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2013 DIGILAW 2438 (DEL)

SHANKAR BHATIA v. STATE NCT OF DELHI

2013-12-20

INDERMEET KAUR, KAILASH GAMBHIR

body2013
ORDER KAILASH GAMBHIR, J. 1. By this order we propose to dispose of two separate bail applications filed by the appellants seeking suspension of their sentence pending disposal of the appeals preferred by them. 2. Shorn of unnecessary details, the case of the prosecution in brief is as under:- “A complaint dated 15.04.2004 was lodged by Mr. B.M Lal with the police informing about the murder of his captain son Captain Rajan Aggarwal on the board ship MV Crimson Galaxy, the gist of which is that his son was a qualified Merchant Navy Captain with ovber 30 years of experience and on 05.04.2004, Captain M.P Bhasin, Incharge of Delhi Police of M/s Univan Ship management informed that his son Captain Rajan Aggarwal was missing from the ship since 4 p.m. from 04.04.2004 and initial inquiries revealed that a scuffle had taken place in the cabin as there was blood stain in the room that he requested the local office and the Hong Kong headquarter of company to carry out a thorough search of the vessel and the sea to locate his son and he learnt and that there was found on the ship deck clearly indicating cold blooded murder of his son on high seas. Mr. B.M Lal Palmase (Spain) which is the “Port of Call” for investigation.” 3. Extensive arguments were addressed by both the counsels who appeared for the appellants and Special Public Prosecutor who represented the State. On behalf of the appellant, Vivek Madhok arguments were addressed by Dr. Sarabjeet Sharma while on behalf of the appellant–Shankar Bhatia, arguments were addressed by Mr. Dinesh Mathur, Senior Advocate. State was represented through Mr. Pramod Kumar Dubey assisted by Mr. Ashwin Vaish, Advocate for the complainant. 4. Brief synopsis were also filed by both the parties. Dr. Sarabjit Sharma, counsel for the appellant, Vivek Madhok at the outset pointed out that, in all, there were three suspects who were deported from Spain but Delhi Police without conducting any sort of investigation to examine the role of Mr. Nekzad Cama gave him clean chit and later introduced him as a prosecution witness. Learned counsel for the appellant also submitted that the behavior of Nekzad Cama was not normal on the day of the incident as deposed by PW-51 – Inspector Ignacio Villar Perez, Chief in the Crime Branch at the Judiciary Police Brigade, Las Palmas. Nekzad Cama gave him clean chit and later introduced him as a prosecution witness. Learned counsel for the appellant also submitted that the behavior of Nekzad Cama was not normal on the day of the incident as deposed by PW-51 – Inspector Ignacio Villar Perez, Chief in the Crime Branch at the Judiciary Police Brigade, Las Palmas. Learned counsel for the appellant also pointed out that DW-1 in answer to a question that as to whether anybody informed him if Mr. Nekzad Cama could be suspect, the witness said that the behavior of Nekzad cama was not normal on that day and he instantly requested a changed take over and in 10 minutes he was in the room of the Captain. Learned counsel for the appellant further argued that the case of the prosecution is based on circumstantial evidence but the prosecution miserably failed to prove the guilt on the part of the appellant – Vivek Madhok by producing any cogent and clinching evidence. Learned counsel for the appellant also argued that in a case based on circumstantial evidence motive undoubtedly plays an important role but the prosecution has not produced any evidence to show any kind of motive on the part of the appellants to commit the most heinous crime of murdering Captain Rajan Aggarwal and then to throw his body from the Deck in the high seas. Learned counsel for the appellant also submitted that both the appellants were cadets and there was neither any motive and nor any motive proved on record by the prosecution which could prompt or propel them to carry out the murder of their captain under whom they were getting training. Dealing with the point wise conclusion drawn by the learned Trial Court, counsel submitted that the reasoning given by the learned Trial Court for arriving at 14 conclusions is not only based on no evidence but on the self perceived story of the prosecution without support of any corroborative evidence. Learned counsel for the appellant has rebutted these conclusions in his written submissions and the same are reproduced herein as under:- “1st Conclusion That as per the evidence of PW-4 Binay Kumar Singh, Captain Rajan Aggarwal had been rough with Accused Vivek Madhok on the day of incident and had told accused Shanker Bhatia to come to his cabin along with accused Vivek Madhok around 1600 hrs. The conclusion drawn by the trial judge is completely wrong, except that 9.30 AM, when captain Rajan Aggarwal met Shanker Bhatia, on the Bridge, he told Shanker Bhatia to come to his Cabin for class, at 4 PM, with Vivek Madhok. Manoj TE, in his deposition made in the court, during trial, stated that Captain Rajan Aggarwal was with him and was in a jolly mood, during lunch time on 04.04.2004. It is the statement of Vivek Madhok that Captain Rajan Aggarwal met him at 12 Noon, in the Ship’s office alleyway and told him that he should square up his cabin and also told him that the Captain would inspect the same, later in the evening. He was never harsh to him. There is no evidence on record, from where the trial judge could draw an inference that Captain Rajan Aggarwal was harsh to Vivek Madhok. This is the presumption of the Trial Judge. 2nd Conclusion That both the Accused persons were scheduled to meet Captain Rajan Aggarwal sometimes between 2.30 pm to 4.00 pm and they have adduced no alibi as to their whereabouts during the relevant time. The conclusion drawn by the trial judge is completely wrong. The conclusions are based on no evidence. There is no evidence on record that the appellants were to meet Captain Rajan Aggarwal between 2.30 pm to 4.00 PM. This conclusion contradicts the first conclusion derived by the trial judge. It is in deposition of PW-4 that the appellants were to meet the captain at 4.00 PM. The time of 2.30 PM is a presumption of the trial judge and there is no evidence to this effect. The finding of the trial judge in respect of the alibi is completely wrong because the appellants in their statements made to Spanish police, which is at Page 210 and 211 of Volume II, specifically stated that they had gone to sleep from 1.00 PM to 3.45 PM. 3rd Conclusion That the condition of the room, blood on the floor, sofa and other item would show that there had been a struggle or scuffle probably between Captain Rajan Aggarwal and the assailants. This circumstance has been presumed by the trial judge, although there was no witness to the incident and the inference was drawn only from the fact of broken glass pieces, blood and condition of Captain’s cabin. This circumstance has been presumed by the trial judge, although there was no witness to the incident and the inference was drawn only from the fact of broken glass pieces, blood and condition of Captain’s cabin. It is really strange that none noticed any activity in Captain’s cabin, when majority of crew members were not sleeping. Nekzad Cama was on duty on the roof top of the Captain’s cabin and was not sleeping. He made a phone call to the captain at 12.15 PM. Captain called Nekzad Cama at 1.30 PM. At 1.50 PM, Cama called the Captain again. Around 2.40 PM he called Chief Engineer. It is thus sure that the Chief Engineer Manoj TE, PW 10 was also not sleeping at 2.40 PM. Prem Nath Pavitran, PW 23 went from his cabin to Second Officer’s cabin at 3.00 PM. He also saw second Engineer and Chief Engineer together at Chief Engineer’s cabin. That means Chief Engineer and Second Engineer, i.e. Manoj TE and S. Sarvanan, PW 11 were also awake at 3.00 PM. At 3.15 PM he went to galley to assist the Chief Cook. This proves that the Chief Cook, E. Rodrigues, was also awake/not sleeping at 3.15 PM. PW 15, Ramandeep Singh was watching movie in the smoke room from 1.30 PM to 3.10 PM and thereafter went to take tea in the galley. Ramandeep Singh went to sleep at 3.25 PM and till then, he was awake. Smoke room is on the boat deck. Ramandeep Singh could have seen any activity, if it was there, at the boat deck as he was there from 1.30 PM to 3.10 PM. All the persons mentioned above were not sleeping at 2.30 PM, at which time the prosecution alleges the commission of offence and none of them witnessed or noticed any occurrence. 4th Conclusion That when the matter was reported at about 16.05 Hrs, firstly by accused Shankar Bhatia, accused Vivek Madhok appeared to have fallen on the sofa set in the cabin could not have sustained the injuries as reflected in the MLC Ex. PW5/4 due to broken glass pieces and no such case was put by the accused Vivek Madhok at any point of time nor Accused Shankar Bhatia explained the injuries on his hand, however, trivial it was and rather concealed it initially which was later detected when he was medically examined. PW5/4 due to broken glass pieces and no such case was put by the accused Vivek Madhok at any point of time nor Accused Shankar Bhatia explained the injuries on his hand, however, trivial it was and rather concealed it initially which was later detected when he was medically examined. The conclusion drawn by the trial judge is completely wrong. The conclusions are based on no evidence. As per MLC, there were two small injuries on the right palm of Vivek Madhok and a small injury on the chin and another small injury was there on the forearm. Cut below the lip is 2.5 cm. Another 2 cm cut near the right thumb and another of the size of 0.8 cm on the middle of right palm. Another 1.2 cm injury on the lower aspect of forearm. The injuries sustained by Vivek Madhok were the natural consequence of his falling on broken glass pieces on the sofa at 4.00 PM, as fresh blood was oozing out, at 4.00 PM from the wounds of Vivek Madhok, at chin and two injuries at right hand palm, as stated by PW4 Binay Kumar Singh at Page 197 and 199 Volume II. PW 10 Manoj TE, affirmed that the blood was oozing out from the injuries of Vivek Madhok. It is in the deposition of PW 42, Praveen Shivaji Aheer that the blood was oozing out from the injuries of Vivek Madhok, even when he was brought on the deck, outside the cabin of the captain. There were broken glass pieces on the sofa, observed by the trial judge. There were hairs found on the sofa which were neither seized nor referred to FSL. Spanish police on inspection observed broken glass pieces on sofa and hair. Those glass pieces were removed by the Spanish police from the sofa, kept in an envelope. Deposition of PW4 Binay Kumar affirms the presence of blood on broken glass pieces. It is not the case of the prosecution that the appellants caused any injury with broken glasses therefore the possibility of any blood of the appellants on the broken pieces with their thumb impression is not possible. The allegation is hitting by a bottle. No souvenir bottle was ever seized or produced. It was never proved. It is not the case of the prosecution that the appellants caused any injury with broken glasses therefore the possibility of any blood of the appellants on the broken pieces with their thumb impression is not possible. The allegation is hitting by a bottle. No souvenir bottle was ever seized or produced. It was never proved. Vivek Madhok clearly put forth his case of receiving of said injuries from broken glass pieces on sofa, in his statement recorded u/s 313 Cr.P.C. This was also corroborated with his statement made to Spanish police. 5th Conclusion That PW-4 Binay Kumar, PW-10 Manoj T.E. and PW-15 Ramandeep fully suspected the involvement of both the accused persons behind the fact of missing Captain Rajan Aggarwal and the crew was instructed to maintain cool and complete silence about the incident. The conclusion drawn by the trial judge is completely wrong. The conclusions are based on no evidence. The statements of PW4, PW10 and PW15, given to Spanish Police at Pages 207, 204, and 209 nowhere speaks of any fact that the said persons suspected the involvement of the appellants behind the fact of missing Captain Rajan Aggarwal. PW15 did not allege any suspicion in his statement made to Spanish police. IO, possibly did not record the statement u/s 161 Cr.P.C. truthfully, therefore this witness became hostile before the trial court and remained strict to his statement made to Spanish police. It clearly proves dishonest investigation done by the Delhi Police to implicate appellants. Even in the deposition made in the court the said witnesses did not allege that they ever suspected the involvement of the appellants behind the fact of missing captain. 6th Conclusion That accused Vivek Madhok was not wearing uniform/dress that he was wearing on the day of incident in the morning and accused Vivek Madhok not only gave an evasive reply about whereabouts of his clothes but also failed to produced the same to the Spanish police or for that matter to PW4 Binay Kumar or PW 10 Manoj T.E or to Delhi police. The conclusion drawn by the trial judge is completely wrong. The conclusions are based on no evidence. Vivek Madhok categorically stated to the Spanish police, when he was asked about the clothes, which he was wearing. The conclusion drawn by the trial judge is completely wrong. The conclusions are based on no evidence. Vivek Madhok categorically stated to the Spanish police, when he was asked about the clothes, which he was wearing. He stated at Page 735 Volume IV that he was wearing a white shirt and beige colour long sport trouser and that those clothes were in the vessel. He also affirmed that he was wearing the uniform i.e. white shirt and black pant, when he went to captain’s cabin. The said uniform was seized by Delhi police. A blue half pant (shorts) was also received by Delhi police from Spanish police, whereas the prosecution is all through claiming that Vivek Madhok threw his T-Shirt and blue shorts in the ocean. The recovery of blue shorts was given no importance in the investigation. It was specifically stated by Vivek Madhok in his statement recorded u/s 313 Cr.P.C. that the alleged clothes, yellow T-Shirt and blue shorts were either in the cabin, suitcase or almirah or laundry but no one asked him to produce the same and nobody searched the same in his presence. The conclusion drawn by the trial judge that Vivek Madhok gave evasive reply was thus wrong. 7th Conclusion That the forensic report prepared by Spanish police in the nature of DNA Profile brought out the presence of blood of accused Vivek Madhok on the hand iron rod cut from the railing of the boat, from the floor of the cabin in front of the desk, from the floor cabin inside in the bedroom near shoes, from a piece of crystal from a painting in the cabin, from the revolving metal stool which established the presence of the accused Vivek Madhok at the scene of crime. The report of blood analysis received from Spain remained unproved because the person, who prepared the report, was not examined and cross-examined. Spanish police nowhere stated that there was blood of Vivek Madhok on iron rod cut from boat deck. The trial judge did not consider that the rods cut from the boat deck were brought to India and were not subjected to DNA test on the ground that the said rods did not contain the blood. The observation of trial judge is completely wrong, as neither the Spain police nor the FSL India speaks of presence of any blood on the railings of the boat deck. The observation of trial judge is completely wrong, as neither the Spain police nor the FSL India speaks of presence of any blood on the railings of the boat deck. Piece of crystal was not received in India. It was not subjected to any tests. The blood which was found on the revolving metal stool was of Captain Rajan Aggarwal i.e. Group A and not of Vivek Madhok, as per report of FSL. The trial judge came to a wrong conclusion about the presence of blood of Vivek Madhok on the Metallic revolving stool. The Appellant is/was entitled to benefit of doubt and was entitled to be acquitted. There was no opportunity of cross-examination of the person who prepared the blood analysis report in Spain. The said report is thus inadmissible in evidence. 8th Conclusion That the finger print report Ex. PW45/A59 to A-80 reveal that seven clear tracks were found on broken glass pieces and as many as 12 particulars of common characteristic were found tallying with thumb impression of the right hand of Vivek Madhok suggesting that it was he who had hit captain Rajan Aggarwal with some glass item or the other thereby immobilizing the captain. The glass pieces were not in sealed condition. The recovery memo clearly shows that the envelopes containing the glass pieces were open and were not sealed. No conviction can lie on the basis of any evidence, which is dependent on the recovery of any article, which was received by the police in unsealed condition. The Spanish police found a thumb impression of Vivek Madhok on 1 broken glass piece and an impression of ring finger on another glass piece but the finger prints on other 5 broken glass piece were not identified. The 12 common characteristic of finger prints were found only on 2 glass pieces, which was fully explained by the Vivek Madhok in his statement u/s 313 Cr.P.C. The case of the prosecution is that captain Rajan Aggarwal was hit with a souvenir bottle but the said bottle was neither recovered nor produced anywhere in trial. 9th Conclusion That the DNA report Ex. PW29/B also brings out that there was blood on the white pillow cover Ex. P-6 belonging to missing captain Rajan Aggarwal and there was blood on the plastic cover of the metal detector Ex. P7 that belonged to the Captain Rajan Aggarwal. 9th Conclusion That the DNA report Ex. PW29/B also brings out that there was blood on the white pillow cover Ex. P-6 belonging to missing captain Rajan Aggarwal and there was blood on the plastic cover of the metal detector Ex. P7 that belonged to the Captain Rajan Aggarwal. There are 16 bloods spots, on the pillow cover. The presence of blood of Captain Rajan Aggarwal was affirmed, through the blood samples of the blood of the mother and father of Captain Rajan Aggarwal, at 4 places. There was blood, at 12 places which did not tally with the blood of Parents of Captain Rajan Aggarwal, Vivek Madhok and Shanker Bhatia. This clearly draws an inference that there was a fourth person present there, where blood was present on the pillow cover which remained unexplained. The strong possibility of the presence of a fourth person, who committed the crime, cannot be ruled out. The metal detector was not in a sealed condition. It was not received by Delhi police from Spain police. It was received by Delhi police from shipping company. IO planted slippers and sandals of the appellants, by making them blood stained with the blood samples of ‘A’ blood group. It was held by the trial judge that the police planted the said evidence. The possibility of planting the metal detector in a plastic cover, containing blood of group A, by putting the blood of same group, as was done in case of slippers and sandals, could not be ruled out. PW 43 S.S. Nair deposed that he saw blood on metal detector and not on cover. No appreciation was made by the trial judge regarding the said fact. 10th Conclusion That the cumulative proved facts about the state of the cabin, blood on the pillow and other places and the blood trail from outside the cabin upto the boat deck and the fact that captain Rajan Aggarwal was not found on thorough search of the ship, proved beyond reasonable doubt that the victim had met a homicidal death. The conclusion arrived at by the trial judge is based on presumption that the victim had met a homicidal death. It is based on no evidence. 12 spots of blood on pillow cover contained the blood of a stranger. The conclusion arrived at by the trial judge is based on presumption that the victim had met a homicidal death. It is based on no evidence. 12 spots of blood on pillow cover contained the blood of a stranger. The blood picked up from outside the cabin of the captain was never subjected to analysis in Spain or in India, thus no inference could be drawn from the same. No conviction can lie on the presumption of homicidal death. The hairs found from the sofa were not picked by the Spanish police. It was not sent to India. Had the hair been examined, the presence of another person, who may have committed the offence, could be proved. 11th Conclusion That the presence of blood on accused Vivek Madhok on several items of which were not on the sofa but on the other side of the centre table on the floor much away from him falsified his defence that he fainted and his blood fell on the sofa and other items. The presence of blood on the other side of the centre table could be very well possible because the size of the centre table is 2 feet wide. When Vivek Madhok was lifted by Cama, in the condition of unconsciousness, the possibility of dropping of blood on the other side of a table of small width, from a wound, from where the blood is oozing out cannot be ruled out. 12th Conclusion That in any case the blood if any from the wound was in the nature of coming out like current or stream that would fall on almost all side of the cabin room. The size of the cabin is 5 x 5 meter approximately and as per the site plan exhibit PW48/N of the cabin of the captain, the sofa and the centre table are lying at a very small distance and possibility of presence of blood around the sofa or around the centre table may be possible. The size of the cabin is 5 x 5 meter approximately and as per the site plan exhibit PW48/N of the cabin of the captain, the sofa and the centre table are lying at a very small distance and possibility of presence of blood around the sofa or around the centre table may be possible. 13th Conclusion That the version of accused Vivek Madhok that he collapsed on seeing blood in the cabin there was no occasion to him to go to his cabin after the matter was reported to PW-4 Binay Kumar and when others arrived and the very fact that his cabin towel was missing and he was instead using towel of co-accused Shanker Bhatia would indicate that they both were together in the entire scheme of things. All this inference was drawn by the trial judge, without any cogent evidence on the record. It is not the case of the prosecution that the towels had any marking, specifically allocated to any of the crew members of the ship. Vivek Madhok categorically explained that the towel of white colour, which he was using became blood stained, because of the blood, oozing from his injuries and thus he threw the same in the trash and used the other towel of blue colour. He had explained that the white colour towel used by him earlier was thrown in trash. 14th Conclusion That it was accused Shanker Bhatia who was all along present with accused Vivek Madhok and in view of false explanation given by him in regard to whole episode of accused Vivek Madhok falling on the sofa on seeing so much blood, there is a strong inference that it was accused Shankar Bhatia who was particeps criminis and both disposed of the body of the missing Captain Rajan Aggarwal by throwing his body on open sea. The conclusion arrived at by the Ld. Trial Judge are wrong and the same are based on no evidence. There is no evidence of participation of the appellants, in commission of the crime. And the findings of the judge are based on presumptions.” 5. The conclusion arrived at by the Ld. Trial Judge are wrong and the same are based on no evidence. There is no evidence of participation of the appellants, in commission of the crime. And the findings of the judge are based on presumptions.” 5. Learned counsel for the appellant also argued that there is no evidence adduced by the prosecution to prove that Captain Rajan Aggarwal had died as dead body of Captain Rajan Aggarwal was not recovered and in the absence of recovery of his dead body no case for culpable homicide can be made out against the appellants. Learned counsel for the appellant also argued that in the statements recorded before the Spanish Police, PW-4, PW-10 and PW-15 had never raised any suspicion on these appellants. Learned counsel for the appellant also pointed out that out of the two rods which were sent to India none was carrying any blood. Learned counsel for the appellant also submitted that as per the Spanish Police two rods contained blood but the same were not sent to India. Learned counsel for the appellant further submitted that there was no evidence proved on record to show that the rods carried the blood of appellant, Vivek Madhok. Learned counsel for the appellant also submitted that appellant, Vivek Madhok had received certain injuries and blood was oozing out from his said injuries which might have dropped down on the rods when the appellant, Vivek Madhok had accompanied PW-42, Praveen Shivaji Aheer and other persons in search of the Captain from the Bridge to the boat deck of the ship and in that process. Therefore, dropping of the blood on the railing of the board deck from the wounds of the appellant, Vivek Madhok cannot be ruled out. 6. Learned counsel for the appellant also argued that except the prosecution building its own story there was no evidence on record to prove that these appellants were present in the cabin of the Captain Rajan Aggarwal between 2.30 pm to 4.00 pm GMT and there could be no reason for them to be present when as per the deposition of PW-4, both of them were called by the Captain at 4 pm. Learned counsel for the appellant also pointed out that the only misfortune of the appellant, Vivek Madhok was that he had fallen down on the sofa after seeing the blood in the cabin and in that fall he had received injuries because of the presence of glass particles on the sofa. 7. Learned counsel for the appellant had also drawn attention of this court to the MLC of appellant, Vivek Madhok proved on record as Ex.PW-5/1-4 to point out that the nature of injuries suffered by the appellant, Vivek Madhok as per the MLC justifiably could only be on account of his falling down on the sofa and not due to any other reason. Learned counsel for the appellant also submitted that as per the opinion given by the doctor in the MLC report, he stated that no definite opinion regarding the age of injuries can be given. Counsel also submitted that injury Nos.1 to 4 which were termed as one month old are the same injuries which were suffered by the appellant when he had fallen down on the sofa where the glass pieces were lying scattered. 8. Learned counsel for the appellant submitted that PW-48 in his deposition took a stand that he did not record the disclosure statement of the accused persons on 19th April 2004 as they were not disclosing true facts. Contention raised by the learned counsel for the appellant was that how the Investigating Officer could know that the said accused persons were not disclosing the correct facts. Learned counsel for the appellant submitted that the Spanish documents were proved on record through PW-46, who was merely a translator and had no personal knowledge of the said documents. Contention raised by counsel for the appellant was that the Spanish documents, proved on record, cannot be read into evidence, as the same had not been proved in accordance with law. 9. Learned counsel for the appellant also submitted that PW-4 in his deposition also stated that when he had reached the Captain’s cabin after having learnt the fact of the Captain missing from his cabin from Shanker Bhatia, he saw the present appellant, Vivek Madhok lying on the sofa and the second officer Nekzat Cama standing nearby and sprinkling water on appellant, Vivek Madhok. 10. 10. Based on the above submissions, learned counsel for the appellant, Vivek Madhok urged that the prosecution has completely failed to prove its case beyond reasonable doubt and as per the settled principles of criminal law the appellant is entitled to benefit of doubt in a case of this nature. 11. Addressing arguments on behalf of appellant – Shanker Bhatia, Mr. Dinesh Mathur, learned Senior Advocate strenuously argued that the order of conviction and order of sentence passed by the learned Trial Court is merely based on suspicion and a perceived story of imagining the presence of the appellant with the other co-accused in the cabin at the time of incident between 2.30 pm and 4 p.m. GMT while as per the admitted case of the prosecution and as deposed by PW-4, the appellant and the accused were asked by Captain Rajan Aggarwal to visit him at 4 pm and not prior thereto. Learned senior counsel further argued that the impugned judgment passed by the learned Trial Court is in clear violation of the settled principles of criminal jurisprudence which mandates the prosecution to prove each link in the chain of circumstantial evidence so complete and incapable of any other explanation of any other hypothesis than the guilt of the accused. Contention raised by the learned senior counsel for the appellant was that there is not even single clinching evidence proved by the prosecution to inculpate the accused in the commission of the said crime. Inviting attention of this court to paragraph 117 of the impugned judgment, learned senior counsel for the appellant pointed out that the learned Trial Court itself had observed that the investigation in the case was totally lackadaisical and devoid of any commonsense and logic and was an attempt made by the Investigating Officer to plant the evidence in the nature of foot prints from the sandals or chappals worn by the accused persons during the relevant time. Learned senior counsel for the appellant also argued that the learned Trial Court had failed to appreciate that corpus deliciti has not been proved by the prosecution and a mere fact that some blood of the Captain was found inside his cabin and the alleged trail of blood was found up to the deck, the inference could not be drawn about the murder of Captain Rajan Aggarwal at the hands of appellant. Learned senior counsel for the appellant further submitted that since the body of the victim was not recovered, there was no eye witness of the alleged murder or of the act of throwing of the body of the victim into the high seas, there was no autopsy or post mortem report of the deceased, therefore on what basis the learned Trial Court could conclude this case to be a case of homicidal death. Learned senior counsel for the appellant also argued that even prosecution had failed to attribute any motive on the part of the accused persons to carry out the alleged murder of Captain Rajan Aggarwal as both the accused persons were merely cadets and they were asked by the Captain to come to his cabin at 4 PM for study and therefore, there could not have been any occasion for these cadets to visit the cabin of Captain prior to 4 pm GMT. Learned senior counsel for the appellant also argued that so far as the appellant, Shanker Bhatia is concerned, there was no defense wound on his person as per the MLC proved on record. 12. Learned senior counsel for the appellant, Shanker Bhatia had also drawn attention of this court to the copy of the letter written by the Assistant Commissioner of Police, Anti Homicide Section, Crime Branch to the Professor and Head of the Forensic MAMC, New Delhi to seek opinion of the Forensic Expert on the exhibits as seized by the Spanish Police and the said communication would show as to how the police has cooked up the story in order to falsely implicate the present appellant, Shanker Bhatia in the said crime which they had never committed. Learned senior counsel for the appellant also submitted that the cabin of the captain was at ‘D’ Deck which was one floor below the level of the top floor ‘E’ Deck and therefore, it was not possible for the accused persons to throw the body of Captain Rajan Aggarwal from the boat deck, which was at the lowest level of the ship and nobody on the ship had witnessed the cadets bringing down the body of the Captain. Learned senior counsel for the appellant also submitted that the presence of the ship towel of appellant, Shanker Bhatia in the cabin of, Vivek Madhok is not an incriminating piece of evidence as exchange of ship towels amongst crew members is very common. Learned senior counsel for the appellant also invited our attention to paragraph 72 of the impugned judgment wherein the learned Trial Court itself had observed that the prosecution case solely rests on circumstantial evidence which in a nutshell is that although nobody saw the two cadets committing the murder of Captain Rajan Aggarwal, but they were supposed to be with the Captain during the relevant time to take lesson/study course and then, there was a sudden quarrel in the cabin and in a fit of rage the appellant, Vivek Madhok along with Shankar Bhatia formed the common intention to kill the captain. Contention raised by learned senior counsel for the appellant was that there was no material with the prosecution to build up such a story and the way the prosecution version has been narrated, it casts an impression as if the same is based on an eye witness account. Learned senior counsel for the appellant submitted that in criminal law a conviction cannot be based on mere ‘ifs and buts’, ‘probabilities’ or ‘possibilities’ but the prosecution must succeed to prove its case with the help of clinching evidence and beyond any shadow of doubt. The conviction of the appellant as per learned senior counsel for the appellant in the facts of the present case is based on a mere suspicion and it would be a travesty of justice, if on a mere suspicion, the accused person continues to languish in jail. In support of his arguments the appellant place reliance on the judgment of State of Karnataka vs. M.V Mahesh reported in 2003 (1) JCC 443 . 13. Based on the above submissions, learned senior counsel for the appellant, Shanker Bhatia seeks suspension of his sentence till the disposal of the present appeal. 14. The aforesaid contentions raised by the counsels representing the appellants, Vivek Madhok and appellant – Shanker Bhatia were strongly refuted by Mr. Pramod Kumar Dubey, Special Public Prosecutor assisted by Mr. Ashwin Vaish, Advocate for the complainant. 14. The aforesaid contentions raised by the counsels representing the appellants, Vivek Madhok and appellant – Shanker Bhatia were strongly refuted by Mr. Pramod Kumar Dubey, Special Public Prosecutor assisted by Mr. Ashwin Vaish, Advocate for the complainant. Learned Special Public Prosecutor for the State argued that the learned Trial Court has passed a well reasoned judgment dealing with each and every aspect of the case and in the last paragraph of the judgment it has summarized its conclusions on which the appellants were found involved in committing the murder on a ship at the high seas. Learned Prosecutor for the State further submitted that it is not in dispute that both the cadets were called by the Captain at 4 pm on 4.4.2004 for the purposes of study and it was Shanker Bhatia who came on to the bridge and reported to him that there was blood in the captain’s cabin and the appellant, Vivek Madhok on seeing the blood had fainted on the sofa and the captain was found missing from the cabin. Learned Prosecutor for the State further submitted that it has also come in the evidence of PW-4 that the captain was a little harsh on appellant, Vivek Madhok on the fateful day and therefore both the accused persons with the common intention had committed the murder of captain Rajan Aggarwal and then had thrown his body in the high seas. Learned Prosecutor also submitted that in a given case the motive can surface on the spur of the moment and therefore it is not necessary that the exact motive of a crime can be known to the others. Learned Prosecutor further submitted that the appellant, Vivek Madhok had faked his fall on the sofa so as to offer a justifiable explanation for the injuries suffered by him in fight with the Captain Rajan Aggarwal. Learned Prosecutor also submitted that the injuries which appellant, Vivek Madhok had suffered, as per the MLC report could not have been due to his fall on the sofa. Learned Prosecutor also submitted that the injuries which appellant, Vivek Madhok had suffered, as per the MLC report could not have been due to his fall on the sofa. Learned Prosecutor also invited our attention to the sketch of the cabin of the captain proved on record as Ex.PW-46/A that there were blood splattered in the entire cabin i.e. on the sofa, on the floor between the sofa and center table, on the pillow (Ex.PW-6) and also on the floor of the bed room which clearly goes to show that there had been a scuffle between the captain and the assailants. Learned Prosecutor further submitted that the blood stains were also found from the ‘D’ Deck to the Board Deck and the evidence of PW-17, 27 30, 40 and 42 corroborate the evidence of such blood trail. Counsel also submitted that the forensic report prepared by the Spanish Police and proved on record as PW-46/B-7 clearly goes to prove that the same generic profile (male) has been found in Exhibit analyzed like 4.1 (blood from an iron rod cut from 20 mm x 1500 mm from the cabin of the Capitan), 5 (blood taken out from the floor of the cabin captain, in front of the desk) 7 (blood taken out from an iron rod cut from 40 mm x 960.5 mm from the cabin of the captain ship), 8 (blood taken from the floor of the cabin close to shoes), 9 (blood taken from a piece of crystal from a painting in the cabin of the Capitan and 11 (blood taken from the revolving metal stool in the cabin of the captain), the said generic profile coincided with the generic profile of the suspect Vivek Madhok. Learned Prosecutor submitted that the plea of the defence that Vivek Madhok became unconscious after having seen blood in the cabin is an absolutely fake story or the injuries sustained by accused Vivek Madhok was due to his alleged fall on the sofa set where there were scattered glass pieces cannot be fathomed. Learned Prosecutor submitted that the plea of the defence that Vivek Madhok became unconscious after having seen blood in the cabin is an absolutely fake story or the injuries sustained by accused Vivek Madhok was due to his alleged fall on the sofa set where there were scattered glass pieces cannot be fathomed. Counsel further submitted that the blood of the appellant Vivek Madhok was also found on the wooden frame as well as on the doll face, which were on the other side of the central table away from the sofa set and more importantly how could his blood be found inside the bed room near the shoes much away from the adjoining office. Counsel further argued that in the cross-examination of PW4 Binay Kumar, PW-10, Manoj T.E. and PW-15, Ramandeep, the defence did not elicit any response on this count and for that matter even to the other prosecution witnesses PW17, PW27, PW30, PW40 and PW42 no suggestion was given that Vivek Madhok had sustained injuries on his chin, right palm and on his right hand due to his fall on broken glass piece on sofa set. Learned prosecutor further argued that the appellant Vivek Madhok in his interrogation by the Spanish Police failed to give any satisfactory explanation as to how he was wearing different clothes later in the afternoon than the one, he was wearing in the morning. 15. Learned Special Public Prosecutor for the State also argued that the entire incriminating evidence was put to both the appellants at the time of recording of their statements under Section 313 of Cr. P.C. and in answer to various questions both of them pleaded ignorance as in answer to most of the questions their stock reply was that ‘they do not know’ or ‘it was incorrect’. Contention of learned Special Public Prosecutor for the State was that after the said incident, PW-4 had recorded the statements of all the crew members and when the ship reached at Laspalmas Port, the statements were also recorded by the Spanish Police but to many of the circumstances, which happened in their presence the respective answers were in the negative instead of offering any explanation. Learned Prosecutor also argued that the appellants have not denied the evidence produced on record by the Spanish Police and the same was admitted by the police and therefore, in the absence of any cross-examination on the said evidence as collected by the Spanish Police, the same stands proved against them. Learned Prosecutor for the State also submitted that the body of the captain Rajan Aggarwal could not have been thrown in the Sea by one person alone as the body was to be brought down to the level of the boat Deck and therefore the complicity of appellant, Shanker Bhatia cannot be ruled out in the commission of the said crime. Learned Special Public Prosecutor for the State also submitted that it was the ship towel of appellant, Shanker Bhatia which was found in the cabin of appellant, Vivek Madhok and this again establishes the fact that appellant, Shanker Bhatia was as much involved in the murder of Captain Rajan Aggarwal as appellant, Vivek Madhok was. Learned Special Public Prosecutor for the State pointed out that mere fact that the body of the victim was not recovered would not mean that the offence had not taken place when there is enough circumstantial evidence to prove the commission of the crime. Learned Special Public Prosecutor for the State also submitted that the deposition of PW-4, and other material witnesses produced by the prosecution remained unchallenged on vital aspects and therefore, the uncontroverted and unrebutted evidence led by the prosecution clearly proves the involvement of the appellants in the commission of the said crime. In the support of his contention learned special prosecutor place reliance on following judgments: a) State of Hrayana vs. Hasmat reported in (2004) 6 SCC 175 b) Kishori Lla vs. Rupa & ors. reported in 2004 SCC (Cri) 2021. c) Vijay Kumar vs. Narendera & Ors. reported in (2002) 9 SCC 364 16. We have heard learned counsel for the parties at great length and given our anxious consideration to the arguments advanced by them. We have also perused the record of the learned Trial Court. 17. This is an unfortunate case wherein Captain Rajan Aggarwal who was a qualified Merchant Navy Captain with 30 years of experience went missing on 05.04.2004 while the Ship MV Crimson Galaxy was in mid Atlantic Ocean on the coast of Brazil and bound for E-I Dekhelia near Alexandria, Egypt. 17. This is an unfortunate case wherein Captain Rajan Aggarwal who was a qualified Merchant Navy Captain with 30 years of experience went missing on 05.04.2004 while the Ship MV Crimson Galaxy was in mid Atlantic Ocean on the coast of Brazil and bound for E-I Dekhelia near Alexandria, Egypt. In all, there were 20 crew members including the appellants who were cadets under the training of the said Captain. Based on the statements of the appellants recorded by PW4- Binay Kumar Singh, Chief Officer; statements recorded by the Spanish Police; the evidence collected by the Spanish Police and forensic experts after carrying out the detailed search of vessel on 14/15.04.2004 and the investigation carried out by the crime team of Delhi Police, both the appellants were found involved in committing the murder of Captain Rajan Aggarwal on 4.4.2004 between 2.30 and 4.00 pm GMT. Vide judgment dated 06.09.2013 both the appellants have been convicted under Sections 302/34 IPC as well as under Section 201/34 IPC and vide order on sentence dated 11.09.2013 both the appellants have been sentenced to undergo imprisonment for life together with fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a period of six months under Section 302 IPC. They have also been sentenced to undergo RI for a period of seven years along with fine of Rs.25,000/- and in default to undergo further imprisonment for a period of six months so far as under Section 201 IPC is concerned. Both the appellants have preferred their appeals to challenge the said orders of conviction and order on sentence and in these appeals, the appellants now seek suspension of their sentence pending disposal of their appeals. 18. It is a settled legal position that parameters for the grant of bail under Section 439 of the Cr.P.C. and suspension of sentence after the order of conviction passed against the accused persons are strikingly different and therefore, there cannot be any equation with the principles governing grant of bail pending trial and suspension of sentence after an order of conviction. The chances for grant of suspension of sentence under Section 389 of the Cr.P.C. get more bleak when a case involving conviction of an accused under Section 302 IPC is concerned as it is only in exceptional cases that the benefit of suspension of sentence can be granted. 19. The chances for grant of suspension of sentence under Section 389 of the Cr.P.C. get more bleak when a case involving conviction of an accused under Section 302 IPC is concerned as it is only in exceptional cases that the benefit of suspension of sentence can be granted. 19. In Vijay Kumar v. Narendra & Ors., (2002) 9 SCC 364; Sidharth Vashishth v. State, (2008) 5 SCC 230 and in the case Ramji Prasad v. Ratan Kumar Jaiswal, (2002) 9 SCC 366 , and in catena of the judgments, the consistent view of the Supreme Court has been that in cases involving a conviction under Section 302 IPC it is only in exceptional cases that the benefit of suspension of sentence can be granted. The court further held that in considering the prayer for bail in cases involving serious offence like murder punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the accusation made against the accused, manner in which the crime is alleged to have been committed, gravity of the offence and the desirability of relieving the accused on bail after they have been convicted for committing the serious offence of murder. It is also a settled legal position that mere fact that during the trial the accused was granted bail and there was no allegation of misuse of liberty will be of no vital significance as the effect of bail granted during the trial looses significance once the accused persons have been found guilty on completion of trial. 20. Taking into consideration the aforesaid settled legal principles and in the facts and circumstances of the present case, in our considered opinion this is not a fit case to exercise power under Section 389 of the Cr.P.C. Learned Trial Court, after evaluating and analyzing the entire evidence on record mainly comprising of the statements of the crew members as recorded by PW-4; the investigation carried out by Spanish Police; the investigation carried out by Crime Branch, Delhi Police; medical and forensic evidence on record, reached to the conclusion that out of the 20 crew members on board, it was the appellants alone who were involved in committing the murder of Captain Rajan Aggarwal. In the operative paragraph of the judgment, the learned Trial Court summarized its conclusions as derived from the evidence produced and proved on record driving home the guilt on the part of the appellants in the commission of the said crime. Although, both the counsels representing the appellants have laid serious challenge to the said findings arrived at by the learned Trial Court but at this stage we are not inclined to deeply examine the correctness or otherwise of the evidence on record as our observations at this stage on merits of the case, one way or other will prejudice either the appellants or the State. Suffice for us to state that keeping in view of the seriousness of the offence, manner in which the crime is said to have been committed and the evidence collected by the prosecution qua the accused persons and also taking into consideration the peculiarities of the facts of the case where the murderer was only amongst the 20 members on the board of the ship, we are of the view that no case has been made out by the learned counsel for the appellants for suspension of sentence and for grant of bail. The applications moved by the appellants deserve to be dismissed and are accordingly dismissed. 21. Before parting with the matter we need to clarify that any expressions made hereinabove will have no effect on the merits of the case as the same are tentative for the purposes of deciding the present bail applications. 22. The applications are accordingly dismissed. The judgment cited by the learned counsel for the appellant, Shankar Bhatia is of no help at this stage of considering his bail application.