj Grover. It is also brought on record that the accused No.2 and

Neeraj were not knowing each other. Obviously, for a fiance, who came

to know that young boy is in flat with her fiancee, a normal man will

lose control. The confessional statement of the accused No.1 also shows

that incident of stabbing happened in spur of moment. To find a young

man with his young fiancee, that too during odd hours, obviously, for a

fiance, is a provoking situation, to lose his self control. So a prudent

man will lose his self control in the situation mentioned above, and in

this case accused no.2 is a defence personal. Confessional statement

also shows, as soon as Accused no.2 saw Neeraj inside the flat, he gave

fist blow to Neeraj, thereafter scuffle took place between the two and

during that scuffle, accused No.2 took knife from the kitchen of flat

No.201 and stabbed deceased Neeraj. Circumstances, show that accused

Judgment -S.C.630-08 -164- Exh.341

No.2 was provoked by circumstance, (presence of Neeraj with his fiancee

in her flat during odd hour) which was grave and sudden and therefore,

he lost his control. It appears that the accused no.2 was impelled to lose

his control to find a young man with his fiancee's home during odd hour.

166. Admittedly prosecution has not come with a case that the

accused no.2 brought any weapon from Cochin, which he would have

got very easily, being defence personal. Looking to the weapon of crime

which is a kitchen knife (Art.23) and the circumstance brought on

record, particularly when thesis of Conspiracy is failed, I think though

prosecution succeeds in proving culpable homicide, but with lack of

premeditation to kill. Therefore I find substance in the argument of Ld.

Adv. for accused no.2 that the case of accused No.2 falls under section

exception 1 to Murder.

167. It is further submitted on behalf of the accused No.2 that the

case of the accused No.2 may fall in part of 304(II), which provides

lighter punishment than of 304(I). Though there was no premeditation,

but looking to the weapon of assault, which is sharp object; kicks he had

given to decease; and knowledge of the accused no.2 being defence

person; I do not find substance in the argument of Advocate for accused

no.2 that there was lack of intention to kill and I do not think that the

Judgment -S.C.630-08 -165- Exh.341

case of accused No.2 will fall in lesser category under 304(II) of IPC. But

the guilt of accused no 2. is covered u/s 304(I) of IPC and hold him

guilty for offence punishable u/s. 304 (I) and accused No.2 under section

201 of I.P.C. Likewise the prosecution also proved crime against accused

1 to the extent of destruction of evidence punishable u/s 201 of I.P.C. It is

my bounded duty to hear the accused on the point of sentence.

Therefore, I take pause here to hear the accused persons on the point of

sentence.

( As the court time is over, case is Adjourned to 172011 for hearing the accused on the point of sentence.)

(Dictation of judgment resumed on 172011,

168. Heard the Ld. APP Mr. R.V. Kini on the point of sentence. So

far as case of accused Nos.1 and 2 u/s. 201 of I.P.C. is concerned, it is

vehemently submitted by ld. APP that taking into consideration the way

the body of Neeraj was chopped by the accused persons and even the

parents of deceased Neeraj were deprived of body of Neeraj. He prayed

for maximum punishment of seven year u/s.201 of I.P.C. be awarded to

the accused no.1 and 2. It is necessary to reproduce section 201 of IPC.

Section 201 of IPC provides that:

“Causing disappearance of evidence of offence, orgiving false information to screen offender:

Judgment -S.C.630-08 -166- Exh.341

Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment,or with that intention gives any information respecting the offence which he knows or believes to be false,

If a capital offence – shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;If punishable with imprisonment for life – and ifthe offence is punishable with { imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine;if punishable with less than ten years' imprisonment ; and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to onefourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”

169. Ld. APP advanced before me regarding application of sec.

201 of I.P.C. According him, though the accused Nos. 1 and 2 are not

convicted for offence u/s. 302, even then they can be convicted under

first part of section 201 of IPC, which prescribed the maximum

punishment of 7 years. To buttress his submission, he seeks to rely on

Judgment -S.C.630-08 -167- Exh.341

judgment of Apex Court reported in 1974 SCC (Cri.) page 362, wherein

while acquitting the accused from the guilt of 302, the Apex Court still

maintained the conviction of imprisonment for 7 years under first part of

201 of IPC. Taking help of this Judgment, Ld. APP vehemently

submitted that the case before the court is on the same line. According

to him, though the accused are acquitted from section 302, but still they

can be convicted under first part of section 201 of I.P.C. for causing

disappearance of evidence of culpable homicide of Neeraj Grover, with

intention to screen themselves from legal punishment, therefore he

prays maximum punishment of seven years u/s. 201 first part for accused

no. 1 and 2. As against this, the ld. advocates for the accused Nos. 1

and 2 vehemently submitted that the citation, which is relied by the ld.

APP is not applicable to the present case and according to them, only

choice to the court is to take help of second part of section 201. I have

gone through the Judgment of Apex court relied by APP very carefully.

In the Judgment, though Apex Court has not held guilty of the appellant

for offence punishable u/s. 302 of I.P.C. but court still held that murder

was committed. Let me mention here the relevant portion of the said

judgment, wherein the Apex court has observed its opinion of happening

of murder. In para 18 of the Judgment Apex court has observed that:

Judgment -S.C.630-08 -168- Exh.341

“Therefore, although we may hold as we do that this

must be a case of murder, it is not possible for us to

find out conclusively that it was a case of throttling

and of nothing else or that the person who could have

throttled or done some other act, which actually

killed the deceased was the appellant and not his

father or step mother.”

Their lordships further held that:

“ that appellant had taken leading part in disposing of the

body of the murdered woman”

170. With respectful submission to the aforesaid observation of

Apex court, let me state that in the aforesaid case, the Apex court has

held that murder of woman was committed and therefore, the

appellants were convicted under first part of section 201 of I.P.C. But in

the present case, when I have already given finding that the murder is

not proved, I do not think that citation, which is relied is applicable to

the present case. The offence u/s 304(I) punishable with imprisonment

for life or the imprisonment which may extend to 10 years. As such for

proved main offence against accused no.2, the maximum punishment is

imprisonment for life, hence the the case in hand, falls in second

Judgment -S.C.630-08 -169- Exh.341

category of section 201 of I.P.C. for both accused.

171. Let us turn to quantum of sentence under this section. Ld.

APP submitted that the manner in which the accused caused the

disappearance of mutilated body of deceased Neeraj, the accused be

convicted with the fullest conviction provided under that section. As

against this, the ld. advocates for the accused Nos. 1 and 2 submitted as

they are young, hence lesser punishment than 3 years be awarded,

therefore, they did not press vehemently and left to the discretion of the

court.

172. So, maximum punishment in second part is provided for 3

years with fine. Having heard the ld. APP and advocates for defence, and

looking to the manner in which the accused caused disappearance of

mutilated body of Neeraj, in my view, the accused are liable to be

convicted to the fullest imprisonment as provided under second part of

201 of I.P.C. i.e. imprisonment for 3 years. As for fine for this offence is

concerned I will deal it, little latter.

173. Let us turn to the submission of ld. APP on the point of

quantum of sentence to accused No.2 u/s. 304 (I) of I.P.C. Section 304

(1) provides maximum punishment for imprisonment of life with fine. It

is submitted on behalf of the ld. APP that the manner in which the body

Judgment -S.C.630-08 -170- Exh.341

of the deceased was chopped, rather the manner in which the mutilated

body of deceased Neeraj was disposed of, the accused No.2 shall be

awarded with conviction of imprisonment for life. Sum and substance of

the arguments of the Ld. APP that while awarding sentence, the conduct

of accused is to be taken into consideration. He took me to confessional

statement of accused No.1 and showed some relevant portion, on which

he seeks to rely. According to him, when the accused No.1 requested

accused No.2 to provide medical treatment to deceased, accused No.2

avoided. Relying on this part of confessional statement, ld. APP prayed

for fullest punishment provided u/s. 304 (I) of I.P.C.

174. As against this, ld. advocate for accused No.2 Mr. Wahab

Khan has submitted that the accused was serving with Defence Force

and was serving to the nation. He respectfully submitted that accused

cooperated in entire investigation of this case. It is further submitted by

ld. advocate for the accused No.2 that accused No.2 is repenting on his

act. It is further submitted that that the reformative punishment should

be awarded to the accused no.2. Sum and substance of his arguments

are that lighter punishment to the extent of period, which he has already

undergone, should be awarded to the accused no.2. In support of his

argument, for taking lenient view, ld. advocate for the accused No.2,

Judgment -S.C.630-08 -171- Exh.341

relies on various judgments of Apex court. According to him, the accused

No.2 again wants to serve the nation. He also took help of confessional

statement and again he submitted that there was no premeditation on

the part of accused No.2. Let me submit that the accused No.2 has

already been given benefit of the situation that he was not having pre

mediation. Having heard the ld. APP and advocates for the accused

No.2, the manner in which the crime was done and the manner in which

the body was chopped and considering the conduct of the accused No.2,

in my opinion, rigorous imprisonment for 10 years would suffice the

purpose and would meet the ends of justice.

175. At the same time, the parents of the deceased Neeraj should

not be ignored, who suffered mental trauma by loosing their sole son. I

am conscious that nothing will replace Mr. Neeraj to their parents, but at

least in their old age, I think, they should be compensated out of fine

amount and therefore, substantial fine should be awarded to accused

Nos. 1 and 2.

176. So far as flat No.201, in Dhiraj Solitare building Malad (W)

is concerned, the owner of the flat has moved Misc. Application Exh.

333 for handing over her flat, which according to her was given to

accused No.1 and which is sealed by Crime Branch, Bandra Unit. As it

Judgment -S.C.630-08 -172- Exh.341

was given on leave and license basis and accused No. 1 was in possession

at the time of sealing of the flat, therefore, say of accused No.1 is

sought. The accused No.1 has not shown her concern over the flat and

therefore, she has given no objection. As such, no other person is

claiming the possession of flat No.201 and is pointed out to me that the

key of the flat no.201 is with the court as an (article No.9). Therefore,

the possession of the flat, rather key of the flat (Art.9) be given to Smt.

Shivani Jagdishchandra Atri. However She shall execute a bond in a

sum of Rs.2,00,000/ that she will preserve the flat till the appeal period

is over and in case ,if the appeal is filed then, till the disposal of appeal.

Accordingly application Exh.333 is disposed off.

177. In view of the aforesaid discussion, I proceed to pass

following order:

ORDER

1. Accused No.1 Maria Monica Susairaj and accused

No.2 Emile Jerome Joseph are acquitted of the

offence punishable u/s. 302 r/w 120B or 34 of I.P.C.

2. Accused No.2 Emile Jerome Joseph is convicted for

offence punishable u/s. 304 (1) of I.P.C. and to suffer

Rigorous Imprisonment for 10 years and also to pay

fine of Rs.50,000/. In default of payment of fine,

Judgment -S.C.630-08 -173- Exh.341

accused No.2 shall undergo Simple Imprisonment for one

year.

3. Accused No.2 Emile Jerome Joseph is also

convicted for offence punishable u/s. 201 of I.P.C. and to

suffer Rigorous Imprisonment for 3 years and to pay

fine of Rs.50,000/ In default of payment of fine,

accused No.2 shall undergo simple imprisonment for six

months.

4. Both sentences to run concurrently.

5. Accused No.1 Maria Monica Susairaj is convicted for

offence punishable u/s.201 of I.P.C. and to suffer

Rigorous Imprisonment for 3 years and to pay fine of

Rs.50,000/. In default of payment of fine accused No.1

shall undergo simple imprisonment for six months.

6. If the amount of fine of Rs.1,50,000/ is recovered,

it should be given to father of deceased Neeraj as

compensation. This will be in addition to any

compensation, which parents may claim against

the accused by filing Civil Suit.

7. Both accused shall be given benefit of set off

u/s.428 of Cr.P.C. for the period for which they have

already undergone sentence.

ORDER REGARDING DISPOSAL OF THE

PROPERTY.

1. Art.1 garland of Beads (broken Condition) likewise

Judgment -S.C.630-08 -174- Exh.341

chain, Art.2 Chain of decease having pendant of Gajmukh in burnt

condition, if desired by the father of the deceased, may be

returned to him. Otherwise, be destroyed after appeal period is

over.

2. Art.10 pieces of rib cage, Art. 11 femur bone, Art.12 skull

and Art. 46 tooth may be given to the Complainant, Amarnath

Grover for last rites of his son, if he desires, otherwise, they be

destroyed after the appeal period is over.

3. Art. 45 Nokia Mobile N95 be returned to the complainant

Amarnath Grover father of deceased.

4. Art. 7 Nokia N80 mobile, and Art. 8 Nokia Made mobile

phone Model No.1200, and Debit card (Art.42) be returned to

accused No.1 after appeal period is over.

5. Art. 28 colly. rubber mats, sun protection sheets and seat

covers of Santro car and article 28A other seat covers of Santro

car be returned to (P.W.11 ) Kiran Shiryan, if he desires, otherwise

they may be destroyed after appeal period is over.

6. Art. 49 and 50 station diaries be returned to respective police

stations, after appeal period is over.

7. Art.3 Rs.6,500/ in leather wallet of black colour Art.5

(colly) mobile phones of Grey colour and sky blue colour

respectively, Art.6Reliance co. Silver black colour Mobile of LG

RD5340, be returned to Accused No.2 after the appeal period is

over.

8 Art.9 Two keys of flat be returned to owner of flat no. 201,

Smt. Shivani Jagdishchandra Atri, on executing personal bond of

Judgment -S.C.630-08 -175- Exh.341

Rs.2,00,000/ that she shall preserve the flat, till the period of

appeal and in case, if appeal is filed then, till disposal of appeal

filed, if any.

9. Art.4 Identity card of Accused No.2 (IAFZ2015),

Art.7A label of Art.7,

Art.9A label of Art.9,

Art.13Burnt piece of bag,

Art.14Burnt piece of red cloth, partly burnt,

Art.15partly burnt gouge of cloth having red lines,

Art.16 Damage glass perfume bottle,

Art.17Tin bottle(damaged),

Art.18Tin bottle in damage condition and pieces of bottle,

Art.19 (colly)Metal buttons and partly burnt coins,

Art.20Packet containing soil,

Art.21Packet containing soil,

Art.22(colly)7 photos,

Art.23Knife (chopper) with sawteeth,

Art.24 – plastic wrapper of Art.23,

Art.25knife,

Art. 26 wrapper @ label of Art.25,

Art.27 colly. – three wrappers.

Art. 29 colly. Five small packets containing samples and

scrapping,

Art.29AOne sample packet of scraping wall paint, Art.30

One packet & label,

Art.31One pillow cover,

Judgment -S.C.630-08 -176- Exh.341

Art.32 – label of art.31

Art.33Jeans pant (one),

Art. 34 Wrapper @ label,

Art.35 (colly) one pair of shoes,

Art.36 wrapper along with label

Art.37One Tshirt,

Art.38 wrapper along with label,

Art.39Order book (Red colour note book) be returned to

(P.W.16) Kamlesh Premchand Jain.

Art.40Copy of swap receipt of HDFC card,

Art.41Copy of receipt(print out of billing system

dtd. 26.05.08),

Art. 43 colly. knife along with cardboard,

Art.44CD,

Art. 46A wrapper as well as envelopes including chit,

Art.47(colly)duster, partly burnt plastic pieces,

Chain lock,

Art.48plastic Can,

Art.8A label of Art.8, Art. 20A label of Art.20, Art.21A

label of Art.21,

All these articles and Articles, if any be destroyed after

appeal period is over.

As the accused No.1 is convicted for imprisonment for

three years and according to record, she has already

completed her three years imprisonment, therefore, the

accused no.1 is directed to execute P.R. bond of Rs.10,000/

Judgment -S.C.630-08 -177- Exh.341

with one solvent surety in the like amount, to appear before

Hon'ble High Court, in case High court issues notice in

appeal, filed by the State.

It is submitted that furnishing the surety will take

some time, therefore, on application made by

accused No.1, she is allowed to execute P.R. bond of

Rs.10,000/ and cash surety of Rs.10,000/ in lieu of

furnishing surety. Four weeks time is granted to accused

No.1 to furnish surety.

(M.W. Chandwani)

Special Judge & Addl. SessionsDated: 172011. Judge, Gr. Bombay.

Date of Dictation : 27,28,29,30 June 1st July, 2011.

Date of Transcription : 772011Date of signature : Date of delivery to C.C.S. :

Documents

Maria Monica Susairaj Sessions Court Judgement Mumbai