Bombay High Court
Officer vs Rajesh Alias Akashsingh Son Of on 28 October, 2010
Bench: A. H. Joshi, A. R. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Confirmation Criminal Case No. 02 of 2009
With
Criminal Appeal No.58 of 2010
With
Criminal Appeal No.275 of 2010
[A} Confirmation Criminal Case No.02 of 2009 :
The Sate of Maharashtra,
through Police Station
Officer, Ranapratap Nagar,
Nagpur. .... Appellant.
ig Versus
1. Rajesh alias Akashsingh son of
Shivprasad Sakhare,
aged about 33 years,
occupation Press Shop,
resident of Ajni Railway Qr. No.
H/99/D, P. S. Ajni,
Nagpur.
2. Dinesh son of Ramraj Yadao,
aged 29 years,
occupation nil,
resident of Naik Nagar,
Plot No. 104,
in front of Hanuman Mandir,
P.S. Ajni, Nagpur. .... Respondent.
*****
Mr. S.S. Doifode, Additional Public Prosecutor for the
appellant.
Mr. R.R. Shrivastava Adv. [appointed] for the
respondents.
*****
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2
[B} Criminal Appeal No.58 of 2010 :
Dinesh son of Ramraj Yadao,
aged 29 years,
occupation nil,
resident of Plot No. 104,
in front of Hanuman Mandir,
Naik Nagar, P.S. Ajni, Nagpur.
At present, Accused in
Nagpur Jail. .... Respondent.
Org. Accused No.2
Versus
The State of Maharashtra,
through P.S.O.,
Ranapratap Nagar, Nagpur. .... Respondent.
*****
Mr. A.R. Prasad, Adv., for the appellant.
Mr. S.S. Doifode, Additional Public Prosecutor for the
respondent.
*****
[C] Criminal Appeal No.275 of 2010 :
Rajesh alias Akashsingh son of
Shivprasad Sakhare,
aged about 43 years,
resident of Railway Qr. No.
4/99/D, P. S. Ajni,
Nagpur. .... Appellant.
[In Jail]
Versus
The State of Maharashtra,
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3
through P.S.O.,
Ranapratap Nagar, Nagpur. .... Respondent.
*****
Mr. R.V. Shrivasatava, Advocate (appointed) for the
appellant.
Mr. S.S. Doifode, Additional Public Prosecutor for the
respondent.
*****
CORAM : A.H. JOSHI AND
A.R. JOSHI,JJ.
Reserved on : 08th October. 2010.
ig Pronounced on : 28th October, 2010.
ORAL JUDGMENT [Per A.H. Joshi, J.]:
1. This Confirmation case and, two separate appeals by
convicts-accused have come up for hearing.
2. Heard learned Additional Public Prosecutor Mr. S.S.
Doifode for the State and learned Adv. [appointed] Mr. R.R.
Shrivastava for accused nos. 1 and 2 in Confirmation
Criminal Case No. 2 of 2009, learned respective Advocates in
the Criminal Appeals preferred by the convicts-accused.
3. Appellants were charged for offences punishable
under Sections 364, 364-A 384, 377, 302 and 201 read with
Section 34 of Indian Penal Code for :-
[a] abducting Mukesh Dilip Gajbhiye on 25th
December, 1998 at about 11-00 a.m. with an
intention to murder him,
[b] extorting money from his parents,
[c] committing unnatural offence with him,
[d] murdering him, and
[e] destroying the evidence of said offence.
4. The accused were also additionally charged for
previously committing offence of murder and rape and having
been convicted for life imprisonment.
5. The
learned Additional Sessions Judge found the
accused guilty for the below mentioned offences and
convicted and sentenced them to:-
[a] death penalty and a fine of Rs.1,000-00
each, in default, Rigorous Imprisonment
for one month, [Section 302 read with
Section 34 of Indian Penal];
[b] Rigorous Imprisonment for seven years and
a fine of Rs.1,000-00 each, in default,
Rigorous Imprisonment for one month
[Section 364 read with Section 34 of
Indian Penal Code];
[c] Rigorous Imprisonment for three years and
a fine of Rs.1,000/- each, in default,
Rigorous Imprisonment for one month
[Section 201 read with Section 34 of
Indian Penal Code]; and,
[d] Rigorous Imprisonment for seven years and
a fine of Rs.1,000/-, in default, Rigorous
Imprisonment for one month for Accused No.
1 Rajesh [Section 377, Indian Penal
Code].
However, the learned Trial Judge acquitted both the
accused of the offence punishable under Section 364-A Indian
Penal Code.
6. The facts as brought by the prosecution are
narrated in a very narrow compass as follows:-
[1] On 25th December, 1998, Accused No.1 kidnapped
deceased Mukesh Dilip Gajbhiye.
[2] He took the deceased Mukesh on Luna to the
place of offence, situated at Ajgar Layout,
Dighori Naka, Nagpur.
[3] Accused dealt a blow of wooden rafter on the
head of deceased and killed him.
[4] Accused sodomized Mukesh.
[5] Dead body of Mukesh was buried into a pit of
5 x3 , which was already dug in order to
destroy the evidence.
7. The prosecution story, as has emerged in the final
report, is to the effect as narrated herein before.
8. In the trial, prosecution examined eight
witnesses. The story as sought to be proved by the
prosecution before the Sessions Court proceeds as follows:-
9. In the trial, to prove its case, prosecution
examined eight witnesses. The story as sought to be proved
by the prosecution before the Sessions Court proceeds as
follows:-
[1] PW 1 - Sau. Aruna : Mother of deceased.
ig Gajbhiye. :
:
:
[Witness of deceased
and accused last seen
together].
PW 1 Aruna Dilip Gajbhiye states that :-
- Accused Nos. 1 and 2 are friends.
- Accused No.1 took Mukesh at about 11-00
a.m.
- Mukesh did not return even during night.
- Next day morning, she contacted the uncle
of Mukesh, namely Rajendra Gajbhiye, who
resides in front of her house, and told
him about failure of Mukesh to return and
his having gone out on earlier day with
Accused No.1- Rajesh.
[2] PW 2 - Rajendra : Uncle of deceased,
Gajbhiye : before whom accused
: no.1 made extra
: judicial confession.
PW 2 Rajendra Gajbhiye states that :-
- He, accompanied by the neighbours, namely
Raju Gaikwad, Bhimrao Chandankhede and
Sahebrao Atulkar, left for the house of
Accused No.1 Rajesh.
- Constables of Railway Police Force,
namely Mishra and Pande joined them.
- Accused No.1 gave a confessional
statement to him [Rajendra Gajbhiye] and
Constable Mishra.
- First Information Report was lodged by
Rajendra Gajbhiye.
[3] PW 3 - Ashok Lade : Panch Witness. He
states that :-
- Police recorded Memorandum of
statement of Accused No.1 and
recovered the dead body, weapons,
clothes etc.
- After recording Memorandum of
Statement of accused no.2, on his
showing, police recovered clothes of
accused no.2.
[4] PW 4 - Sanjay : Owner of the stolen
Vaidya : Luna.
- This witness has identified the Luna,
which police had seized as one used by
Accused No.1 for taking the deceased
Mukesh.
- This witness states that his Luna was
stolen and it is the same vehicle
ig which was with the police.
[5] PW 5 - Ramashankar : Neighbour, before
Mishra : whom accused no.1
: made extra judicial
: confession.
- This witness is a Police Constable in
Railway.
- He was called by PW 2 Rajendra
Gabhiye.
- He deposed that he had questioned
Accused No.1 Rajesh about Mukesh.
- Initially, Accused No.1 Rajesh did
not reply, however, after taking him
into confidence, and when taken on his
motorcycle, Accused No.1 Rajesh
revealed him the truth and told where
the dead body of Mukesh was buried
etc.
[6] PW 6 - Kanhayasing : Owner of Plot No.4,
Chauhan : where the Accused
: No.1 put up a hut
: which is the
: spot of commission of
: offence.
- This witness has stated that the place
where the dead body of Mukesh was
buried and then exhumed was a plot
owned by him, where accused had
constructed a hut without his
permission and it was in possession of
ig the accused.
[7] PW 7 - Mofijamiya : Investigating Officer.
Deshmukh :
- He is Investigating Officer and he has
proved the manner in which he has
carried out the investigation.
- He deposed that the dead body, which
was buried, was exhumed on the basis
of Memorandum of Statement and actual
discovery of place by the accused -
Rajesh to the police, which was below
the cot kept in that hut, and
discovery of equipments, namely crow
bar, spade, wooden rafter and a big
pot used for removing the soil etc.
[8] PW 8 Dr. Pradeep : Medical witness to
Dikshit. : prove Post-mortem
Report.
- This witness has proved the cause of
death and injury to the anal canal in
the dead body of Mukesh, which Dr.
Agrawal had seen at the time of Post-
mortem.
- He has deposed on the basis of Post-
mortem Report signed by Dr. Agrawal by
identifying Dr. Agrawal s signature
thereon.
10. Case is based on :-
[1] Circumstantial evidence of
ig last seen .
[2] Confessional statement given by Accused
No.1 to PW 2 Rajendra Gajbhiye and PW 5
Ramashankar Mishra, in whose presence
recovery of dead body, weapons and
incriminating clothes was done at the
behest of accused no.1.
11. As noted by learned Sessions Judge in Para 8 of
the judgments, the documents admitted by accused are:-
1. Inquest Panchanama [Exh.25],
2. Request letter [Exh.26] for providing
various samples from the body of
deceased,
3. Police report along with which dead body
was sent for post-mortem [Exh.27],
4. Death Certificate [Exh.28],
5. Ghat Certificate [Exh.29],
6. Acknowledgment of Dead Body [Exh.30],
7. Sana Entry [Exh.31],
8. Invoice Challan [Exh.32],
9. Search Panchanama prepared at the time
of arrest [Exhs.57 and 58],
10. Requisition for medical examination of
accused Dinesh and Rajesh with medical
reports [Exhs.94 and 95],
11. Post-mortem Report [Exh.96], and
12. Forwarding Letter alongwith which
Muddemal was sent for chemical analysis
[Exh.113].
12.
According to learned Additional Public Prosecutor
Mr. S.S. Doifode:-
[a] The prosecution has proved the entire
chain of events commencing from the
fact that:-
[1] The deceased was taken by the
accused in presence of mother of
deceased PW 1 Aruna.
[2] Thereafter deceased was not seen
by anybody.
[3] Confessional statement made by
Accused No.1 Rajesh before PW 2
Rajendra Gajbhiye and PW 5
Ramashankar Mishra as regards the
manner in which he took the
deceased Mukesh on the Luna to the
hut at Dighori Naka, hit him to
kill, sodomized and buried his
corpse in a pit which was ready.
[4] Statement made by the accused
before police for discovery and
its memorandum which was proved by
PW 6 Kanhayasing Chauhan.
[5] Actual recovery of dead body where
it was buried at the behest and
upon identification, and
indication of the place by the
accused no.1 Rajesh.
[b] Prosecution has also proved involvement
of Accused No.2 Dinesh by cogent
evidence.
[c]
From the confessional
demand of ransom is proved.
statement, the
[d] The fact of assault by accused to kill
Mukesh and their unnatural act of doing
carnal intercourse with deceased Mukesh
are proved by medical evidence.
[e] The manner in which the offence is
committed, as can be seen from the
position of the dead body, namely the
mouth has been gagged and tied, lower
apparels are absent and there are
injuries on the anal canal with a tear
etc., go to show that the accused do
not have respect for basic human values
and human body.
[f] The offence committed by the accused is
heinous.
[g] The mindset of the accused reveals to
be of heinous criminality and they,
therefore, deserve for all offences
charged conviction as well as sentence.
[h] Though the additional charge of
previous conviction does not survive
due to acquittal in subject charge and
trial, in appeal before this Court, yet
solely on the basis of the offence,
subject-matter, i.e., kidnapping with
pre-determination of committing the
offence of demanding ransom, keeping
the pit for burial ready at the place
where Mukesh was buried, assaulting him
to death by a single fatal blow,
committing unnatural offence and
destroying the evidence by burying his
dead body, taken collectively, are
sufficient to attract capital
punishment, since circumstances taken
together constitute facts of the case
at hand to be bracketed as rarest of
the rare case for awarding capital
punishment.
Learned APP, therefore, urges in support of
confirming conviction and the sentence of capital
punishment.
13. To support his arguments, learned APP Mr. S.S.
Doifode placed reliance on following judgments:-
(A) General Submissions:
[1] Sahadevan alias Sagadevan Vs. State rep.
by Inspector of Police, Chennai [AIR
2003 SC 215).
Proposition :
In a case based on circumstantial evidence, when
accused has failed to explain the circumstances in which he
has parted with company of deceased, the circumstance of
last seen has to be believed as proved beyond doubt.
Failure to prove motive is not relevant.
[2] Damodar Vs. State of Karnataka [AIR 2000
SC 50].
Proposition :
When it was proved that the accused and victim
were last seen together , and the dead body was exhumed on
showing by the accused, and since accused had failed to
show any motive of the witnesses for deposing against him,
the prosecution case was duly proved as to the charge of
kidnapping, murder and burial of dead body for screening
the evidence.
[3] Rajendra Kumar Vs. State of Rajasthan
[2003 Cri. L.J. 4344 (SC)].
Proposition :
Recovery of dead body under Section 27 of the
Evidence Act on the Memorandum of Statement of the accused
and indication and discovery of the said place by the
police at the behest of the accused, accompanied by
recovery of ornaments of the deceased was sufficient
evidence for conviction.
Facts of the case that the place where the dead
body was buried was taken on rent by the accused two days
prior, constituted sufficient proof of involvement of the
accused.
[4] ig Vikas Vs. State of Rajasthan [AIR 2002
SC 2830].
Proposition :
Recovery of dead body at the instance of the
husband constituted sufficient circumstance to show his
involvement in the commission of offence.
[5] Vilas Pandurang Patil Vs. State of
Maharashtra [AIR 2004 SC 3562].
Proposition :
Extra-judicial confession, accompanied by blood-
stained articles and other articles, with evidence of
presence of blood of the deceased in nail clippings
constituted adequate evidence of involvement of the
accused.
[6] Sandeep Vs. State of Haryana [AIR 2001
SC 1103].
Proposition :
Discovery of blood-stained swords and clothes
where blood stains match with the blood group of the
deceased constituted adequate evidence to support the
conviction even in absence of Identification Parade.
[7] State of Rajasthan Vs. Teja Ram & others
[1999 Cri. L.J. 2588 (SC)].
Proposition :
When other evidence is sufficient enough to prove
the involvement of accused persons in commission of crime,
failure to match the blood group on the weapon of assault
on account of disintegration of serum would not destroy
the value of other evidence, and fact of blood stains
would constitute sufficient material to support the
conviction based on other evidence.
[8] Geetha Vs. State of Karnataka [2000 Cri.
L.J. 3187 (SC)].
Proposition :
The dead body was found under the cot in the
bedroom of accused. Circumstantial evidence proved that
deceased had gone to the house of the accused on the date
of incident. Recovery of ornaments on her body from the
accused constituted sufficient material to convict the
accused.
[9] Dinesh Bulakhi Harijan & another Vs.
State [2009 (1) Mh.L.J. (Cri.) 185].
Proposition :
When the dead body of the deceased was recovered
at the behest of the accused, and it was proved from
circumstantial evidence that the place from where dead body
was exhumed on showing by the accused which was a secluded
place and was a matter of exclusive knowledge of the
accused together, on the basis of last seen together , the
conviction was well supported.
(B) Other group of citations relied upon by learned
APP Mr. Doifode is as follows:-
[a] Ankush Maruti Shinde & ors. Vs. State of
Mah. [AIR 2009 SC 2609],
[b] Dayanidhi Biso Vs. State of Orissa [2003
Cri. L.J. 3697 (SC)],
[c] Om Prakash alias Raja Vs. State of
Uttaranchal [2003 Cri.L.J. 483 (SC)],
[d] Molai & another Vs. State of Madhya
Pradesh [AIR 2000 SC 177],
[e] Jai Kumar Vs. State of M.P. [AIR 1999 SC
1860],
[f] Govindasami Vs. State of Tamil Nadu [AIR
1998 SC 2889],
[g] Laxman Naik Vs. State of Orissa [1995
Cri. L.J. 2692 (SC)],
[h] Sevaka Perumal etc. Vs. State of Tamil
Nadu [1991 Cri. L.J. 1845 (SC) ],
[i] Asharfi Lal & Sons Vs. State of U.P.
[AIR 1987 SC 1721],
[j] Henry Westmuler Roberts etc. Vs. State
of Assam and Chabil Prasad Agarwala Vs.
Sunil Chandra Biswa & ors. And State of
Assam Vs. Sunil Chandra Biswas & others
[AIR 1985 SC 823],
[k] Machhi Singh & ors. Vs. State of Punjab
[AIR 1983 SC 957],
[l] Kuljeet Singh alias Ranga Vs. Union of
India and another [AIR 1981 SC 1572],
[m] State of Maharashtra Vs. Rajendra
Pralhadrao
(Cri.) 474], and
Wasnik [2009 (2) Mh.L.J.
[n] State of Maharashtra Vs. Shankar
Kisanrao Khade [2009 Cri. L.J. 73].
The common propositions emerging from these
precedents are as follows:-
[1] If the conviction can sustain on circumstantial
evidence and it unmistakably points at the
accused, such - circumstantial evidence can be
safely relied upon to base the conviction.
[2] When the accused was last seen in the company
of deceased with lesser span of time and
reasonable proximity, and the accused fails to
explain as to how he had parted with the
company of the deceased, the evidence of last
seen can be used as best piece of
circumstantial evidence to base the conviction.
[3] Lack of motive is irrelevant if involvement of
the accused in commission of offence is proved.
[4] While death is an extreme penalty, and it
cannot be inflicted, in grave cases of extreme
culpability, if the nature of case and
circumstances demonstrate brutality,
heinousness, lack of respect to the human
dignity, dignity of life and even lack of
dignity to the dead body - involvement of
children offence of rape, murder, which
otherwise deserves the description of offence
being igbrutal, ghastly and
description of rarest of rare cases, not being
attracts the
a man slaughter of ordinary crime, the capital
punishment is not just justified, but ought to
be awarded.
[5] Not awarding appropriate punishment does more
damage to the community than the loss of life
of the accused.
[6] The age of the accused to be less, i.e., his
being of tender age, is not relevant while
considering the matter of awarding capital
punishment, if such punishment is justified on
facts.
[7] The accused have young children and old parents
does not yield compassion to commute the
capital punishment into life imprisonment.
14. In reply, learned Adv. Mr. R.R. Shrivastava for
appellant in Criminal Appeal No. 275 of 2010 has advanced
following submissions:-
[a] The confessional statement relied upon by
the prosecution allegedly given by the
accused to PW 5 Ramashankar Mishra is
not admissible in the evidence, as he
himself is a Police Constable.
[b] The prosecution story that PW 5
Ramashankar Mishra took the accused No.1
Rajesh on the motorcycle, and later the
accused Rajesh disclosed commission of
offence is hard to believe.
[c] Moreover, the version of PW 2 Rajendra
Gajbhiye is that the accused gave
confessional statement when PW 2
Rajendra and PW 5 Ramashankar were
together. This variety in the statements
of witnesses creates a doubt as to who
amongst the witnesses is true, and it
would be unsafe to rely upon such doubtful
statements of the witnesses.
[d] The Memorandum as to discovery given by
the accused to the police, if at all
believed, cannot be believed beyond proof
of discovery of dead body, and cannot be
admissible for any confessional statement
contained in the said memorandum.
[e] The Luna, subject-matter, claimed to be
owned by PW 4 Sanjay Vaidya, and proved
to be stolen by the accused is not proved
to be so stolen by the accused or even
used by him for taking the deceased Mukesh
at the place of offence.
[f] The ownership of the hut from where the
dead body was exhumed is not proved to be
of PW 6 Kanhayasing Chauhan, nor it is
proved that the accused Rajesh was
possessing it.
[g] No effort was made by the prosecution to
bring and examine any independent witness,
such as neighbour, or any other witness,
to prove conscious possession over the
said hut to be that of accused Rajesh.
[h] Prosecution story is not certain. In one
breath, prosecution claims that it was
kidnapping for ransom and then also claims
that it was for committing unnatural
offence.
[i] It is impossible to believe that the
accused had a ready design of commission
of offence and screening of evidence, and
for that purpose, he had kept the pit
ready, duly dug, and after committing
offence, buried the dead body of Mukesh
from where it was exhumed.
[j] The prosecution story that the clothes of
the deceased were recovered from the place
of residence of the accused is
unbelievable, and conflicts with discovery
of undergarments and pant etc., recovered
from the scene of offence.
[k] The medical evidence revealing that the
swab taken from anal did not reveal semen
or sperms shatters the prosecution story
of carnal intercourse.
[l] The tear in the anal canal is not proved
to be due to insertion of penis, since
possibility of insertion of some other
article cannot be ruled out.
[m] It is unbelievable that in a room of
10 x1 , all this scramble was possible
without any demur, cry, scream or shout
in tranquility and without noticing by
anyone in the neighbourhood.
15. In support of above submissions, learned Adv. Mr.
Shrivastava has placed reliance on following judgments:-
[1]
Tipparam Prabhakar Vs. State of Andhra Pradhes
[JT 2009 (6) 205 SCALE 2009 (6) 375],
[2] Salim Akhtar alias Mota Vs. State of Uttar
Pradesh [AIR 2003 SC 4076],
[3] Bullu Das Vs. State of Bihar [1998 (8) SCC
130],
[4] Prabhoo Vs. State of Uttar Pradesh [AIR 1963 SC
1113],
[5] (1) Geeta Keshav Shankar # Geeta Mukesh Kharwa;
(2) Gauri Manga Kharwa @ Wagheri; (3) Santosh
Kanti Kharwa, Mumbai Vs. State of Mah. [2009 EQ
0-443].
These judgments are relied upon mainly to urge
that:-
[1] The Memorandum Statement leading to
recovery can be admitted in the evidence
limited to the extent of fact of recovery
of articles and not for other statements
contained therein.
[2] The medical evidence as to cause of death
being assault does not, in any manner,
directly prove the involvement of the
accused in commission of offence.
16. Learned Adv. Mr. A.R. Prasad for the appellant in
Criminal Appeal No. 58 of 2010 submitted as follows:-
[1] Prosecution has utterly failed to prove
that at a particular point of time in the
entire incident, the accused no.2 was
present.
[2]
As the involvement of accused no.2 at any
particular point of time and for any
particular act is not proved, the
conviction of accused is based on
suspicion than proof, and he deserves to
be acquitted.
[3] This appellant may be in bad company, but
was not an abetter or accessory in
commission of offence, subject-matter.
He, therefore, urges for clean acquittal.
17. In the light of rival submissions, this Court has
re-assessed and re-appreciated the evidence.
Classification of Evidence
18. The evidence can be classified as follows:-
A. Circumstantial evidence, namely
testimony of PW 1 Sau. Aruna
Gajbhiye, who is the witness of last
seen of the fact of deceased Mukesh
leaving the house in the company of
accused persons.
B. Extra-judicial confessions given by the
accused persons to PW 2 Rajendra
Gajbhiye and PW 5 - Ramashankar Mishra.
C.
Evidence
clothes,
of discovery
weapon of
of dead
assault
body,
and
equipments used for screening the
evidence, done at the behest of the
accused.
D. Evidence of relevant fact as to place
of the burial, i.e., the hut being
raised by the accused.
E. Medical evidence and evidence relating
to report of Chemical Analyser.
------
Discussion on Evidence
19. A. Circumstantial evidence, namely
testimony of PW 1 Sau. Aruna
Gajbhiye, who is the witness of
last seen of the fact of deceased
Mukesh leaving the house in the
company of accused persons.
This Court has already referred to the testimony of
PW 1 Sau. Aruna. The relevant portion of her testimony
reads as follows:-
1. ......................................
.........I know Accused No.1 Rajesh Sakhare
before the Court. At the distance of 2-3 house
of my house Accused No.1 Rajesh had a shop of
press of the clothes. My son Mukesh used to
take our clothes for press at the shop of
Accused No.1 Rajesh. Therefore, there was
acquaintance between Accused No.1 Rajesh and my
son Mukesh. Accused No.2 Dinesh is the friend
of Accused No.1 Rajesh, therefore, there was
acquaintance between with deceased Mukesh. I
know Accused No.2 Dinesh before the Court is
the same. Both the accused persons used to
come to my house to meet my son Mukesh and,
therefore, I know both the accused.
2. ......................................
.........Mukesh took lunch at my house. At 11
a.m, Accused No.1 Rajesh came to my house.
Accused No.2 Dinesh also came along with Rajesh
at my house. At that time, I was present at my
house. Mukesh wear black jeans pant so also
sweater and Jacket having white coloured chain.
Then Mukesh went along with the Accused from my
house. They went from my house at 11 a.m.
Thereafter, for the whole day, Mukesh did not
come to the house. I went to the house of
Accused No.1 Rajesh to ask him but Accused No.1
Rajesh was not present at his house. During
the night also Mukesh did not return to the
house. During the night I myself alone was
present at my house, therefore, could not go
anything.
[Quoted from page nos. 60 and 61 of the paper-book].
The circumstantial evidence of last seen , thus,
begins and ends with the statement of PW 1 Sau. Aruna.
20. B. Extra-judicial confessions given by
the accused persons to PW 2
Rajendra Gajbhiye and PW 5 -
Ramashankar Mishra.
As far as confessional statements of accused are
concerned, the relevant portions of oral evidences of PW 2
Rajendra Gajbhiye and PW 5 Ramashankar Mishra relied upon
by the prosecution as confessional statements made to PW 2
Rajendra Gajbhiye and PW 5 Ramashankar Mishra, are as
follows:-
Statement made to PW 2 Rajendra Gajbhiye :-
2. ......................................
..........At that time, Major of RPF Shri R.S.
Mishra came there, and enquired to Accused No.1
Rajesh. At that time Accused No.1 told that he
took Mukesh on Luna forcibly and took in Ajgar
layout near Dighori Naka at his house, and that
Accused No.1 Rajesh committed murder of Mukesh
and buried the dead body under the earth, in
his hut. Accused No.1 Rajesh further told that
in this way, it was the intention to extract
ransom from parents of Mukesh.
3. ......................................
.........I also know Accused No.2 Dinesh before
the Court. Accused No.1 Rajesh told that
Accused No.2 Dinesh was also accompanied me.
[Quoted from page no. 63 of the paper-book. To highlight
and relevant and important sentences, underlining is
provided].
Statement made to PW 5 Ramashankar Mishra :-
1. ......................................
..........Myself and Rajesh started on motor
cycle and after going some distance I again
made enquiry with Rajesh telling him that he
should tell truth and should not be afraid of
anything.
2. Thereupon Rajesh told me that Mukesh
was murdered by himself, i.e., Rajesh and Yadao
by assaulting Mukesh with the help of stick.
Rajesh told me that the murder was committed at
Dighori Naka and the dead body of Mukesh was
buried in a room locality in Dighori Naka.
[Quoted from page nos. 98 and 99 of the paper-book].
21. C. Evidence of discovery of dead body,
clothes, weapon of assault and
equipments used for screening the
evidence, done at the behest of the
accused.
A N D
D. Evidence of relevant fact as to
place of the burial, i.e., the hut
being raised by the accused.
This aspect is proved from the statement of PW 7
Mofijmiya Mohd. Bapumiya Deshmukh. He has deposed that
accused revealed the information, and based thereon, the
Memorandum of Statement [Exh.45] was drawn. He further
deposed that he along with policemen went to the spot,
discovered the location, equipments, weapon of assault, and
exhumed the dead body.
It is seen from Exh.45 that after recording the
narration of event, the accused told the police to accompany
him to show the place of offence where the dead body of
Mukesh was also buried.
Panch witness is PW 3 - A.G. Lade. This witness
has proved the Panchanama of Memorandum of Statement as well
as subsequent Panchanama, i.e., Spot Panchanama, Seizure
Memos [Exhs.45, 46, 47, 48, 49, 50, 51 and 52]. Evidence of
PW 3
A.G. Lade was not shattered in the cross-examination.
Therefore, this witness has proved the facts, namely
Memorandum to lead to recovery under Section 27 of Evidence
Act, recovery of incriminating material, the dead body,
Panchanamas of spot and Inquest etc.
22. E. Medical evidence and evidence
relating to report of Chemical
Analyser.
Medical evidence relates to injuries and cause of
death.
Dr. V.R. Agrawal, who carried out the post-mortem
examination, could not be available, and his opinion is
proved by PW 8 - Dr. Pradeep Gangadhar Dikshit. This
witness has proved the Report of Autopsy by identifying the
signature of Dr. V.R. Agrawal.
Moreover, Accused No.2 had admitted the medical
report.
Head injury being the cause of death is not
disputed.
In so far as the aspect of carnal intercourse is
concerned, the Doctor has opined that the tear to anal canal
is possible due to insertion of penis.
It is a matter of record that the anal swab does
show not presence of spermatozoa. Other opinions arising
from Chemical
significance.
ig Analyzer s Report are not of much
23. In the light of discussion noted above, this Court
has to consider whether different facts, namely:-
[a] Last seen ,
[b] extra-judicial confessional statements,
and
[c] proof of accused persons being authors
of crime,
are proved by circumstantial evidence.
24. In the statement of PW 1 Aruna, she claims that
Mukesh went with accused persons at 11-00 a.m.
In the cross-examination, she admits that she had
stated in the statement made to police that Accused No.2
Dinesh came to her house at 11-00 a.m., on 25th December,
1998, and Mukesh went with him, and she does not know why
this is not recorded in the statement.
PW 1 Aruna claimed in the Examination-in-Chief
itself that she went to the house of accused Rajesh to ask
about Mukesh, but Rajesh was not present at his house. She
has not explained as to why her husband was not involved in
the searching, nor she states as to why has she failed to
contact PW 2 Rajendra who stays just two houses away from
her house.
25.
The confessional statement given to PW 2 Rajendra
and PW 5 Ramashankar Mishra discloses that the accused no.
1 took Mukesh. PW 2 Rajendra later says in para 3 of his
oral testimony that Accused No.1 Rajesh told that Accused
No.2 Dinesh was also accompanied me.
It is not clear as to whether all the three, namely
both the accused and deceased Mukesh, did ride the Luna, or
otherwise.
26. In the oral report [Exh.40] submitted to police, PW
2 Rajendra has stated that PW 1 Aruna had told him that
she had enquired with Rajesh about her son Mukesh, but he
did not tell anything and, therefore, she wanted Rajendra to
make enquiries. He further states in the said report that:-
- He accompanied by his brother s wife [Aruna
PW 1], Raju Gaikwad, Bhimrao Chandankhede and
some other persons went to Rajesh to make
enquiries.
- In the beginning, Rajesh told that he did not
know anything. However, PW 5 Ramashankar Mishra
asked Rajesh.
- Rajesh has then disclosed the incident of
having committed the offence along with Accused
No.2 Dinesh for recovering ransom from father
of Mukesh.
27.
Through the Panchanama of Recovery of Clothes [Exh.
52], the clothes on the person of the deceased were
collected, which consist of [1] T-shirt, [2] Full sleeved
white sweater, and [3] Sandoz Banian.
Through Seizure Panchanama [Exh.51], Accused No.1
gave discovery of clothes and the Luna. These clothes are
[1] Faint pink coloured underwear having one pocket with a
chain on right side front portion, and [2] black coloured
Jeans full-pant having two pockets on its front side etc.,
with a lable reading Essas CLUB DENIM .
It is, thus, seen that the total clothes shown to
be that of deceased are:-
[1] Item Nos. 1 to 3 taken from the corpse of
Mukesh, and
[2] those revealed by the Accused No.1.
28. It is seen from the description of articles
referred for chemical analysis that Item No.3 consists of
clothes recovered from the person of deceased. The group of
the blood seen on the clothes is B which matches with the
blood group of the deceased.
29. In the light of foregoing discussion, this Court
has to judge:-
[a] Is the fact of last seen proved in so
igfar as both accused persons are
concerned?
[b] Is the extra-judicial confessional
statement proved?
[c] Has the prosecution proved the discovery
of place of offence at the behest of
accused and the discovery of dead body
etc.?
30. In so far as the confessional statement is
concerned, this Court finds that the confessional statement
given by the accused no.1 to PW 2 Rajendra shows his
involvement, and he seems to have supplemented, saying that
Accused no.2 Dinesh also accompanied him.
31. In the confessional statement made to PW 5
Ramashankar, the Accused No.1 is said to have involved
himself. PW 5 Ramashankar does not, in any manner,
disclose that confessional statement of accused no.1
pertained to involvement of Accused No.2.
32. PW 2 Rajendra states in the First Information
Report lodged by him that the confessional statement was
made in presence of his brother s wife [Aruna- PW 1],
himself, Bhimrao Chandankhede, some other persons and PW 5
Ramashankar Mishra.
33. The story narrated by PW 5 Ramashankar relating
PW 2
to confessional statement is that he took the motorcycle of
Rajendra, took the Accused No.1 with him, encouraged
him to be candid and that accused no.1 made confessional
statement. He then supplements that PW 2 Rajendra was
also accompanying.
34. The sum effect of version of PW 2 Rajendra
contained in First Information Report, narrated by him and
narrated by PW 5 Ramashankar poses a parallax, and
definite and unambiguous picture of confessional statement
is not presented.
35. In the result, this Court rejects the prosecution
story of extra-judicial confession.
36. In so far as the involvement of Accused No.2
Dinesh as an accessory or participant in the commission of
offence as a co-accused, or otherwise, is concerned, the
story narrated by PW 1 Aruna is such that she exerts to
incidentally involve the Accused No.2.
Moreover, she admits in cross-examination that she
had told the police that Accused No.2 Dinesh had come to
her house at 11-00 a.m., however, her statement recorded by
police does not contain said narration.
In the oral report, PW 2 Rajendra states that
both accused persons made Mukesh to forcibly sit on the Luna
supported by PW 1
and took him away. However, no such incidence of force is
Aruna.
In the confessional statement which this Court has
already rejected, involvement of Accused No.2 is seen in the
testimony of PW 2 Rajendra, however, it is not seen in the
testimony of PW 5 Ramashankar.
The result is that involvement of Accused No.2 is,
thus, not proved.
37. In so far as Accused No.1 Rajesh is concerned,
though due to unacceptable involvement of Accused No.2 by PW
1 Aruna, her testimony to that extent has come in doubt,
question is whether her testimony should be accepted in part
to the extent of involvement of Accused No.1?
The evidence against Accused No.1 seen collectively
is as follows:-
[a] PW 1 Aruna has found that Mukesh went
with Accused No.1.
[b] PW 3 Ashok Lade and PW 7 Mofijamiya
Deshmukh, Investigating Officer, have
proved that :-
1. Apart from incriminating
confessional statement made by
the accused [which part of the
memorandum is not admissible in
evidence], the accused agreed
and assured police to escort to
the place where dead body of
deceased Mukesh was buried.
2. Accused No.1 Rajesh took out
the key of the hut kept on the
cement sheet and opened the
door.
3. Accused No.1 pointed out the
spot on ground below the iron
cot as the place where dead body
was buried.
4. Upon digging, the dead body was
exhumed.
5. The dead body was identified to
be that of deceased Mukesh.
6. The wooden stump, spade, crow
bar, pickaxe, shovel with wooden
handle were found on the spot.
[c] Testimony of PW 3 Ashok Lade, Panch
witness, is not shattered, nor any
circumstance has been shown as to why the
testimonies of PW 3 Ashok, PW 7
Mofijamiya Deshmukh and PW 8 Dr.
Pradeep Dikshit should be disbelieved.
[d] It is also not shown as to why statement
of PW 1 Aruna should be disbelieved as
far as involvement of Accused No.1 is
concerned.
38. Fact of last seen is a fact where a person claims
to have seen the accused in the company of the deceased at
latest point of time.
39. PW 1 Aruna states that she has seen, namely she
has actually witnessed Accused No.1 going out of her house
with deceased Mukesh.
ig The fact of deceased Mukesh being in
company of Accused No.1 cannot be described in so many words
more than what PW 1 Aruna has done. It would have been
possible for the police to search more evidence. However,
failure to do so does not by itself destroy the version of
PW 1 Aruna. When the recovery of dead body and other
incriminating material at the instance of accused no.1 is
done, the fact of recovery of dead body and other
incriminating material sufficiently involves and ties the
accused no.1 with the incident.
In the result, involvement of Accused No.1 in the
commission of offence is positively made out and duly
proved. Therefore, this Court holds that the offence of
murder is committed by Accused No.1.
40. The medical evidence does not conclusively prove
the act of sodomy.
41. The evidence relating to kidnapping for ransom is
already held not proved by the Sessions Court. In absence of
proof of motive as to ransom or sodomy, the act of
kidnapping remains an act in isolation done for the purpose
of murder. Though apparently motive is not proved by the
prosecution, it does not matter, rather it becomes an
irrelevant factor when fact of homicidal death becomes
conclusive.
accepting proof of
By igapplying the same yardstick,
last seen , it will have to be held that
i.e., by
the deceased, who was a minor, was kidnapped by the Accused
No.1, may be by some lure, though not by force.
42. This Court, therefore, confirms and endorses the
conviction of the accused No.1 for offences punishable under
Sections 364, 302 and 201 of Indian Penal Code.
In view that Accused No.2 is found not involved,
Section 34 of Indian Penal Code has no application.
43. Now, comes the question of sentence. Heard both
sides on the point of sentence.
44. It is seen that in absence of proof of carnal
intercourse, and in absence of proof of motive, the offence,
in question, turns out to be an act of man slaughter.
Prosecution has failed to bring other sets of offences on
record which would paint the commission of offence to be
heinous, devoid of basic human values, ghastly etc. For
that matter, every act of murder has to be ghastly.
Nevertheless, considering the aspect of sentence, to tend it
to capital punishment, the case has to be rarest of rare.
Bare fact of absence of clothes on the corpse and injury to
the anus ipso facto will not convert it to be a case of
rarest of rare category.
In the result, the capital punishment ordered by
the Sessions Court cannot be confirmed. Hence order:-
[i] Conviction of Accused No.1 for offences
punishable under Sections 302, 364, 201 of
Indian Penal Code is maintained. For offence
under Section 302, he is sentenced to suffer
Life Imprisonment, as death sentence is not
confirmed. Other sentences are maintained.
[ii] All substantive sentences for offences under
Sections 302, 364, 201 of Indian Penal Code to
run concurrently. Set off be given to Accused
No.1 for the period he is in custody.
[iii] Accused No.1 is acquitted of the offence
punishable under Sections 364-A and 377 of
Indian Penal Code.
[iv] Accused No.2 is acquitted of all the charges
levelled against him and impugned Judgment and
Order as against him is quashed and set aside.
He be set at liberty if not required in any
other matter. Fine amount, if any, paid by him
shall be refunded to him.
JUDGE JUDGE
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