Bombay High Court
The State Of Maharashtra Through ... vs Rajesh S/O Dhannalal Daware And ... on 5 May, 2016
Bench: B.R. Gavai
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL CONFIRMATION CASE NO. 1 OF 2016
WITH
CRIMINAL APPEAL NO. 140 OF 2016
WITH
CRIMINAL APPEAL NO. 103 OF 2016.
CRIMINAL CONFIRMATION CASE NO. 1 OF 2016
The State of Maharashtra,
through Police Station Officer,
Lakadganj Police Station, Nagpur. ....APPLICANT.
// VERSUS //
1] Rajesh s/o Dhannalal Daware,
R/o Plot No. 5, Vanjari Layout,
Kalamna, Nagpur,
2] Arvind s/o Abhilash Singh,
R/o Priti Layout, Nara Road,
Jaripatka, Nagpur.
Both convicts in Central Prison,
Nagpur. ....RESPONDENTS.
Mrs. Bharti H. Dangre, Public Prosecutor assisted by Smt. Jyoti
Vajani, Special Counsel, for applicant State.
Mr. Mir Nagman Ali, Advocate for respondent no.1,
Mr. C. R. Thakur, Advocate for the respondent no. 2,
Mr. R.M. Daga, Advocate for complainant.
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CONF.1.2016
2
WITH
CRIMINAL APPEAL NO. 140 OF 2016
Rajesh s/o Dhannalal Daware,
Aged about 19 years, Occ.
Student, R/o Plot No. 5, Vanjari
Layout, Kalamna, Nagpur
(Presently in Central Prison, at
Nagpur). ....APPELLANT.
// VERSUS //
The State of Maharashtra,
through Police Station Officer,
Lakadganj Police Station, Nagpur ....RESPONDENT.
Mr. Mir Nagman Ali, Advocate for the appellant.
Mrs. Bharti H. Dangre, Public Prosecutor assisted by Smt. Jyoti
Vajani, Special Counsel, for respondent State.
WITH
CRIMINAL APPEAL NO. 103 OF 2016
Arvind s/o Abhilash Singh,
aged about 21 years, Occ.
Private, R/o Priti Layout,
Nara Road, Jaripatka, Nagpur.
(Presently in Central Prison,
at Nagpur). ....APPELLANT.
// VERSUS //
The State of Maharashtra,
through Police Station Officer,
Lakadganj Police Station, Nagpur ....RESPONDENT.
Mr. C.R. Thakur, Advocate for the appellant.
Mrs. Bharti H. Dangre, Public Prosecutor assisted by Smt. Jyoti
Vajani, Special Counsel, for respondent State.
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3
CORAM : B.R. GAVAI & MRS. SWAPNA JOSHI, JJ.
DATE OF RESERVING FOR JUDGMENT : MAY 2, 2016.
DATE OF PRONOUNCEMENT OF JUDGMENT: MAY 5, 2016.
JUDGMENT (PER B.R. GAVAI, J.)
1] Since the learned Sessions Judge, Nagpur by judgment
and order dated 4.2.2016 in Sessions Trial No. 488/14 has awarded
death penalty to the accused Nos. 1 & 2, the reference has been
made to this Court for confirmation in Criminal Confirmation Case No.
1/16.
2] Both the accused/appellants have also preferred appeals
being aggrieved by the judgment and order of conviction and
sentence dated 4.2.2016. Though both the appellants are
condemned persons, for the sake of convenience, hereinafter we will
be referring to them as accused.
3] The prosecution case in nutshell as could be gathered
from the material placed on record is thus :-
PW.1 Dr. Mukesh Chandak, the first informant, is a
resident of Guru-Vandana Housing Society, Lakadganj Road,
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Nagpur. PW.1 Dr. Mukesh Chandak as well as his wife Premal are
both Dentists by profession and running a clinic known as "Chandak
Dental Clinic" which is located at Darodkar Square, Central Avenue
Road, Nagpur. The couple was blessed with two sons, namely,
Dhruva 11 years and younger son deceased Yug, who was about 8
years old. They were studying in 6th and 2nd standard respectively in
the Centre Point School, Nagpur. The school hours of the elder son
Dhruva were beginning from 7.30 a.m. and he used to return home
from the school at 2.30 p.m., whereas the timings of the younger son
Yug were from 9 a.m. and he used to return to home at around 4.15
p.m. Both the children used to travel in a private school bus for their
journey to the school and return.
4] It is the prosecution case that the accused No.1 Rajesh
was employed since January, 2014 in the "Chandak Dental Clinic".
He was assigned duty at the reception counter and was working as a
Computer Operator-cum-Receptionist. His duty included updating the
details of the patients in the computer and also taking their entries in
the register maintained in the clinic. It was also his duty to send the
waiting patients in sequence in chamber of the doctors. He was also
supposed to collect the fees of dental treatment from the patients as
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per the directions of the doctor. He was also assigned the duty to
give suitable appointments to the patients for dental check up. In
order to maintain discipline in the dental clinic, a red colour T shirt of
Status-quo company was provided to the employees as a dress code.
The employees were also instructed to use blue colour jean pants.
Since the accused No.1 Rajesh was employed in the clinic of Dr.
Chandak, he was also given red colour T shirt of Status-quo company
by PW.1 Dr. Chandak. It was the practice of PW.1 Dr. Chandak to
take back the red T shirts whenever an employee left the job. It is
the prosecution case that the accused Rajesh attended the work from
January, 2014 till first week of April, 2014. However, thereafter he
was irregular. He remained absent in the month of April 2014 under
the pretext of examination. The salary paid to accused No.1 Rajesh
was about Rs.3000/- per month.
5] It is also the prosecution case that the employees in the
dental clinic were acquainted with the children of Dr. Chandak as they
used to visit the clinic. Whenever victim Yug used to come to clinic,
he used to mix up with the staff members. He used to play games on
the computer of the clinic kept at the respective counter. It is the
prosecution case that in the month of July, 2014 when deceased Yug
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had visited the clinic of his father in the evening hours, after meeting
his parents he started playing games on the computer which was on
the table of the accused no.1 at reception counter, wherein accused
was working. He was handling the hydraulic chair of the accused
roughly. As such, the accused Rajesh became furious and gave one
slap to the victim Yug. On the deceased Yug informing about the
same to his parents, PW.1 Dr. Chandak gave understanding to the
accused and asked him to behave in a proper manner with his son.
PW.1 Dr. Chandak had also received complaints from the patients
that the accused used to charge Rs.100/- more than what was the
fees determined by the doctors. It is the prosecution case that one
Naresh Machale PW.6 had made complaint about the same to Dr.
Chandak.
6] It is further the prosecution case that on the day of the
incident, i.e. on 1.9.2014 the sons of first informant Dr. Chandak,
namely, Dhruva and Yug left the house for attending the school in the
morning. PW.1 Dr. Chandak and his wife came to the clinic at around
11 a.m. and started their routine work. At around 4 p.m. the driver of
Dr. Chandak, namely, Raju Tote had gone to the residence of PW.1
Dr. Chandak, so as to collect Yug and take him for the dance class.
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However, Yug was not found at the residence. Raju Tote received
the information from watchman PW.31 Arun Meshram that victim Yug
had gone on the scooty of one staff member of the clinic. The driver,
therefore, immediately contacted Dr. Premal - mother of Yug and
informed her that Yug had left the house for clinic. As such, PW.1 Dr.
Chandak immediately rushed to his house to take stock of the
situation. After Dr. Chandak reached house, PW.31 Arun Meshram
informed him that minor Yug had gone on a scooty accompanied with
one young boy of 20 to 22 years wearing red colour T shirt of half
sleeves. As such, Dr. Chandak and his wife started making search of
Yug. They first searched him in the neighbourhood area. However,
they could not trace Yug. The residents of area also on coming to
know about the same reached the spot. Accordingly, PW.1 Dr.
Chandak, left with no other alternative, went to Lakadganj Police
Station and lodged a report regarding kidnapping of his son Yug by
an unknown person wearing red colour T shirt of half sleeves. On the
basis of the oral report of PW.1 Dr. Chandak which is below Exh. 24,
a printed FIR came to be registered below Exh. 25 and a crime came
to be registered vide Crime No. 287/14 for the offence punishable
under Section 363 of the Indian Penal Code. On the crime being
registered, PW.50 Satyanarayan Kisanlal Jaiswal issued a search
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report to all the Police Stations and police control room in the Nagpur
city, therein giving description of the victim along with his photograph.
PW.25 Nilesh Gosavi - PSI on receipt of the information went to the
spot from where minor victim Yug was abducted and drew a spot
panchnama. In the meanwhile, PW.1 Dr. Chandak received the call
on his cell phone demanding ransom. It was also revealed that there
were two culprits who whisked away the minor Yug on scooty. PW.1
Dr. Chandak recollected that accused Rajesh did not attend the duty
since second week of August, 2014 and suspected that accused No.1
Rajesh may be involved in the crime.
7] As such, Lakadganj Police Station called Rajesh Daware
for investigation. During the interrogation accused No.1 Rajesh
confessed about the crime and informed that he accompanied with
his accomplice accused no.2 Arvind Singh had kidnapped and
abducted Yug and committed his murder. The Investigating Officer
also apprehended the accused Arvind Singh. Cell phone and SIM
cards were recovered from the custody of both the accused under
panchnama. On the memorandum under section 27 of the Indian
Evidence Act, the accused expressed his willingness to show the
scene of the crime and the spot where the dead body of the
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deceased Yug was buried. The accused led the police and the
panchas to the spot located in the rivulet within the vicinity of village
on Patansawangi-Lonkhairi road. The dead body of the deceased
Yug was found concealed below the bridge. The body was found
covered with sand particles and a boulder. On the body being
exhumed from the sand particles and the boulder, Dr. Chandak was
called to identify the body. He identified the body to be of his son.
The dead body was referred to the Government Medical College and
Hospital for autopsy. The post-mortem was conducted and it was
opined that the victim had breathed his last due to smothering.
According to the medical experts, the victim Yug might have died
between a period of 36 to 48 hours prior to the conducting of the post-
mortem.
8] During investigation, it was also revealed that accused No.
1 Rajesh had attempted to involve his another friend Sandip Katre in
the crime but he refused to get involved. It was revealed during
investigation that the accused Arvind Singh wearing red T shirt and
the accused No.1 wearing the almond colour shirt had come together
on the spot of kidnapping. The accused no.1 stood at a distance after
the deceased Yug came from the school. The unsuspecting child
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thinking accused no.2 to be an employee of his father's clinic
accompanied him at some distance. The accused no. 1 also joined
and vanished from the spot. During investigation, it was also
revealed that while committing the crime, the accused had purchased
the fuel from petrol pump known as 'Sundar Auto Centre' of Bharat
Petroleum located at Koradi road, Nagpur. The Investigating Officer
visited the concerned petrol pump and recovered the footage of
CCTV camera installed in the premises of the petrol pump. On the
basis of the memorandum of the accused no.1 under Section 27 of
the Indian Evidence Act, one chappal, almond colour shirt, jean pant,
handkerchief, ATM card, motor bike and scooty used in the
commission of the crime came to be recovered. Similarly, on the
basis of two memorandums of accused no.2 under Section 27 of the
Indian Evidence Act, the Investigating Officer recovered the sky blue
T shirt of school uniform of deceased Yug and also the clothes of the
accused and Bali (ear ring) which was in the ears of the deceased
Yug when he was kidnapped.
9] During investigation, it was also revealed that Ankush
accused no.3, aged 17 years, younger brother of accused No.1
Rajesh was also involved in the crime. Therefore, he was
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apprehended for the purpose of investigation. The mobile phone in
the possession of the said Ankush was seized in the presence of
PW.32 Vicky Shah vide panchnama Exh. 139. The said mobile was
having SIM cards bearing Nos. 7745855431, 8407954414 and
7798173472. The IEMI numbers of the said mobile phone were
911256306126117 and 911256306126125.
10]
During the investigation, test identification parade of the
accused was conducted in which witnesses identified the accused.
After receipt of the other material including the reports of the
Chemical Analyser, etc. the charge-sheet came to be filed in the
Court of Judicial Magistrate, First Class, Court No.3, Nagpur against
both the accused nos. 1 & 2. A separate charge-sheet came to be
filed against juvenile-in-conflict with law before the Juvenile Justice
Board, Nagpur.
11] After receipt of the charge-sheet, since the case was
exclusively triable by the Sessions Court, the same came to be
transmitted to the Court of Sessions, Nagpur on 28.11.2014. The
charge came to be framed below Exh. 11 for the offence punishable
under Section 120-B, Section 364-A read with Section 34, Section
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302 read with Section 34, Section 201 read with Section 34 of the
Indian Penal Code. The accused pleaded 'not guilty' and claimed to
be tried.
12] In the course of the trial, the prosecution examined about
50 witnesses and exhibited voluminous documentary evidence. The
defence also examined six witnesses as defence witnesses. At the
conclusion of the trial, the learned trial Judge convicted both the
accused for the offence punishable under Section 364-A read with
Section 34 of the Indian Penal Code and sentenced to suffer death
penalty. The learned trial Judge also convicted them for the offence
punishable under Section 302 read with Section 34 of the Indian
Penal Code and sentenced to suffer death penalty. The learned trial
Judge directed the accused to be hanged by the neck till they are
dead as provided under Section 354(5) of the Criminal Procedure
Code. The learned trial Judge also convicted both the accused for
the offence punishable under Section 120-B of the Indian Penal Code
and sentenced them to suffer imprisonment for life and to pay a fine
of Rs.10,000/- and in default to suffer further R.I. for three years.
The learned trial Judge also convicted both the accused for the
offence punishable under Section 201 read with Section 34 of the
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Indian Penal Code and sentenced them to suffer R.I. for seven years
and to pay a fine of Rs.5,000/- and in default to suffer further R.I. for
one year.
13] Being aggrieved by the aforesaid order of conviction and
sentence, both the appellants have preferred Criminal Appeal No.
140/16 and Criminal Appeal No. 103/16. Since a penalty of death
sentence is imposed, a reference is made to this Court for
confirmation vide Criminal Confirmation Case No. 1/16.
14] We have heard Smt. B.H. Dangre, learned Public
Prosecutor for the State and Shri Mir Nagman Ali, learned Counsel
for the accused No.1 Rajesh Daware in Criminal Appeal No. 140/16
and Shri C.R. Thakur, learned Counsel for the accused No.2 Arvind in
Criminal Appeal No. 103/16.
15] Smt. B.H. Dangre, learned Public Prosecutor for the State,
submits that in the present case the prosecution has proved all the
incriminating circumstances beyond reasonable doubt. She further
submits that the prosecution has also established a chain of events
which is so interwoven to each other that it leads to no other
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conclusion than the guilt of the accused. The learned Public
Prosecutor submits that the prosecution has been able to prove that
every hypothesis except the guilt of the accused is ruled out. She
submits that from the evidence of PW.31 Arun Meshram, PW.2 Rajan
Tiwari, PW.17 Biharilal Sadhuram Chhabriya, it is clear that the
accused had abducted the deceased Yug from the spot near his
residence. She further submits that from the evidence of PW.23
Rupali Kansare, it would reveal that the accused along with the
deceased had come to the house of accused No.1 Rajesh and
changed the vehicle. She further states that from the CCTV footage,
it will be clear that the accused had come to the petrol pump on
Koradi road for refueling the vehicle. She further submits that the
evidence of PW.9 Divya Chandel, PW.11 Namdeo Dhalde and PW.10
Shriram Khadatkar would reveal that the deceased was seen in the
company of the accused in the evening of 1st September, 2014. She
submits that from the evidence of PW.28 Mahesh, it will be clear that
the body of the deceased was discovered at the instance of the
accused No.1 Rajesh from the spot which was exclusively within the
knowledge of the accused no.1. She submits that from the medical
evidence, it would reveal that the death of the deceased had occurred
between 36 to 48 hours prior to the conducting of the post-mortem. It
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is submitted that the post-mortem is conducted at 12 noon on
3.9.2014. As such, the said period would come between 12 noon of
1st September, 2014 to 12 midnight of 1st & 2nd September, 2014. It
is, therefore, submitted that the time gap between the deceased and
the accused seen together and the death of the deceased occurring,
is so narrow that it leads to no other conclusion than the guilt of the
accused.
16] The learned Public Prosecutor further submits that the
motive of the accused and the prior conspiracy is also established
from the evidence of PW.19 Sonam Meshram, PW.8 Sandip Katre
and PW.7 Sushila Bhoyar. It is further submitted that the prosecution
has also established that the accused had made calls to the PW.1
Dr. Chandak for ransom. It is submitted that since the CCTV is an
evidence pertaining to the information contained in electric record, it
is required to be proved under the provisions of Section 65-B of the
Indian Evidence Act. It is submitted that, from the evidence of PW.35
Shrikant Sharma, the Manager of the petrol pump, PW.30 Hitesh
Rathod and PW.38 Ajay Salunke, it will be clear that all the conditions
as required under Section 65-B are satisfied. She further submits
that the C.A. report and the DNA analysis, so also the Call Detail
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Reports, which are proved beyond reasonable doubt also establish
the guilt of the accused/appellants. The learned Public Prosecutor,
therefore, submits that no interference is warranted in the present
case and the appeal deserves to be dismissed and the sentence of
death needs to be confirmed.
17] Shri Mir Nagman Ali, the learned Counsel appearing on
behalf of the appellant Rajesh Daware, on the contrary submits that
the prosecution case is full of lacunae. The very authenticity of the
FIR is in question. He submits that all the eye-witnesses are planted
witnesses. It is submitted that as a matter of fact, none of the eye-
witnesses had seen the appellant and they are falsely deposing at the
behest of the prosecution. The learned Counsel submits that PW.28
Mahesh, who is panch on discovery of the dead body, is a doctor by
profession and, therefore, his evidence cannot be said to be reliable,
inasmuch as the first informant is also a doctor. The learned Counsel
submits that the panchnamas would reveal that all the panchas are
planted witnesses and, therefore, no reliance could be placed on the
said panchnamas. The learned Counsel further submits that the
recovery of the mobiles is also a farcical. It is submitted that the
ownership of the mobile numbers of the accused is not proved. The
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learned Counsel further submits that from the location of the mobile of
Investigating Officer as has been brought on record by DW.5 Ravi, it
will be clear that at the time of panchnamas, the Investigating Officer
was not at the places where panchnamas were executed and,
therefore, all these recoveries are farcical. It is further submitted that
the log book of the vehicle alleged to be used in the discovery and
recovery pursuant to memorandum under Section 27, does not tally
with the timings of said discoveries and recoveries. The learned
Counsel further submits that the evidence of PW. 45 Mohan Tikale,
Executive Magistrate would reveal that the test identification parades
were not done in a proper manner. The learned Counsel further
submits that all the witnesses have identified the accused at serial
No.4 in the row. It is, therefore, submitted that it appears that the
witnesses were informed about the position of the accused in the row
which made easy for them to identify the witnesses. It is submitted
that the photographs of the accused were already published in the
newspapers and, therefore, the identification parades are nothing
else than the farce. It is further submitted that the electronic
evidence regarding the CCTV footage at the petrol pump is not
established in view of provisions of Section 65-B of the Indian
Evidence Act. It is submitted that PW.35 Shrikant Sharma, who was
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the Manager of the petrol pump was not conversant with the
computer and CCTV and as such, his evidence would not be of any
assistance. It is submitted that if his evidence goes, then the
evidence of subsequent expert witnesses will have to be discarded. It
is, therefore, submitted that the prosecution has failed to prove the
incriminating circumstances and in no case it has been successful in
establishing the chain of circumstances which leads to no other
conclusion than the guilt of the accused.
18] Shri C.R. Thakur, the learned Counsel appearing on behalf
of the appellant/accused No.2 Arvind Singh, has almost advanced the
similar arguments. He submits that the evidence of PW.23 Rupali
and PW.11 Namdeo cannot be read into evidence, inasmuch as they
have not been subjected to test identification parade. He further
submits that the perusal of the evidence of witnesses on the last seen
theory would reveal that they had no occasion to have a look at the
accused and the deceased and as such, their evidence is of no
assistance. He further submits that the alleged recoveries at the
instance of the accused are also farcical and planted. He submits
that if the evidence of the defence witnesses is to be believed, it
would reveal that there was no recovery and as a matter of fact, the
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police had planted the material. It is further submitted that the
photographs of the accused while in custody would reveal that the
accused no.1 was already wearing red T shirt and as such, the
alleged recovery of red T shirt is farcical. In the totality of the
circumstances, he submits that the prosecution case is fabricated
and, therefore, the appeals deserve to be allowed and the appellants
acquitted.
19] Voluminous citations have been cited by the learned
Counsel for both the parties. However, we do not wish to reproduce
all of them and make the judgment bulky. Needless to state that we
will be referring to the relevant judgments of Their Lordships of the
Apex Court, while we consider each of the points.
20] With the assistance of the learned Counsel appearing for
both the parties, we have scrutinized the entire material on record
and have also heard the elaborate submissions made on behalf of the
parties.
21] The present case is a case which is based on
circumstantial evidence. The law on the cases based on
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circumstantial evidence is very well crystallized by Their Lordships of
the Apex Court in the case of Sharad Birdhichand Sarda .vs. State
of Maharashtra reported in AIR 1984 SC 1622. It will be
appropriate to refer to the following observations of Their Lordships in
paragraph nos. 152 & 153 of the judgment, which read as under :-
"152. A close analysis of this decision would show
that the following conditions must be fulfilled before a case
against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should
be proved' as was held by this Court in Shivaji Sahabrao
Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793 :
(AIR 1973 SC 2622) where the following observations were
made :
"certainly, it is a primary principle that the accused
must be and not merely may be guilty before a Court can
convict and the mental distance between 'may be' and
'must be' is long and divides vague conjectures from sure
conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency.
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(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused."
"153. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
It could thus be seen that Their Lordships have held that before
convicting an accused in a case based on circumstantial evidence, it
will have to be established that the circumstances from which the
conclusion of guilt is to be drawn are fully established. It is further
necessary that the facts so established should be consistent, only
with the hypothesis of the guilt of the accused. It should be
established that the facts established should not be explainable on
any other hypothesis except that the accused is guilty. The
circumstances should be of conclusive nature and tendency. It is
necessary that the facts established should exclude every possible
hypothesis, except the one to be proved, i.e. the guilt of the accused.
It has further been held that there must be a chain of evidence so
complete as not to leave any reasonable doubt for the conclusion
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consistent with the innocence of the accused and must show that in
all human probability the acts must have been done by the accused.
22] In the light of these guiding principles, we will have to
consider the prosecution case. From the material placed on record, it
appears that the prosecution mainly relies on the following
circumstances :-
I. The theory of the accused persons and the deceased last seen
together,
II. The electronic evidence of CCTV footage,
III. The discovery of the dead body of the deceased and
consequent recovery on the memorandum under Section 27 of
the Indian Evidence Act,
IV. The time gap between the deceased last seen in the company
of the accused and the death occurring is so short that leads to
no other conclusion than the guilt of the accused,
V. Various discoveries and recoveries of incriminating materials
on memorandum under Section 27 of the Indian Evidence Act,
VI. Scientific evidence in the nature of C.A. report and DNA report
connecting the material recovered at the instance of the
accused with the crime,
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VII. Motive,
VIII. Criminal conspiracy,
IX. The evidence of Call Detail Reports showing the conversation
between the accused no. 1 & 2 inter se and by the accused
no.2 to PW.1 Dr. Mukesh Chandak and his employees,
23] We will deal with each of the circumstances independently.
Since the circumstance of the death of the deceased being
homicidal is not disputed by the defence, we need not scrutinize the
evidence of the medical expert in that regard.
I] THE THEORY OF THE ACCUSED PERSONS AND THE
DECEASED LAST SEEN TOGETHER :
The investigation was set in motion on the basis of the oral
report of PW.1 Dr. Mukesh Chandak received in the Police Station
and the First Information Report below Exh. 25. PW.25 Nilesh
Gosavi - PSI was on duty at the Police Station at the relevant time.
His deposition is at Exh. 79. He states that when he was on duty, he
received an information at 5.10 p.m. from PW.1 Dr. Chandak that his
son by name Yug was kidnapped. He states that after receipt of
information, he passed on the information to his superior and called
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the personnel from the detection branch. In the meanwhile, Dr.
Chandak arrived at the Police Station. He further states that he
recorded the statement of Dr. Chandak and read over the same to
him. Since it was correctly recorded, Dr. Chandak put his signature
on it. He further states that pursuant to FIR, he registered Crime No.
287/14 and the investigation was entrusted to Senior Inspector Shri
Jaiswal. He also took station diary entry which is exhibited at Exh.
80. He states that as per the instructions of his superior Shri Jaiswal,
he visited the spot and drew spot panchnama. The spot was shown
to him by watchman of the building Shri Arun Meshram.
The evidence of this witness is sought to be attacked on
the ground that the extract of the FIR is on the backside of the printed
FIR. However, in his cross-examination, he has clearly denied that
the extract of the FIR came to be pasted on the written material of the
complaint. Much attack is sought to be made on this basis.
However, the perusal of the original record would reveal that the copy
of the oral statement of Dr. Chandak which is recorded below Exh. 24
is pasted as it is on the backside of the printed First Information
Report which is below Exh. 25. As such, we find that the contention
in that regard would be of no relevance.
The perusal of the FIR itself would reveal that the first
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informant was informed by PW. 31 Arun Meshram that at around 3.45
p.m. when he was sitting near the gate of apartment, one fair
complexioned unknown boy aged about 20 to 25 years wearing red
coloured half T shirt and white full pant and who had wrapped white
handkerchief around his face, came by scooty, parked his vehicle
near the footpath in front of the gate and asked him whether Yug had
come. He informed him in the negative and asked him to go inside
and see. On having been said so, he was standing at some distance
outside the gate. He had worn the clothes like that of the employees
of Dr. Chandak's clinic. Thereafter, after a period of 15 minutes when
he was brooming for cleaning the premises, Yug came attired in
school dress and by keeping school bag on his chair, he informed him
and asked him to leave the school bag at his house. On this he said
to him that it will require half an hour for him. However, without
speaking anything, he went towards the road. In the First Information
Report, PW.1 Dr. Chandak has clearly stated about PW.31 Arun
Meshram informing that the boy who had kidnapped might be the
employee of his clinic because his clothes were that of clothes of
employees of his clinic.
24] The first of the witnesses, who had seen the deceased in
CONF.1.2016
the company of the accused persons is PW.31 Arun Meshram. His
evidence is at Exh. 131. He states in his evidence that he was
employed as a Watchman in Tiwari Security Company. Since his
appointment, he was deputed as Security Guard at Guru-Vandana
Apartment. His duty hours were from 9 a.m. to 9 p.m. in the evening.
He states that he was acquainted with Dr. Chandak and his family.
There were four members in the family of Dr. Chandak including his
wife and two minor sons, namely, Dhruva and Yug. He further states
that employees of Dr. Chandak used to wear red colour T shirt as a
uniform of his clinic. He further states that the employees used to
visit frequently at the residence of Dr. Chandak. He further states
that he used to sit in front of entrance gate of compound wall of Guru
Vandana Apartment to discharge his duties as a watchman. On
1.9.2014 in the noon hours at around 4 p.m. when he was doing his
duty in front of the entrance gate, one boy aged 20-22 years old
arrived on purple colour scooty bike. There was red colour T shirt on
his person. He asked him as to whether Yug son of Dr. Chandak had
returned to home. The boy parked his vehicle near the footpath. He
asked him about Yug from the footpath only and at that time there
was a scarf wrapped on his mouth. He told him to visit to the house
of Dr. Chandak and get it verified. However, he did not go upstairs
CONF.1.2016
and remained stranded at the footpath. Meanwhile, another resident
of the building Shri Chhabriya returned to his home for lunch. After
sometime, the boy Yug son of Dr. Chandak returned from the school.
The youngster standing on the footpath gave a call to the boy Yug.
There was school uniform of sky-blue colour T shirt and blue colour
half pant on the person of boy Yug. There was some conversation
between Yug and that youngster who was wearing red colour T-shirt.
Thereafter the boy came to him and kept his school bag on his chair
and disclosed that he was going to the clinic of his father. Yug told
the witness to carry the school bag to his home. The witness
disclosed him that it will take 10-15 minutes time to carry school bag
at his home. The witness further states that the minor boy Yug
went near that youngster of purple colour scooty bike. Yug sat on the
scooty bike of that youngster and snatched the scarf which was
wrapped on the mouth of that youngster. The witness states that at
that time he had seen the face of youngster. Thereafter, both of them
went away towards Chhapru Nagar square. He further states that
there was a wooden shop "Tall" of one Tiwari located in the opposite
direction of Guru Vandana Apartment. He further states that at about
4.15 he had been to the house of Dr. Chandak to give the school bag
of boy Yug at his home. He further states that at that time maid
CONF.1.2016
servant by name Sushma was present in the house and she made
enquiry about whereabouts of Yug and he disclosed to her that Yug
had gone along with one youngester employee of clinic of Dr.
Chandak. He had also disclosed to the maid-servant Sushma that
the boy Yug had gone to the clinic as his parents had called him to
the clinic. He further states that after sometime the driver of Dr.
Chandak came to the building. The driver made enquiry with him
about the whereabouts of boy Yug and he disclosed to him that Yug
had gone with the employee of his clinic. Thereafter, he contacted
Dr. Chandak on his phone. After call, Dr. Chandak returned from his
clinic. Mrs. Chandak also rushed to the apartment. He narrated the
incident to Dr. Chandak and his wife. The maid-servant Sushma and
one Smt. Manju, the neighbour of Dr. Chandak also came downstairs
in the courtyard. The witness has identified both the accused in the
identification parade which were held under panchnamas below Exh.
132 & 133. The witness has also identified the T-shirt muddemal
Article No.2 which was seen on the person of the accused no.2 at the
time of the incident. He has also identified the uniform of victim Yug
Article Nos. 1 & 9.
An attack is sought to be made on the evidence of this
witness that there are certain omissions in his evidence. However,
CONF.1.2016
the omissions are not put to the Investigating Officer. It is further to
be noted that the said witness is a natural witness since he is a
watchman of the building. Further, his evidence is corroborated by
the First Information Report which is lodged immediately after the
incident. We, therefore, find that from the evidence of this witness it
could safely be concluded that at around 4.15 p.m. the accused no.2
had gone along with the deceased on a scooty. It could safely be
concluded that after Yug came from the school, the accused no.2 had
conversation with the deceased and the deceased after keeping the
school bag with PW.31 Arun Meshram went along with accused no.2
at around 4.15 p.m.
25] The next witness on last seen theory is PW.2 Rajan Tiwari.
His evidence is at Exh. 32. He states in his evidence that on
1.9.2014 at around 4 p.m. he was sitting on the chair in front of his
shop. He had seen that two unknown boys came from the side of
Chhapru Nagar on purple colour scooty and they stopped in front of
his shop. He had seen that the boy who was driving the scooty
alighted in front of his shop and the boy who was pillion rider started
proceeding further with the vehicle. However, meanwhile the boy
who was standing in front of his shop hurled the abuses to the boy
CONF.1.2016
who went forward with bike. He uttered the words in abusive manner
that "Maderchod, Sale Sidha Nahi Rong Side Ja, Jaldi Hai". (He
hurled the abuses that "Maderchod and Sale" and asked him not to
go straightway but go by wrong side as there was urgency). He
states that he overheard the abuses uttered by the boy to the scooty
bike rider. He states that thereafter he was drinking tea and that time
he saw the boy who was in front of the shop in a frightened condition.
He had also seen that after hurling abuses the scooty bike rider took
U-turn and went by wrong side of the road towards the side of Guru
Vandana Apartment. He further states that when he was taking the
tea at the stall near Mahindra Showroom, at that time he saw that the
boy wearing the red colour half T shirt returned on his scooty bike.
He had brought one boy of near about 8 years old with him. There
was a school uniform of sky-blue colour T-shirt on the person of that
minor boy. He had also seen that scooty bike rider came from the
Guru Vandana Apartment side by the same road which he had gone
earlier from wrong side. He states that he had also witnessed the boy
who was stranding in front of his shop, went running towards the
scooty bike and sat on the backside seat behind the minor boy. The
witness further states that the boy who sat as an pillion rider on the
scooty was wearing the shirt of almond colour. He states that
CONF.1.2016
thereafter the vehicle scooty went towards the Dana Ganja area. He
returned to his shop after enjoying tea.
The witness states that at around 7 to 7.30 p.m. on the
same day he saw residents in the area assembled in front of the
building of Guru Vandana Apartment. He had also gone there to take
stock of the situation. He came to know that the boy was kidnapped
from the building and he was the son of Dr. Chandak. He further
states that he also learnt that the kidnapper was wearing red colour T
shirt. He further states that, he had, therefore, recollected the entire
episode which he had witnessed. He states that the father of
kidnapped boy had shown the photograph of the boy. After seeing
the photograph, he realized that the photograph was of the same boy
who had been seen by him along with the two boys who were riding
the scooty. He met Dr. Chandak and disclosed him about the event
which he had seen in the noon hours in front of the shop. He has
identified the accused to be the same boys who had been seen by
him while sitting in a shop and enjoying tea. After seeing the
photograph, he had also identified the boy who was sitting on the
scooty between the two pillion riders as the boy who was kidnapped.
This witness has also identified the accused in the test identification
parade which is conducted in the panchnama below Exh. 34.
CONF.1.2016
A suggestion given to him that both the accused covered
their faces by scarf at the time of the incident is denied by him. He
has stated that both of them used the scarf for covering their face
later on. The evidence of this witness is sought to be attacked on the
ground that he is also a planted witness. However, nothing is brought
on record to show that he has inimical terms with the accused or any
special reason as to why he should depose falsely against the
accused persons. We are, therefore, of the view that his evidence
also establishes that on the day of the incident at around 4 p.m. both
the accused had come on the spot, the accused no.1 had alighted in
front of his shop, the accused no.2 went to the other side of the road,
after sometime the accused no.2 and the deceased came on a
scooty, the accused no.1 joined them and went towards the
Danaganja area.
26] The next witness in this line is PW.17 Biharilal Sadhuram
Chhabriya. His evidence is at Exh. 67. This witness states that he
runs a grocery shop in the name and style of "M/s. Biharilal
Sadhuram Chhabariya". He states that he used to go to shop at
around 12 hours in the noon and return at around 4 p.m. for lunch.
He states that he was acquainted with Dr. Chandak. He further
CONF.1.2016
testifies that the watchman also used to sit at the entrance of the gate
of the building. He further states that as usual on 1.9.2014 at 4 p.m.
he returned to home for lunch on his Activa scooter. He states that
on the day of the incident since Ganesh festival was going on and a
carpet was laid upto entrance gate, he had parked his four-wheeler
on the road outside the campus. When he returned to his home, he
saw one boy standing behind his Honda City car parked in front of the
building of Guru Vandana Apartment on the road. He states that he
had suspicion that the boy would cause mischief to his vehicle. He
states that the boy was sitting on purple colour scooty behind his car.
He further states that there was red colour T shirt and black colour
jean pant on his person. He states the age of boy to be 20-22 years
old. He parked his Activa at the backside of his car abutting the
purple colour scooty of that suspected boy. He saw that the boy took
out the white colour handkerchief from his pant pocket and tied it on
his mouth. Thereafter he went towards his residence for lunch. After
lunch he came back after 10-15 minutes. At that time, the boy and
the vehicle were not present.
He states that at around 5.15 p.m. he received the
telephone call from his wife who informed him that Yug was
kidnapped by person wearing red colour T shirt having purple scooty.
CONF.1.2016
Thereafter he rushed home to take stock of the situation. At about 7
p.m. Dr. Chandak met him in the campus of building. The witness
told him that he had seen one boy wearing red colour T shirt with
purple colour scooty standing on the road. The police arrived at the
campus and he disclosed all facts to the police. This witness has
identified the accused no.2 in the dock. He has also identified the
accused no.2 in the identification parade held under panchnama Exh.
68.
His evidence is sought to be attacked on the ground that
he is an interested witness, inasmuch as he is a neighbour of Dr.
Chandak and there were occasional money transactions between him
and Dr. Chandak. However, merely because a witness is an
interested witness cannot be a ground to discard his testimony. The
evidence of such a witness is required to be scrutinized with greater
caution and can be relied on if it is found to be reliable, trustworthy
and cogent. We find that nothing damaging has come in the cross-
examination of this witness. Merely because there are money
transactions between the first informant and this witness cannot make
him unreliable. It is natural that the neighbourers might help each
other in the times of need. In any case, the presence of this witness
is corroborated by PW.31 Arun Meshram.
CONF.1.2016
27] The next witness on this point is PW.23 Rupali Kansare -
neighbour of accused no.1 Rajesh. She states that on 1.9.2014 at
around 4.30 p.m. she was washing the clothes in the courtyard of her
house. At that time, the accused Rajesh accompanied with one
friend came on his scooty bike. There was a minor boy of 5-6 years
sitting on the scooty in between them. The accused Rajesh was
driving the scooty and he gave dash to the wooden entrance gate of
the boundary wall of his house. She states that thereafter, therefore,
she paid attention and told him that if he drives the vehicle in such a
manner, it would cause hurt to minor boy sitting in between them on
scooty. She states that she had not seen the clothes of the boy
sitting on the scooty due to plants and trees in the courtyard. She
had asked the accused Rajesh as to who was the minor boy. He
disclosed that minor boy was the younger brother of his friend. The
accused Rajesh parked his scooty in the courtyard. Thereafter,
accused Rajesh took his motor bike and trio went away. She has
identified the friend of the accused Rajesh.
Her evidence is sought to be attacked on the ground that
she was pregnant and was required to take bed rest. She has been
thoroughly cross-examined on that ground. However, she has
withstood the cross-examination. She has stated that though she
CONF.1.2016
was asleep in the afternoon, she had woken up in the noon hours at
around 4.30 p.m. for washing clothes. It is also sought to be attacked
on the ground that she had admitted that activities going on in the
courtyard of the house of accused Rajesh were not visible from the
courtyard of her house. It is also sought to be attacked on the ground
that the identification parade of this witness is not conducted.
It could thus be seen that this witness is an immediate
neighbour of the accused Rajesh. On account of the vehicle giving a
dash to the gate, her attention being drawn and she seeing the
accused persons with the small boy is quite natural. However, her
identification parade is not conducted. As such, we find it difficult to
accept her testimony in so far as identification of the accused no.2 for
the first time in the dock. However, we find that her evidence
establishes that the accused no.1 Rajesh along with one another
person and one minor boy had come on a scooty. They parked the
scooty in courtyard and thereafter took his motor cycle and went
away.
28] The evidence of PW.9 Divya Chandel is at Exh. 47. The
witness is taking education in Adarsha Vidyalaya of village
Patansawangi. She states that the timing of her school was from 12
CONF.1.2016
noon to 5.15 p.m. She states that on the day of incident, i.e. 1.9.2014
she along with her friend Tanushri Keche were returning from their
school on their bicycle. While returning when they were passing
nearby a Pump House of the Itangoti Lake, they saw one motor bike
parked aside the road. They saw that three persons were sitting on
the motor bike which was in stationary condition aside the road. After
seeing them, the motor bike riders started the vehicle and started
proceeding ahead towards their side. The boy who was driving the
bike had worn the almond colour shirt and the pillion rider boy was
wearing the red colour half T shirt. There was one boy in between
both the riders and the boy appeared in sleeping condition. They saw
that the motorbike riders went towards the pathway (Pandhan)
abutting to the road. Thereafter, within 2-3 minutes, motor-bike riders
returned on the road and proceeded towards Patansawangi area.
She states that this happened at around 5.30 p.m.
She further states that after some days police came in
their village. They had shown the photograph of one boy. After
seeing the photograph, she recollected the events occurred on that
day and told the police that she had seen the boy accompanied with
two motor-bike riders on the road near Water Pump of lake.
Thereafter the police recorded her statement. The said witness has
CONF.1.2016
also identified both the accused in the identification parade conducted
vide panchnamas Exhs. 49 & 50. She has also identified the accused
in the dock and also the clothes which were worn by the accused and
the deceased.
The evidence of this witness is sought to be attacked on
the ground that it is impossible that in such a short point of time she
could see the accused and the deceased boy. However, it has come
in the cross-examination itself, that when she was returning home
from the school, at that time she saw the motor-bike riders when the
vehicle was in stationary condition on the other side of the road. It
could thus be seen that in the cross-examination of this witness it
has come on record that she had seen the accused when the motor-
bike was in a stationary condition. It has also further come in the
cross-examination so also in examination-in-chief that she had again
an opportunity to see the accused and the deceased while both of
them were returning to the road from Pandhan.
It is contended by defence Counsel that the evidence of
this witness cannot be relied, inasmuch as her friend Tanushri Keche
is not examined. By now it is a settled principle of law that it is not
necessary to examine each and every witness.
CONF.1.2016
The veracity of the evidence of this witness is also sought
to be attacked on the ground that she is also a planted witness.
From material placed on record, it appears that the school timings
and the timings of the accused coming there on the motor-cycle
appear to have coincided. As such, she having an opportunity to see
the accused while returning from the school is natural. Apart from
that, from the CDRs. to which we will be referring to in the later part of
the judgment, the presence of accused No.1 at Patansawangi at that
point of time is duly corroborated. As such, we find that it could be
safely concluded from the evidence of this witness that at around 5.30
p.m. she had seen the accused in the company of the deceased near
the pump house of Itangoti Lake.
29] PW.11 Namdeo Dhawale, whose evidence is at Exh. 52, is
an agricultural labourer. He states that on 1.9.2014 at around dusk
he was returning with his she-goats from the cart track (Pandhan).
There was a downward slope to the cart track. He saw one motor-
bike coming from the opposite side. There were two persons on the
motor-bike and one minor boy was sitting between them on the bike.
The motor-bike riders were of 20-22 years whereas the minor boy
sitting in between them was 8-10 years old. The minor boy was in
CONF.1.2016
sleeping condition as his head was seen tilted on his shoulder. He
states that on seeing the plight of the minor boy, he attempted to
proceed towards the motor-bike riders. But on seeing him, the motor-
bike rider took U-turn and went back towards the tar road and
vanished from the spot.
He further states that after 2-3 days the police arrived in
the village and had shown the photograph of the boy to the villagers.
He had seen the photograph and recollected the event which he had
seen on the pathway and as such, he disclosed all the facts to the
police. He states that the driver of the vehicle had worn almond
colour shirt. The minor boy was in school uniform of sky-blue shirt
and the pillion rider had worn red colour T shirt.
The identification parade of this witness has not been
conducted. In our considered view, it will not be safe to rely on the
identification of the accused by this witness for the first time.
However, we find that his evidence can be safely relied on to come to
a conclusion that he had seen two persons on a motor-cycle with a
minor boy. As a matter of fact, the evidence of PW.9 Divya Chandel
would stand corroborated by the testimony of this witness, inasmuch
as she also states that the motor-cycle went towards Pandhan but
immediately returned back.
CONF.1.2016
30] The last witness in this line is PW.10 Shriram Khadatkar,
whose evidence is at Exh. 52. The agricultural land of this witness is
located within the vicinity of Tandulwani village and is adjoining the
boundary of Babulkheda village. He states that in the month of
September he had engaged 12-14 women labourers for agricultural
operations in the field. He states that there is a tar road abutting his
land and the tar road as well as pathway are available for egress and
ingress to his land. The labourers are generally utilizing the pathway
for going to his field. He states that on the day of the incident, the
labourers had worked uptill 5.15 and 5.30 p.m. and thereafter they
had left the field and returned by the pathway. He had come on the
road and was waiting for motor-cycle of his son. Meanwhile, he saw
one motor-bike of black colour coming from Patansawangi village.
He had seen two boys of 20-22 years old on the motor-bike. There
was one boy sitting on the motor-bike in between both the
youngsters. The motor-bike went ahead upto 100-150 ft. on the road
and they stopped the vehicle after crossing the bridge. The boy who
was driving the motor-cycle stepped down from the vehicle. The
pillion-rider caught hold of the boy sitting in between them. They
parked the vehicle and the driver lifted the boy on his shoulder and
proceeded towards the culvert. Meanwhile, his son arrived with
CONF.1.2016
motor-bike and, therefore, he went away towards his village on his
vehicle.
He states that thereafter after 2-3 days his servant
informed him about the incident of murder of one boy in the culvert.
As such, he recollected the incident of motor-bike. On the following
day, police arrived in the village and shown the photograph of the boy
in the culvert. This witness has apart from identifying the accused in
the dock has also identified them in the test identification parade
below Exhs. 53 & 54. He has also identified the photograph of the
boy who was accompanying the accused.
His evidence is attacked on the ground of certain
omissions. Apart from the said omissions not being put to
Investigating Officer, they are of minor nature. The location of the
spot from where the body was recovered is near the agricultural field
of this witness. As such, his presence is natural. He is a rustic
villager and has no grudge against any of the accused. We find that
there is nothing to disbelieve the version given by this witness.
31] The evidence of these witnesses is sought to be attacked
on the ground that in most of the identification parades the witnesses
have identified the accused at serial No.4. The identification parades
CONF.1.2016
are conducted by PW.45 Mohan Tikale, Executive Magistrate. The
perusal of his evidence would reveal that though after the
identification by the particular witness was over, on every occasion he
had asked both the accused as to whether they were willing to
change their clothes or the place in the row, however, both the
accused declined to change the clothes or the place at serial no.4
where they were standing in the rows. It appears that for the reasons
best known to them, though an ample opportunity was given to the
accused to change their places or change the clothes, they had
declined to do so. In any case, nothing damaging in the cross-
examination of this witness, who is a responsible Government Officer,
has come on record. It will be relevant to refer to the following
observations of the Hon'ble Supreme Court in paragraph no. 21 in the
case of Subhash Krishnan .vs. State of Goa reported in (2012) 8
SCC 365 which read as under :-
"21. The appellant was identified by at least two of
the witnesses PW-14 and 33 in the TIP held on
03.11.2003 at the behest of PW-30 the Special Judicial
Magistrate. Though it was contended that the appellants
raised an objection to the effect that they were already
shown by the police officials to the said witnesses, in order
to rule out any hazard on that score, the accused himself
suggested that he be permitted to change his shirt which
PW-30 allowed and, thereafter, he subjected himself to the
TIP in which he was identified by PWs-14 and 33 without
CONF.1.2016
any hesitation. As pointed out by learned counsel for the
State with regard to the holding of the TIP nothing was
elicited in the cross examination in order to hold that the
whole of the TIP was not conducted in the manner it was
to be held and that the identification of the appellant was
not proved in the manner known to law. PW-14 also
stated in her evidence that she had seen the appellant in
the village earlier though she did not know his name.
Therefore, when such identification of the appellant was
proved to the satisfaction of the Court, there was nothing
more to be proved about the manner in which it was held
or to find any flaw in the holding of the TIP.
As such, we find that the contentions raised in that behalf are without
substance.
32] The evidence of these witnesses is sought to be attacked
on the ground that all of them are chance witnesses and planted
witnesses. As already discussed by us hereinabove, the presence of
these witnesses at the spots where they have seen the accused in
the company of the deceased is natural. In this respect, we may
gainfully refer to the observations of Their Lordships of the Apex
Court in paragraph no. 8 in the case of Thangaiya .vs. State of T.N.
reported in (2005) 9 SCC 650, which read as under :-
"8. Coming to the plea of the accused that PW-3
was 'chance witness' who has not explained how he
happened to be at the alleged place of occurrence, it has
CONF.1.2016
to be noted that the said witness was an independent
witness. There was not even a suggestion to the witness
that he had any animosity towards the accused. In a
murder trial by describing the independent witnesses as
'chance witnesses' it cannot be implied thereby that their
evidence is suspicious and their presence at the scene
doubtful. Murders are not committed with previous notice
to witnesses; soliciting their presence. If murder is
committed in a dwelling house, the inmates of the house
are natural witnesses. If murder is committed in a street,
only passersby will be witnesses. Their evidence cannot
be brushed aside or viewed with suspicion on the ground
that they are mere 'chance witnesses'. The expression
'chance witness' is borrowed from countries where every
man's home is considered his castle and everyone must
have an explanation for his presence elsewhere or in
another man's castle. It is quite unsuitable an expression
in a country where people are less formal and more
casual, at any rate in the matter explaining their presence.
Therefore, there is no substance in the plea that PW-3's
evidence which is clear and cogent is to be discarded.
THE ELECTRONIC EVIDENCE OF C.C.T.V. FOOTAGE
33] The prosecution also relies on the CCTV footage
recovered from the petrol pump wherein the accused had refueled the
vehicle. PW.35 Shrikant Sharma is a Manager of Sundar Auto
Centre. His evidence is below Exh. 144. He states that he was
working as a Manager of the petrol pump located within the vicinity of
Bhokara, Koradi Road, Nagpur. He states that Bharat Petroleum
Corporation had given the contract to the Kores India Limited for
CONF.1.2016
installation of CCTV Cameras at the premises of their petrol pump.
Accordingly, on 4.6.2012 in all eight CCTV cameras were installed in
the premises of their petrol pump. The representative of the Kores
India Limited - Shri Hemant Thakre installed the CCTV cameras at
their petrol pump. He states that eight numbers of CCTV cameras,
NVR and monitor, etc. were supplied at their petrol pump by the
Kores India Limited. The understanding was given to him that all the
cameras were to be functioning 24 x 7 hours and in case of any
malfunctioning in the system, they had to lodge the complaint to the
Bharat Petroleum through the Broma Software. He has stated that till
date there was no occasion for him to lodge complaint about the
malfunctioning of the CCTV cameras and its system installed at their
petrol pump. He further states that the CCTV cameras installed at
their petrol pump would capture images continuously for 20 days and
thereafter it would delete the earlier recording for capturing the new
images of the events occurred at the petrol pump. He states that the
date and time were set in the system by the representative of the
Kores India Limited and the timings set in the cameras were
displaying 15-20 minutes less than the actual timings of the events
captured in the camera. He states that the NVR and Monitor of the
CCTV system were installed in the room of the owner and he used to
CONF.1.2016
open and close the cabin of owner daily. The keys of cabin of owner
were always with him.
He states that on 4.9.2014 in the noon hours, he was on
duty at petrol pump. At around 2.30 p.m. police of Lakadganj police
station came to the petrol pump. They disclosed him that they
wanted to make enquiry in relation to the incident occurred on
1.9.2014. The police personnel gave him one letter for showing the
footage of the CCTV cameras captured on 1.9.2014. Thereafter, he
took the police personnel to the cabin of his owner and shown the
footage of the CCTV cameras captured on 1.9.2014. He states that it
was reflected from CCTV that one person wearing almond colour shirt
arrived at the petrol pump with pillion rider with red colour T shirt and
black colour jean pant. There was one minor boy with school uniform
seen sitting in between both the motor-bike riders.
He further states that on 5.9.2014 once again the police
personnel and others came to his petrol pump at around 11 a.m.
They met him and gave the introduction of the panchas as well as
one representative of Kores India Limited Shri Rathod and one Dr.
Chandak, who were accompanied with them. The person, namely,
Rathod gave him the letter that he wanted to remove hard-disc, etc.
of the CCTV cameras fitted at the petrol pump. Thereafter, Rathod
CONF.1.2016
verified the CCTV footage captured on 1.9.2014. While screening the
footage, this witness, panchas, police personnel and Dr. Chandak
were present in the cabin. After seeing the footage, Dr. Chandak
recognised the motor-bike rider being the employee of his clinic. He
also identified his minor son Yug who was sitting in between both the
riders. Dr. Chandak disclosed the name of the boy who was driving
the motor-bike as Rajesh employee of his clinic. Thereafter, one
blank C.D. was procured and Shri Rathod copied down the footage of
the CCTV in the blank C.D. captured on 1.9.2014 during the period
from 4.32 p.m. to 4.40 pm. He again verified the images copied in the
C.D. and got confirmed that the footage was the same which was
captured by the CCTV cameras. Thereafter, the personnel of Kores
India Limited Shri Rathod removed the hard-disc from NVR and gave
it to police in presence of panchas. He states that he can identify the
footage of the CCTV cameras which were copied down in the blank
C.D. in presence of Shri Rathod. It could be seen from his evidence
that the footage which was copied has been played in the Court and
this witness has identified the same to be from the CCTV cameras.
He further states that he has issued the requisite certificate of the
CCTV footage prescribed under Section 65-B of the Indian Evidence
Act.
CONF.1.2016
His testimony is sought to be attacked on the ground that
he does not have any special knowledge about the software and
hardware of the computer system. It is further sought to be attacked
on the ground that he has taken assistance of his accountant Nitesh
Tiwari on 4.9.2014 when the police arrived. The witness was a
Manager of the petrol pump. As such, a workable knowledge of the
system was sufficient for him. From the evidence of this witness, it is
clear that he was a person occupying a responsible official position in
relation to the device from which the footage of CCTV was recovered.
His evidence clearly shows that it was his responsibility to open and
close the cabin of owner wherein the NVR and Monitor of the CCTV
system were installed and the keys of the said cabin were always with
him. A certificate as required under Section 65-B has been given by
him which is exhibited as Exh. 146. Not only that, but his evidence is
duly corroborated by PW.30 Hitesh Rathod and PW.48 Pratik Rathi.
As such, we find that the contention as raised by the defence Counsel
is without substance.
34] PW.30 Hitesh Rathod is an officer in the Kores India
Limited, Nagpur dealing in the maintenance and installations of the
CCTV cameras. He had taken over from Shri Hemant Thakre. He
CONF.1.2016
states that from the official record he came to know that eight CCTV
cameras were installed on the petrol pump of Bharat Petroleum,
namely, Sundar Auto Center at Bhokara, Nagpur. The purchase
order and the invoices which are electronic generated documents are
exhibited in his evidence at Exhs. 123 & 124. He states that the
system of CCTV cameras installed at the premises of Sundar Auto
Centre includes the device known as Network Video Recorder
comprising hard-disc, LCD screen monitor and router with cameras in
all eight in number. He further states that the capacity of the memory
of the hard-disc was 2000 GB and it was of Seagate Company make.
There were provisions in the CCTV cameras for automatic recording
of events of 24 hours. He states that the CCTV cameras will record
the movements for about 20 days approximately and used to operate
for 24 hours. He further states that on continuous recording for about
20 days and on finishing the space in the memory of hard-disc, there
was a system to delete the earlier recording carried on the very first
day and to capture the current movements occurring at that time. He
further states that the software known as Broma was developed by
the Bharat Petroleum Company for lodging the complaints about the
maintenance of CCTV cameras installed at their petrol pump. He
further states that his office did not receive any complaints about the
CONF.1.2016
CCTV cameras installed at the Sundar Auto Center since its
installations.
He further states that his office had received the
authorization letter dated 5.9.2014 from the Bharat Petroleum
Corporation with direction to remove the hard disc from CCTV
cameras and NVR installed in the premises of Sundar Auto Center
and deliver the same to Lakadganj Police Station. The same is
exhibited at Exh. 125. Thereafter, his superior Shri Surshe issued
him authorization letter in his favour and instructed him to visit the
retail outlet of the Bharat Petroleum Corporation Limited, namely,
Sundar Auto Center and remove hard-disc and do the required
related work and provide assistance to the Lakadganj police for
further investigation. He further states that thereafter he went to the
Police Station and from there along with the police party and panchas
and Dr. Chandak came to the petrol pump. Thereafter, he inspected
the CCTV footage recorded in the eight cameras. During inspection,
they screened the CCTV footage recorded on 1.9.2014 between 4.30
to 4.40 p.m. CCTV footage reflected that two boys arrived at the
petrol pump on black colour bike to fill up the fuel in their vehicle bike.
There was one minor boy seen sitting in between them on the bike.
The boy who was driving the motor-bike had covered his mouth with
CONF.1.2016
the scarf, whereas they had noticed the face of the boy who was
pillion rider on the bike. They had observed the face of the minor boy
who was sitting between them on the bike. He further states that the
first informant divulged that the minor boy sitting in between both the
riders was his son Yug and the boy who was driving the bike was his
employee Rajesh Daware. He further states that the boy who was
driving the motor-bike had worn the almond colour shirt and Khaki
colour full pant and school uniform was on the person of minor boy,
i.e. sky-blue colour T shirt. The red colour T-shirt and black colour
jean was on the person of pillion rider. He further states that it was
transpired that all these relevant movements came to be captured by
third camera installed on the southern wall of the office facing towards
south direction.
He states that thereafter the police personnel Shri Nikam
had given him the instructions to take copies in the form of C.D. of the
relevant footage captured by the CCTV cameras of the particular
time. The police procured the blank CD and gave it to him. He
verified the same CD as to whether it was blank or not. He verified
that the CD brought by the police was blank at that time. Thereafter,
by using the software he converted the relevant CCTV footage in AVI
format meant for extension of the video format. Thereafter he
CONF.1.2016
inserted the blank CD in the writer of the computer and took the
copies of the relevant CCTV footage recorded in between 4.30 to
4.40 p.m. of 1.9.2014 by the third camera installed in the premises.
He states that thereafter he checked and verified the CD and it was
found that the CCTV footage were properly copied in the CD.
Therefore, he delivered the CD to the police for further process.
He states that thereafter he was informed by the Police
Officer that he was in need of the hard-disc of the concerned CCTV
footage. Therefore, he again verified the movements captured by the
CCTV cameras. It was revealed that all the relevant recordings were
intact. He got confirmed that the entire CCTV system was working in
proper condition and thereafter he shut down the NVR system and
removed the hard-disc from the NVR. Thereafter, he delivered the
custody of the hard-disc to the police for further process. The police
packed and sealed the CD and hard-disc in presence of himself, both
panchas and Dr. Chandak. He states that thereafter he returned to
his office, prepared the requisite certificate which was required to be
issued under Section 65-B of the Indian Evidence Act. Seizure
panchanama is at Exh. 127. A certificate as required under Section
65-B is below Exh. 128 and affidavit and its accompaniments are
below Exh. 129 & 129/1.
CONF.1.2016
His evidence is sought to be attacked on the ground that
the CCTV was installed by Shri Hemant Thakare and as such, it was
only Shri Hemant Thakare who was authorized person to carry out
the exercise. We find that the contention in that regard is without
substance. The witness has clearly stated that Shri Hemant Thakare
was his predecessor and he had taken over the work from Shri
Hemant Thakare and he was the only person available for installation
and maintenance of CCTVs. He has also deposed that he was given
authorization letter by the competent officer.
35] The evidence of these two witnesses is duly corroborated
by the evidence of panch witness PW. 48 Pratik Rathi, who has acted
as a panch to seizure panchnama at Exh. 121.
36] The next witness on this aspect is PW.47 Smt. Chitra
Kamat, whose evidence is below Exh. 222. In her evidence, she
states that she was the Head of the Department of Cyber Forensic
Laboratory and there are six officers attached to her department
being Scientific Officers. She states that the officers used to check
and verify the exhibits of muddemal received from the concerned
department to carry out examination, analyse the same and express
CONF.1.2016
their opinion. She states that on 25.9.2014 her office received one
sealed parcel of the hard-disc and four sealed envelopes referred by
the police of Lakadganj Police Station, Nagpur under a property of
Crime No. 287/14. She states that the said material was received by
receiving clerk Mahesh Khanawekar, who placed the material before
us. She states that thereafter she called her Scientific Officer Shri
Yuvraj Deshmukh, who opened the articles for verification in her
presence. Shri Deshmukh took the entries of all the articles in the
register maintained and preserved in the office for the said purpose.
He gave the Department Case Number as CY-738/14 to all the
articles. Thereafter Shri Deshmukh opened the wrapped paper
envelopes, four in numbers in her presence. The first envelope
contained the photographs of the vehicle which were attested
reference photographs. The said photograph was marked as Exh. 2.
In another wrapped paper envelope there was one photograph of the
person and it was attested reference photograph and marked as Exh.
3. The third wrapped paper envelope was opened containing another
attested reference photograph of another person and it was marked
as Exh. 4. The fourth wrapped envelope was also opened and it was
an attested reference photograph of the boy and it was marked as
Exh. 5. The Scientific Officer Shri Deshmukh once again packed and
CONF.1.2016
sealed all these articles in paper envelopes separately in her
presence. She states that these articles were already marked as
Exhs. B to E by the police of Lakadganj Police Station. She states
that thereafter on 20.10.2014 she assigned the articles to Scientific
Officer Shri Salunke for test analysis in the forensic laboratory. She
submits that after carrying out the analysis in the prescribed form,
Shri Salunke prepared the report on 22.11.2014. She states that
thereafter she handed over the articles as well as C.A. reports to P.I.
Nikam of Lakadganj Police Station. Nothing damaging has come in
her cross-examination.
37] It will also be relevant to refer to the evidence of PW.49
Naresh Gumgaonkar. The witness is a police photographer and had
taken the photographs of the accused persons who were detained in
Ambazari and Sadar Police Stations and also the Honda motor-cycle
which was used in the crime for the reference purpose for sending it
to the forensic laboratory. The reference photographs of the Hondo
Motorbike as well as both the accused are exhibited in his evidence
below Exh. Nos. 166, 166/1, 167 & 168.
38] The last and most important witness on this aspect is
CONF.1.2016
PW.38 Mr. Ajay Salunke. The evidence of this witness is below Exh.
158. He has stated in his evidence that he used to analyse and
examine the hard-discs, C.D., Pen-drive, memory cards, mobile
phone, etc. which were referred to him from the various Police
Stations from Maharashtra. He states that on 20.10.2014 the articles
were allotted to him for the forensic analysis. He opened the four
sealed envelopes containing the sheets of photographs which were
marked by his office as Exhs. 2 to 5. He states that there were four
stages for analysis of articles. The first stage was acquiring,
thereafter verifying, hashing and file signatures. He further states
that at the time of analysis of hard-disc Exh. 1/1, it was not detected
by the tools available in Cyber Forensic Division of his laboratory and,
therefore, he had carried out analysis on the C.D. Exh. 1/2. He had
adopted the same process and by acquiring he created the images of
C.D. Exh. 1/2. He verified the images with the original C.D. Exh. 1/2
and generated the hash value of the same. He carried out the
process of file signatures. Thereafter he arrived at the conclusion
that there were no errors in the file signatures. He states that during
analysis of C.D., six video files were detected in the extension which
were of type "video file (.avi)". He further states that there were in all
six files in the C.D. and all the six files were continuous and not edited
CONF.1.2016
at all. He further states that he concluded the same after its
examination by framing and timing method. He further states that he
carried out the second test to ascertain that the files were not edited
by hue saturation view method. All the six files were found not edited
at any point of time and same were continuous one. He prepared the
frame (still photos) of the video pictures recorded in the C.D. Exh. 1/2.
He states that thereafter he selected some frames (still
photos) prepared by him for analysis after image processing and its
enhancement. He had compared the frame with the photographs
referred by the police vide Exhs. 2 to 5 for matching purposes. After
analysis of all these photographs of C.D. Exh. 1/2 with the
photographs referred by the police, he issued report about the same
to the police. The report below Exh. 160 is exhibited in his evidence.
The scanned copies of the reference photographs are exhibited at
Exhs. 161 to 165 in his evidence. He has also issued a certificate
under Section 65-B of the Indian Evidence Act.
His evidence is sought to be attacked on the ground that
he has only analysed the C.Ds. and not the hard-disc. However, he
has categorically stated in his evidence that there would have been a
risk about the integrity and problems in data accessing and data loss
if he had analysed the hard-disc. It is further to be noted from the
CONF.1.2016
evidence of this witness that he has carried out the analysis on the
basis of face identification software programme. In his cross-
examination itself, it has come that the face identification software
training was given to him for work of analysis being Scientific Officer.
It could thus be seen from the evidence of this witness that on a
scientific basis it has been found that the images of the accused and
the deceased and the motor-cycle at the petrol pump tally with the
reference photographs of the accused, the deceased and the motor-
cycle.
39] It will be relevant to refer to the observations of the Apex
Court in the case of Anvar P.V. .vs. P.K. Basheer and others
reported in (2014) 10 Supreme Court Cases 473 which read thus:-
"13. In the Statement of Objects and Reasons to
the IT Act, it is stated thus:
"New communication systems and digital
technology have made drastic changes in the way
we live. A revolution is occurring in the way
people transact business."
In fact, there is a revolution in the way the
evidence is produced before the court. Properly
guided, it makes the systems function faster and
more effective. The guidance relevant to the issue
before us is reflected in the statutory provisions
CONF.1.2016
extracted above.
14. Any documentary evidence by way of an
electronic record under the Evidence Act, in view
of Sections 59 and 65A, can be proved only in
accordance with the procedure prescribed under
Section 65B. Section 65B deals with the
admissibility of the electronic record. The purpose
of these provisions is to sanctify secondary
evidence in electronic form, generated by a
computer. It may be noted that the Section starts
with a non obstante clause. Thus, notwithstanding
anything contained in the Evidence Act, any
information contained in an electronic record
which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by
a computer shall be deemed to be a document
only if the conditions mentioned under sub-
Section (2) are satisfied, without further proof or
production of the original. The very admissibility of
such a document, i.e., electronic record which is
called as computer output, depends on the
satisfaction of the four conditions under Section
65B(2). Following are the specified conditions
under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the
information should have been produced by the
computer during the period over which the same
was regularly used to store or process information
for the purpose of any activity regularly carried on
over that period by the person having lawful
control over the use of that computer;
(ii) The information of the kind contained in
electronic record or of the kind from which the
information is derived was regularly fed into the
computer in the ordinary course of the said
activity;
CONF.1.2016
(iii) During the material part of the said period, the
computer was operating properly and that even if
it was not operating properly for some time, the
break or breaks had not affected either the record
or the accuracy of its contents; and
(iv) The information contained in the record
should be a reproduction or derivation from the
information fed into the computer in the ordinary
course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it
is desired to give a statement in any proceedings
pertaining to an electronic record, it is permissible
provided the following conditions are satisfied:
(a) There must be a certificate which identifies the
electronic record containing the statement;
(b) The certificate must describe the manner in
which the electronic record was produced;
(c) The certificate must furnish the particulars of
the device involved in the production of that
record;
(d) The certificate must deal with the applicable
conditions mentioned under Section 65B(2) of the
Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in relation
to the operation of the relevant device.
16. It is further clarified that the person need only
to state in the certificate that the same is to the
best of his knowledge and belief. Most
importantly, such a certificate must accompany
the electronic record like computer printout,
CONF.1.2016
Compact Disc (CD), Video Compact Disc (VCD),
pen drive, etc., pertaining to which a statement is
sought to be given in evidence, when the same is
produced in evidence. All these safeguards are
taken to ensure the source and authenticity, which
are the two hallmarks pertaining to electronic
record sought to be used as evidence. Electronic
records being more susceptible to tampering,
alteration, transposition, excision, etc. without
such safeguards, the whole trial based on proof of
electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced
in terms of Section 65B of the Evidence Act,
would the question arise as to the genuineness
thereof and in that situation, resort can be made
to Section 45A - opinion of examiner of electronic
evidence."
40] It may be seen that in the present case all the
requirements under Section 65-B of the Indian Evidence Act have
been complied with. It has come in the evidence of PW.35 Shrikant
the network video recorder comprising hard disc and LCD screen
monitor of the CCTV system were installed in the room of the owner.
It has also come in his evidence that he used to open and close the
cabin of the owner and the keys of the cabin of the owner were
always remained with him. It could thus be seen that the said witness
had complete control over the said system. PW.35 Shrikant was
working as a Manager of the Petrol Pump and the said system was
CONF.1.2016
put under his charge. As such he was a person occupying a
responsible official position in relation to the operation of the said
system. The material placed on record would reveal that the
computer output containing the information was produced by the
computer during the period over which the computer was used
regularly to store or process information for the purposes of security.
It has also been established from the evidence of PW.35 Shrikant and
PW.30 Hitesh that the said activity was regularly carried on over that
period by PW.35 Shrikant who was keeping control over the use of
the computer. The evidence of PW.30 Hitesh duly establishes this.
The requirement regarding the information of the kind contained in
electronic record or of the kind from which the information so
contained is derived, was regularly fed into the computer in the
ordinary course of the said activity, is duly proved in the evidence of
PW.35 Shrikant and PW.30 Hitesh. The requirement that during the
material part of the said period, the computer was operating properly
has been established again in the evidence of PW.35 Shrikant and
PW.30 Hitesh. The requirement that the information contained in the
record should be a reproduction or derivation from the information fed
into the computer in the ordinary course of the said activity is also
duly proved in the evidence of PW.35 Shrikant and PW.30 Hitesh.
CONF.1.2016
The certificates under Section 65-B as has been observed by the
Apex Court in para 15, have also been duly issued by PW35 Shrikant
and PW30 Hitesh. The evidence regarding copying that information
on the CD from the hard disc and regarding the seizure of the hard
disc and the copy of the CD, has come in the evidence of PW35
Shrikant, PW30 Hitesh and PW48 Pratik Rathi. The evidence of
PW47 Smt. Chitra Kamat would show that her office had received
the material in sealed parcel. She had authorised PW38 Ajay
Salunke to carry out the analysis. PW38 has carried out the analysis
in the scientific manner. It will be relevant to note from the evidence
of PW38 Ajay that he had generated the hash value of the CD. It will
be relevant to refer to the information regarding file verification
downloaded from Wikipedia:
"Hash-based verification ensures that a file has
not been corrupted by comparing the file's hash
value to a previously calculated value. If these
values match, the file is presumed to be
unmodified due to the nature of hash functions,
hash collisions may result in false positives, but
the likelihood of collisions is often negligible with
random corruption."
He has categorically stated in his evidence that all the files were
found not edited at any point of time and the same were continuous
CONF.1.2016
one. We are, therefore, of the considered view that the scientific
evidence of CCTV footage of 1.9.2014 between 4.30 and 4.40 p.m.
would clearly reveal that both the accused along the deceased had
come to the petrol pump on a motorcycle seized at the instance of
accused no.1 for refueling the vehicle. As has come in the evidence
of PW35 Shrikant, the timing of the computer was set 15 to 20
minutes less than the actual timing, as such the timing of the accused
coming to the petrol pump would be around 4.45 to 4.55 or 4.50 to 5
p.m.
41] We are, therefore, of the considered view that from the
evidence placed on record that the prosecution has established
beyond reasonable doubts:
(i) from the evidence of PW.31 Arun corroborated by
PW.17 Biharilal that the accused no.2 had picked the deceased from
the place near his house at Lakadganj;
(ii) from the evidence of PW2 Rajan Tiwari that the
accused nos. 1 and 2 at around 4 p.m. had come on Scooty, accused
no.1 got down in front of his shop, thereafter accused no.2 went by
wrong side to the other side of the road, after sometime he came
along with the deceased and thereafter both the deceased and the
CONF.1.2016
accused went towards Danaganja area;
(iii) from the evidence of PW23 Rupali that at around 4.30
p.m. that the accused no.1 Rajesh along with his friend and one
minor boy had come to his house which is around 6 kms. away, gave
dash to the gate, exchanged the Scooty with the motorcycle and
three of them went ahead;
(iv) from the evidence of PW35 Shrikant, PW30 Hitesh,
PW47 Smt. Chitra, PW48 Pratik and PW38 Ajay Salunke by scientific
evidence, it is established that the accused along with the deceased
had come to Sunder Auto Centre of Bharat Petroleum on a
motorcycle seized at the instance of accused no.1 at around 4.45 to 5
p.m.;
(v) from the evidence of PW9 Divya Deepak Singh
Chandel that the accused along with the deceased had travelled
nearby Pump House of the Itangoti Lake which is approximately 20
kms. away and they were seen at around 5.15 to 5.30 when PW9
Divya was returning from her school. Her evidence is also
corroborated by PW11 Namdeo;
(vi) from the evidence of PW10 Shriram that between 5.30
and 6 p.m. (dusk), the accused along with the deceased were found
near the spot from where the body of the deceased came to be
CONF.1.2016
recovered.
RECOVERY OF THE DEAD BODY
42] PW 28 Mahesh Fulwani is a panch witness on a
memorandum under Section 27 of the Indian Evidence Act. His
evidence is below Exh.105. He states that on 2.9.2014 he was
passing from Lakadganj Police Station. He saw the huge crowd in
front of the Police Station. He saw that his friends were in the mob.
He stopped near the Lakadganj Police Station to take stock of the
situation. He further states that while discussing with his friend, the
police called him inside the Police Station and took him to the room of
P.I. Jaiswal. He states that P.I. Jaiswal told him that the accused in
the case of kidnapping of boy Yug was intending to say something
and, therefore, he requested him as to whether he is ready to act as a
panch. He further states that he replied in the affirmative. One
another panch namely Girish Malpani was to act as the other panch.
It has further come in his evidence that the Police
personnel brought one person in the chamber of P.I. Jaiswal. The
person disclosed his name as Rajesh Daware. He had also disclosed
his personal details about his age, address etc. which were reduced
into writing by the Police on the document. He has identified the
CONF.1.2016
person who disclosed his name as Rajesh, to be the accused no.1.
The accused Rajesh further made a statement that he and his
accomplice committed murder of the boy Yug and his dead body was
buried by them in a place which he was ready to show. The Police
prepared panchanama about the statement made by the accused in
his presence. He had also verified the contents of the panchanama.
It was correctly recorded as per the events occurred in the Police
Station. Thereafter he had put his signature on it. The accused
Rajesh, another panch Malpani and P.I. Jaiswal put their signatures
on it. The panchanama is exhibited below Exh.106.
PW. 28 Mahesh further states that the Police party, as well
as the panchas started proceeding outside the Police Station. In the
meanwhile one four wheeler arrived at the entrance gate of the Police
Station. P.I. Jaiswal got down from the vehicle and went near Dr.
Chandak, who was sitting in a car. He states that he was acquainted
with Dr. Chandak since beginning. After some conversation, P.I.
Jaiswal came back into police vehicle and they started proceeding as
per the directions of the accused Rajesh. The car of Dr. Chandak
was following the police vehicle. Thereafter the accused led the
panchas, the police party upto vicinity of Patansawangi village.
Thereafter he asked to take left turn towards the village Babulkheda.
CONF.1.2016
After they travelled for some time on the road, the accused asked to
stop the vehicle near bridge. All the occupants of the vehicle got
down on the road. Accused Rajesh started proceeding towards other
end of the bridge on the road. Both panchas and the Police were
following him. The accused Rajesh pointed out the spot from the
road which was located under the bridge. There was a pathway for
going beneath the bridge. Thereafter accused went down towards
the spot under the bridge. The panchas also proceeded behind
accused Rajesh. There were near about seven to eight channels of
water in the rivulet but there was no water in it. The accused pointed
out the place in the first channel of the rivulet. They verified the spot
which was shown by the accused Rajesh. There was one dead body
of minor boy covered with leaves and sand particles. He had also
seen one big boulder kept on the head of the dead body. He had
seen the big ants moving on the corpse of the deceased. Thereafter
P.I. Jaiswal asked the panchas to remain at the spot of incident. After
about ½ hour , the services of the photographer were procured.
Arrangement for Ambulance for carrying the dead body for post
mortem was also made. The Police Constable removed the boulder
from the head of the deceased so also the leaves and sand from the
dead body.
CONF.1.2016
Thereafter P.I. Jaiswal called Dr. Chandak at the spot
under the bridge. Dr. Chandak was kept waiting on the road near the
bridge. Dr. Chandak came down at the spot beneath the bridge. Dr.
Chandak identified the dead body of the boy being the dead body of
his son Yug. The Photographer had also taken some photographs of
the scene of occurrence. Police thereafter asked Dr. Chandak to
return to the vehicle. The Police personnel collected the boulder,
sand particles and sand soaked with blood etc. from the spot. The
police kept these article in polythene bag, container etc. and asked
the panchas to put their signatures on its labels. Again panchanama
was drawn. The dead body was removed from the place and taken in
the Ambulance for further process. The panchanama is exhibited in
his evidence below Exh.106-A. The seizure memo is exhibited below
Exh.107. From the evidence of PW.50 I.O. Jaiswal, so also the
recovery panchnama (Exh. 106-A), it could be seen that the I.O. had
used bright torches at the time of the said recovery.
The photographs taken while carrying out the said
panchanama are exhibited in the evidence of PW18 Shirish
Varhadpande- Police Photographer.
43] The perusal of the memorandum of the accused under
CONF.1.2016
Section 27 of the Indian Evidence Act would reveal that it is
exculpatory in nature. However, only such part of the information
which distinctly relates to discovery would be admissible in evidence.
As such only that part of the statement of memorandum which gives
information with regard to the discovery of the place where the dead
body was concealed would be admissible. On the information given
by the accused, the panchas and the Police party were led to place
where the dead body of the deceased was concealed by the accused.
It could be seen that the body was concealed by covering it with
boulder and sand. The place was below the bridge which had eight
compartments of 30 ft. in length and 6 ft. in width. After going to the
bridge from the road, one was required to come downward. It could
thus be seen that the information which was given by the accused
no.1 which led to the discovery of the dead body was distinctly and
exclusively within his knowledge.
The evidence of Dr. Mahesh Fulwani is sought to be
attacked on the ground that he is Medical Practitioner and as such
he is deposing falsely at the instance of the first informant. We find
that merely because the witness belonged to the profession of the
complainant, cannot be a ground to discard his testimony. As a
matter of fact, in the examination-in-chief itself, the witness had
CONF.1.2016
admitted that he was acquainted with Dr. Chandak since beginning.
Nothing damaging has come in the cross-examination of this witness.
We are, therefore, of the considered view that the prosecution has
established beyond reasonable doubt that the discovery and recovery
of the dead body of the deceased was on the basis of the information
given in a statement made by the accused under Section 27 of the
Evidence Act.
44] It will be relevant to refer to the following observation of the
Apex Court in the case of Paramasivam .vs. State reported in
(2015) 13 Supreme Court Cases 300 which read thus :
"32. This Court in State of H.P. v. Jeet Singh
opined that when an object is discovered from an
isolated place pointed out by the accused, the
same would be admissible in evidence.
33. We have noticed the confessional statement
of the appellants, on the basis of which the
discovery of material evidence took place."
THE TIME GAP BETWEEN THE DECEASED LAST SEEN IN THE
COMPANY OF THE ACCUSED AND THE DEATH OCCURRING IS
SO SHORT THAT LEADS TO NO OTHER CONCLUSION THAN
THE GUILT OF THE ACCUSED :
45] The evidence of PW.27 Dr. Avinash Waghmode who was
one of the Doctors, who had carried out the post mortem, would
CONF.1.2016
reveal that the time of the death of the deceased was between 36 to
48 hours prior to the time on which the post mortem was conducted.
The post mortem was conducted on 3.9.2014 at 12 noon. As such
the period during which the deceased Yug must have died would
come between 12 noon of 1.9.2014 till 12 midnight of 1.9.2014 and
2.9.2014.
It will be appropriate to refer to the following observations
of the Hon'ble Supreme Court in the case of Mahavir Singh .vs.
State of Haryana reported in (2014) 6 Supreme Court Cases 716
which read thus:
"12. Undoubtedly, it is a settled legal proposition
that the last seen theory comes into play only in a
case where the time-gap between the point of time
when the accused and the deceased were seen
alive and when the deceased was found dead (sic
is small). Since the gap is very small there may
not be any possibility that any person other than
the accused may be the author of the crime. In the
instant case, if we examine the medical report
minutely, it becomes evident that the deceased
Suraj Mal had been murdered one week prior to
the post-mortem. Thus, it becomes evident that he
had been killed in a very proximity of time when the
deceased was seen alive with the appellant and
Jagbir Singh, co accused."
It could thus be seen that Their Lordships have held that the last
seen theory would come into play only in a case where the time-gap
between the point of time when the accused and the deceased were
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seen alive and when the deceased was found dead is so small that
there may not be any possibility that any person other than the
accused may be the author of the crime.
46] In the present case we have come to the conclusion that
the accused were in the company of the deceased between 4 p.m. to
around dusk i.e. roughly 6 p.m. Undisputedly the deceased was
alive till 4 p.m. As such the death of the deceased had occurred
between the period i.e. 4 p.m. and 12 p.m. As already discussed
hereinabove we have come to the conclusion that between 4 p.m.
and 6 p.m. the deceased was in the company of the accused. The
dead body of the deceased is discovered at the instance of the
accused No.1 on the next day. We, therefore, find that the time-gap
between the deceased seen together in the company of the accused
and the deceased being found dead is so short that the conclusion
can be drawn, that it is the present appellants who are the author of
the death of the deceased.
47] There is another aspect to it. It is proved beyond
reasonable doubt that the deceased was in the company of the
accused between 4 p.m. and 6 p.m. The death of the deceased
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occurred during that period or immediately thereafter. As such in
view of the provisions of Section 106 what has happened during that
period or thereafter is exclusively within the knowledge of the
accused and it was for the accused to explain the same. It will be
relevant to refer to the following observations of Their Lordships of
the Apex Court in the case of Sunder @ Sundararajan .vs. State
reported in 2013 LawSuit (SC) 105 in paragraphs 26 and 27, which
read thus :
"26. Having given our thoughtful consideration to the
submission advanced at the hands of the learned counsel
for the appellant, we are of the view, that the instant
submission is wholly misplaced and fallacious. Insofar as
the instant aspect of the matter is concerned, reference
may be made to the judgment rendered by this Court in
Sucha Singh's case (supra), wherein it was held as
under:-
"21. We are mindful of what is frequently
happening during these days. Persons are
kidnapped in the sight of others and are forcibly
taken out of the sight of all others and later the
kidnapped are killed. If a legal principle is to be
laid down that for the murder of such kidnapped
there should necessarily be independent evidence
apart from the circumstances enumerated above,
we would be providing a safe jurisprudence for
protecting such criminal activities. India cannot
now afford to lay down any such legal principle
insulating the marauders of their activities of killing
kidnapped innocents outside the ken of others."
A perusal of the aforesaid determination would reveal,
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that having proved the factum of kidnapping, the
inference of the consequential murder of the kidnapped
person, is liable to be presumed. We are one with the
aforesaid conclusion. The logic for the aforesaid
inference is simple. Once the person concerned has
been shown as having been kidnapped, the onus would
shift on the kidnapper to establish how and when the
kidnapped individual came to be released from his
custody. In the absence of any such proof produced by
the kidnapper, it would be natural to infer/presume, that
the kidnapped person continued in the kidnapper's
custody, till he was eliminated. The instant conclusion
would also emerge from Section 106 of the Indian
Evidence Act, 1872 which is being extracted hereunder :
"106 - Burden of proving fact especially within
knowledge--.When any fact is especially within
the knowledge of any person, the burden of
proving that fact is upon him.
Illustrations
(a) When a person does an act with some
intention other than that which the character and
circumstances of the act suggest, the burden of
proving that intention is upon him.
(b) A is charged with travelling on a railway without
a ticket. The burden of proving that he had a ticket
is on him."
27. Since in the facts and circumstances of this case, it
has been duly established, that Suresh had been
kidnapped by the accused-appellant; the accused-
appellant has not been able to produce any material on
the record of this case to show the release of Suresh
from his custody. Section 106 of the Indian Evidence Act,
1872 places the onus on him. In the absence of any such
material produced by the accused-appellant, it has to be
CONF.1.2016
accepted, that the custody of Suresh had remained with
the accused-appellant, till he was murdered. The
motive/reason for the accused-appellant, for taking the
extreme step was, that ransom as demanded by him,
had not been paid. We are therefore, satisfied, that in the
facts and circumstances of the present case, there is
sufficient evidence on the record of this case, on the
basis whereof even the factum of murder of Suresh at
the hands of the accused-appellant stands established."
48] The facts in the present case are almost identical. In the
present case also, it has been duly established that the accused had
kidnapped the deceased Yug. As such it was upon the
accused/appellants to produce any material on record to show the
release of the deceased from their custody. In view of the provisions
of Section 106 of the Indian Evidence Act, in the absence of any such
material produced by the accused, it will be presumed that the
custody of the deceased Yug remained with the accused till he was
murdered.
THE RECOVERY OF THE OTHER INCRIMINATING MATERIAL ON
THE MEMORANDUM UNDER SECTION 27
49] PW21 Ajay is a panch on memorandum of the accused
Rajesh leading to the recovery of ATM card, handkerchief, shirt-pant.
CONF.1.2016
His evidence is at Exh.74. He states that when he was coming out of
the saw mill, the police personnel requested him to act a panch. He
expressed his inclination and went inside the Police Station. He
states that another panch Persanani was already present there. The
Police personnel brought one boy and asked his name. He states
that he disclosed his name as Rajesh Daware. He confessed that he
wanted to produce the articles which were used by him for
commission of crime including the clothes. He disclosed that he had
concealed all these articles in his house. A memorandum
panchanama below Exh.75 is exhibited in his evidence. He states
that thereafter he and another panch and police party proceeded
towards Gulshan Nagar. The accused led panchas to his house. He
asked to stop the vehicle in front of his house. They alighted from the
vehicle. The accused Rajesh started proceeding ahead and they all
followed him. The mother of the accused Rajesh was present in the
house. Rajesh entered inside his house, followed by the panch and
the Police. There was one bedstead on the left side of the room in
his house. . He produced one ATM card, handkerchief, shirt, pant
which were wrapped in the clothes kept in the box of the cot. He also
produced pair of sleeper which were under the cot. Then Rajesh
pointed out two vehicles which were parked in front of his house. The
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Honda motorbike was of black colour. The footrest of the Honda
motorbike was smeared with sand particles. The police removed the
footrest of the motorbike and seized it in plastic packet. The pair of
the sleeper was also stained with sand particles. The Police also
seized both Honda motorbike as well as the Scooty. The recovery
panchanama was exhibited below Exh.75-1. The perusal of the
panchanama would reveal that all these articles were sealed and
taken in custody in presence of the panchas.
The testimony of this witness is sought to be challenged
on the ground that he is a planted witness. We find that such a
contention is de hors of any substance. Nothing damaging has come
in the cross-examination of this witness.
50] The ownership of the motorbike is also challenged by the
accused no.1. However, the prosecution has examined PW.22
Prashant Jaikumar who was working in Lifeline Oriental Tradelink
India Ltd. He was acquainted with the mother of the accused no.1
since she was also working as a Field Officer in the same company.
He has stated in his evidence that Smt. Bhumeshwary, the mother
of the accused wanted to purchase TVS Scooty as well as motorbike
of Honda company. However, since she was not in a position to get
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the finance, the said vehicles were purchased in his name. However,
the repayment of the loan was made by the mother of the accused. It
is to be noted that all these circumstances revealed in the evidence of
PW.22 Prashant have been put to accused no.1 in his examination
under Section 313 of the Cr.P.C. In his answer, he has admitted all
this. There is a clear admission that the two vehicles purchased in
the name of PW.22 Prashant were in the custody of the accused no.1
Rajesh and his family.
In view of the judgment of the Apex Court in the case of
Ashok Debbarama @ Achak Debbarama which we have
reproduced in the other part of the judgment though no conviction can
solely be made on the basis of statement under Section 313 of the
Code of Criminal Procedure, such a statement can certainly be taken
aid of to lend credence to the evidence led by the prosecution. As
such we find that the prosecution has proved beyond reasonable
doubt that the motorbike which was used in the crime and the number
of which has duly come on record in the evidence of CCTV footage,
was in the custody of the present accused no.1 Rajesh.
51] The defence has also examined Smt. Bhumeshwary as
DW1, the mother of accused no.1, in order to show that the recovery
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on memorandum under Section 27 of the Evidence Act was not true.
She has stated in her evidence that after the incident, on 3.9.2014
the police personnel of Yashodhara Nagar Police Station came to her
house and informed that all the family members should go to the safe
place as there was a murder case filed against her son Rajesh.
Thereafter all the family members put lock to their house and went to
the house of her relative. She further states that they stayed at the
house of her sister-in-law for entire day. She states that thereafter on
4.9.2014 one Prashant Jaikumar phoned her and disclosed that two-
three persons from Lakadganj Police Station had arrived at her house
and they were calling her. She states that thereafter she, her
husband and younger son returned to home. She states that
Policeman took the vehicle Scooty and that she and the policeman
came to the Police Station on Scooty. Her husband and Prashant
Jaikumar also visited the Police Station on another motorbike. She
states that she was kept in the police custody for long time. In the
meantime the Police had taken the keys of her house and returned it
after some time. She states that on 6.9.2014, P.I. Jaiswal had taken
her to her house and they asked her to open the lock of her house.
When she entered in the house, she saw all the articles in the house
were seen scattered in condition. She states that the Police asked
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her to open the Almira in the house. There were four pen-drives of
her son Rajesh kept in the Almira, which were taken by the Police.
However, in her cross-examination her testimony is
shattered. She was not even in a position to tell the name of her
sister-in-law in whose house they took shelter in the night of 3.9.2014.
She volunteered that she had stayed at the place of distant relative.
She admitted that she had not filed any complaint about her wrongful
detention by the Police in the Police Station since 4.9.2014 to
9.9.2014. She has admitted that her statement was recorded on
8.9.2014 and that she has not informed to the police in her
statement about her wrongful detention. In that view of the matter,
we do not find that her testimony would be of any assistance.
52] PW.26 Sunil Kothari is a panch on memorandum of the
accused Arvind under Section 27, which led to the recovery of T-shirt
of the deceased. The perusal of his evidence would reveal that when
the said witness was proceeding towards his office and passing from
the premises of Lakadganj Police Station, a police personnel
requested him to act as a panch witness in the crime. Thereafter he
was taken inside the Polcie Station in the chamber of P.I. Jaiswal.
Another panch was also present in the Police Station. He states that
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thereafter Police brought one boy in the chamber of P.I. Jaiswal who
disclosed his name as Arvind Singh. He confessed about the crime
and disclosed that after commission of the crime they took out the
blue colour T-shirt of the deceased from his person and it was thrown
at one place in the Nullah and he has shown his readiness to point
out that place. The memorandum panchanama is exhibited in his
evidence below Exh.83. His evidence would further show that
thereafter accused Arvind Singh directed themselves towards rivulet
located in the vicinity of village Lonkhairi. Thereafter he alighted from
the police vehicle and he started proceeded towards rivulet. He
pointed out the place in the rivulet where he had thrown the blue
colour school T-shirt of the deceased. Thereafter the sweepers
started searching the clothes of the deceased and after 45 to 60
minutes, the sweeper fished out blue colour T-shirt from the water of
rivulet and shown to the Police. Thereafter the said T-shirt was
sealed. The said T-shirt has been identified by this witness and the
other witnesses including PW1 Dr. Chandak, to be the T-shirt which
was worn by the deceased. The said witness is also an independent
witness. Apart from a vague contention that he is also a planted
witness, nothing has been pointed out as to why his testimony should
be disbelieved.
CONF.1.2016
53] Another ground of attack is that if T-shirt was wet, then
how it could have been wrapped in a paper. It will be relevant to
refer to the evidence of PW.50 P.I. Jaiswal wherein he has clearly
stated that the blue colour T-shirt was in wet condition, after removing
the water by twisting it, the T-shirt was made to dry and thereafter
seized in presence of the panchas under panchanama. There is no
cross-examination of the Investigating Officer on this aspect. We,
therefore, find that the contention in that behalf is without substance.
54] We are of the considered view that on the basis of distinct
information given by accused no.2 Arvind on a memorandum under
Section 27, on the basis of his direction a discovery of T-shirt of the
deceased which was worn by him, when he was kidnapped is made.
It is to be noted that the spot wherein the T-shirt was sought to be
concealed, is around 5 kms. away from the place at which the dead
body of the deceased was found.
55] PW.29 Harsh Firodiya is a panch on the memorandum of
the accused below Exh.111, on the basis of which the clothes used
by accused No.2 at the time of commission of the crime and the
ornaments ring (Bali) came to be seized. The T-shirt which is
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recovered under the seizure panchanama below Exh.111-A has a
label of "Status-quo" make which was the T-shirt given by PW1 Dr.
Chandak to his employees.
It is sought to be contended on behalf of the accused that
the said recovery is also planted and farcical. It is submitted that in
support of the recovery being farcical, accused no.2 has examined
three defence witnesses. We have scrutinised the evidence of the
defence witnesses. No doubt that merely because the said witnesses
are defence witnesses, cannot be a ground for discarding their
testimony. Their evidence is also required to be scrutinised in the
same manner as that of prosecution witnesses.
56] DW1 Haribhau is the landlord of the house which was
taken on rent by Abhilash Singh - the father of accused no.2. He
states that Abhilash left the rented premises on 3.9.2014 after coming
to know that his son was arrested in a kidnapping and murder case.
He states that between 3.9.2014 and 5.10.2014, he used to visit the
premises for watering the plants and plucking the flowers from the
courtyard of the house. He has further stated that he had seen the
lock put on the doors of the house of Abhilash Singh. However, the
perusal of his cross-examination would reveal that he is residing at
CONF.1.2016
Motha Indora which on his own admission is 2½ kms. away from the
rented premises. It is, therefore, difficult to believe that he was
coming every day for watering the plants at such a long distance.
His statement is recorded on 26.10.2014. His cross-examination
would show that the evidence is full of omissions and contradictions.
As such it will not be safe to rely on his testimony.
57]
Next witness examined by accused no.2 in support of this
theory is Smt. Kusum Chandel- DW.2. She also states that after the
arrest of Arvind, the tenant Abhilash Singh and his family members
left the premises and started residing elsewhere. She has stated that
she was not aware abut the visit of the police personnel to the house
of Abhilash Singh. However, she has admitted in her evidence that
Abhilash Singh has vacated the premises and taken his articles after
about 1 ½ months of the incident. She has also admitted that every
Tuesday there was a weekly bazar at Bhim chowk and she used to
personally attend the bazar for purchasing the articles. She has
further stated that she used to go on every Tuesday to the market
between 5 and 6 p.m. Though she has stated that she does not know
that on 9.9.2014 in the evening the Police accompanied with Arvind
Singh visited his house located in front of her house, she has
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admitted that she had gone to bazar at that time and, therefore, she
was not aware about the same. She has further admitted that the
bazar was away from her house and she used to attend the bazar by
bus which would take nearabout half an hour. She has further
admitted that she returned to home on that day at about 8 p.m. She
has further admitted that she is not well-versed with the timings. The
perusal of the panchanama which is below Exh.111-A would reveal
that the said proceeding commenced at 19.20 hours and concluded
at 20.55 hours. Incidentally it is to be noted that 9.9.2014 happens to
be the Tuesday which was a market day. As such the possibility of
the seizure being carried out while said witness had gone to the
market cannot be ruled out.
58] The third witness examined in support of this proposition is
Abhilash Singh-DW.4, the father of accused no.2. He has stated in
his evidence that though the arrest memo bears his signature but he
does not know about its contents. He has further stated that he has
put the lock to his house and left the premises since 3.9.2014 and
returned to home on 5.10.2014. His cross-examination would show
that his evidence is full of contradictions and omissions. As such,
possibility of this witness deposing falsely to save his son also cannot
be ruled out.
CONF.1.2016
59] As against this there is no reason as to why PW.29 Harsh,
who is an independent witness, would depose falsely. We find that
memorandum below Exh.111 and the seizure panchanama below
Exh.111/A are duly proved by the prosecution. As such the
circumstances of recovery on the information given by accused no.2
of the "Status-quo" red colour T-shirt given by PW1 Dr. Chandak to
accused no.1 Rajesh and ear ring (Bali) is duly proved. The said Bali
has been identified by PW1 Dr. Chandak and the T-shirt has been
identified by various witnesses to be the same which was worn by
accused no.2 at the time of commission of the crime.
60] It is vehemently argued on behalf of the accused that the
discoveries are farcical in nature inasmuch as the log-book entries
and the location of the mobile of the investigating officer does not
match the time at which the recoveries were made by the
investigating officer. Insofar as the contention regarding the mobile
phone is concerned, it has come in the evidence of the investigating
officer that he was using two mobile phones. The CDRs are only
pertaining to one mobile number. In any case, this has not been put
to the investigating officer in his cross-examination. Had these
circumstances been put to him in the cross-examination, he could
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have very well explained the same. In any case merely because the
two mobile numbers are in the name of the investigating officer, it is
not necessary that he must be using both the mobiles. As such we
find that not much would turn on the same.
61] Insofar as the entries in the log-book are concerned, firstly
it is to be noted that the said document is not exhibited. It will be
appropriate to refer to para 17 of the judgment of the Apex Court in
the case of U. Sree .vs. U. Srinivas reported in (2013) 2 Supreme
Court Cases 114 which reads thus:-
"17. Recently, in H. Siddiqui (Dead) by Lrs. v. A.
Ramalingam13, while dealing with Section 65 of
the Evidence Act, this Court opined though the
said provision permits the parties to adduce
secondary evidence, yet such a course is subject
to a large number of limitations.
"12......In a case where the original documents are
not produced at any time, nor has any factual
foundation been laid for giving secondary
evidence, it is not permissible for the court to allow
a party to adduce secondary evidence. Thus,
secondary evidence relating to the contents of a
document is inadmissible, until the non-production
of the original is accounted for, so as to bring it
within one or other of the cases provided for in the
section. The secondary evidence must by
authenticated by foundational evidence that the
alleged is in fact a true copy of the original."
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It has been further held that mere admission of a
document in evidence does not amount to its
proof. Therefore, it is the obligation of the Court to
decide the question of admissibility of a document
in secondary evidence before making
endorsement thereon."
It will also be appropriate to refer to para 35 of the
judgment of the Apex Court in the case of Malay Kumar Ganguly
.vs. Dr. Sukumar Mukherjee and others reported
ig in (2009) 9
Supreme Court Cases 221 which reads thus:-
"37. It is true that ordinarily if a party to an action
does not object to a document being taken on
record and the same is marked as an exhibit, he is
estopped and precluded from questioning the
admissibility thereof at a later stage. It is,
however, trite that a document becomes
inadmissible in evidence unless the author thereof
is examined; the contents thereof cannot be held
to have been proved unless he is examined and
subjected to cross-examination in a court of law.
The document which is otherwise inadmissible
cannot be taken in evidence only because no
objection to the admissibility thereof was taken."
In the present case it will be seen that an application under
Section 233(3) read with Section 311 of the Criminal Procedure Code
was filed on behalf of accused No.2 below Exh. 302 for certain
directions. One of the directions was for direction to produce the log
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book of Jeep No. MH-31/CV/0108 and MH-31/AG/9877 for the period
between 1.9.2014 to 30.9.2014. On the said application, the notice
was issued by the learned Sessions Judge on 12.8.2015. The said
application was opposed by the learned Public Prosecutor vide reply
dated 7.9.2015 below Exh. 305. However, the learned trial Judge
vide order dated 10.9.2015 directed the certified copies of the log
book to be produced. Accordingly, the same were produced on
5.10.2015 vide Pursis below Exh. 307. The learned Judge
subsequently, upon the application of the accused No.2 below Exh.
314 without giving an opportunity to the prosecution has directed the
said log book to be exhibited. The said document has not been
proved in the evidence of any of the witnesses. In view of the
aforesaid judgments of the Apex Court, we find that the approach
adopted by the learned trial Judge was erroneous. As such the
contents of the said log-book cannot be held to have been proved
unless the author was examined and subjected to cross-examination.
In any case, the perusal of the said log-book and particularly the
entries with regard to 8th and 9th September, 2014 would rather
substantiate the recoveries, rather than falsify the same. In that view
of the matter, the contention in that regard is also without substance.
CONF.1.2016
THE SCIENTIFIC EVIDENCE
62] The Chemical Analyser's report which is at Exh.272/1,
272/8 would reveal that the blood detected on the sand which was
seized from the spot, the jean pant seized from the accused no.1 and
the handkerchief seized from him are containing blood stains. The
report below Exh.272/2 would also show that the sand on the pair of
slipper and the footrest of the motorcycle seized at the instance of
accused no.1 also tallies with the sample of the sand which was
seized from the spot. It will be relevant to refer to the opinion of the
Scientific Expert of DNA Profiling evidence for establishing identity:-
"1. DNA profiles obtained from blood detected on
exhibit 12 and blood stain 1 on exhibit 13 of
Bn/3368/14 are identical and from one and the
same source of unknown male origin.
3. DNA profiles obtained from blood stain 2 on
exhibit 13 of Bn/3368/14 and exhibit 1 of
Bn3070/14 are identical and from one and the
same source of male origin and matched with
DNA profile of exhibit 2, gauze piece soaked with
blood (Bn/3070/14) and exhibit 2, viscera
(DNAn/560/14) of Yug Mukesh Chandak."
63] It could thus be seen that the prosecution has also
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established that the jean pant and the handkerchief seized at the
instance of the accused no.1 Rajesh matches with the DNA profile of
deceased Yug. The prosecution has also proved that the slipper and
the footrest of the motorcycle seized from the accused Rajesh were
containing sand particles which matched the sand particles seized as
a sample from the spot of incident. It could thus be seen that the
prosecution has also established beyond reasonable doubt that the
incriminating material which was seized at the instance of accused
No.1 Rajesh on a memorandum under Section 27 matches with the
DNA profile of the deceased Yug, so also the sand seized from the
spot where the dead body was concealed.
MOTIVE
64] From the material placed on record, it appears that it is the
case of the prosecution that there was two-fold motive in commission
of the crime, one to take revenge against Dr. Chandak who had
accosted him for taking more money from the patients and secondly
to demand ransom after kidnapping the child.
65] Insofar as the first motive is concerned, PW1 Dr. Chandak
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himself has stated that father of his patient Manish Machale had
informed him that the accused used to charge more than the
instructed by him for treatment on two occasions. He disclosed about
the mischief of accused no.1 Rajesh on telephone. Therefore, he
requested the complainant Machale to visit his clinic for verification on
the given date. Machale did not attend the clinic on the given date.
Therefore, he called accused no.1 Rajesh and asked him for what
reason he charged Rs.100/- more from the patient Machale. The
accused did not accept his mischief and claimed innocence. He
asked to confront with the patient Machale on the following day.
Thereafter on the next day patient Machale came to his clinic and
accused no.1 Rajesh did not attend the duty on that day and later on
he stopped attending the duty at his clinic. He has stated that since
the accused had left his employment without giving intimation to me,
he could not collect the red colour T-shirt given to him as an uniform
of his clinic. He states that since then the uniform of the clinic i.e.
read colour T-shirt was with accused Rajesh only. The evidence of
PW1 in this regard is corroborated by the testimony of PW6 Naresh
Machale.
66] Insofar as the second motive is concerned , it will be
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relevant to refer to the evidence of PW19 Sonam Meshram. She
states in her evidence that she was in relationship with the accused
no.1. She further states that prior to 6-7 months, she along with the
accused, her friend Shreya Manohare, her boy friend Sandeep Katre
and another friend Sonal Kamble, her boy friend Darshan, her friend
Ashiwini and two sisters had been to picnic in Tata-Sumo jeep to
Ramtek-Khindsi. She further states that in the evening they went to
village Sawari at the house of grandmother of accused Rajesh. She
further states that she and accused Rajesh always used to go for
roaming on his black colour motorbike having registration No. MH-
49-0570. Occasionally her friend Shreya Manohare also used to
come with them. She states that once they were going to Adasa
temple via Koradi road. Accused Rajesh had taken her on his
motorbike from the road of village Patansawangi to Lonkhairi for
going to Adasa temple. However, when they went towards village
Chanpa, the villagers told that it was not the road for going to Adasa
and, therefore, they returned back upto one rivulet. Accused Rajesh
stopped the bike and went under the bridge for answering nature's
call. While returning, accused Rajesh took the left turn on the road
and proceeded towards the bridge where he stopped the bike for
nature's call.
CONF.1.2016
She states that in the month of February 2014, the
accused told her that he joined the clinic of Dr. Chandak and he was
getting Rs.8000/- to Rs.10,000/- per month from Dr. Chandak's clinic.
He also told her that he was getting an extra income of Rs.100/- to
Rs.200/- from the patients. She further states that accused Rajesh
gifted her one cell-phone for her use and he was paying Rs.100/-, for
her pocket expenses on his every visit. She has further stated that on
some occasions his friend accused Arvind Singh also accompanied
him while visiting her hostel. She has stated that accused Rajesh
had given introduction of accused Arvind as his friend. She has also
identified accused no.2 Arvind in the Court.
She has further deposed that on 15.8.12014 there was a
holiday to her college and,therefore, both of them had come for
roaming to Ramtek and they halted in one lodge at Ramtek. That
time madam Dr. Chandak had called him but he did not attend the
call. On being asked why he was not attending Dr. Chandak's call,
accused Rajesh told her that he had already left the job of Dr.
Chandak as he was paying meager salary of Rs.3000/- and asked to
do lot of works for him. He had hurled abuses to Dr. Chandak and
uttered that he would see and teach him lesson (Usko To Mai Dekh
Lunga and Sabak Sikhaunga). At that time accused Rajesh proposed
CONF.1.2016
her for marriage. She asked Rajesh that when he had already left the
employment, how he would bear the expenditure of Rs. 2 lacs to be
incurred for her training of Nursing Course. Rajesh told her not to
worry about the money as he was going to do one big work and
thereafter he will earn huge money. He had also disclosed that he
would purchase four wheeler, set up a beer-bar as well as construct
own house. On being asked about his big task, he told her that he
was planning to abduct the son of rich person.
In her cross-examination, it has been brought on record
that though she cannot tell the name of bridge or Nullah where
accused had parked his motorbike for nature's call, there was one
village located on the hillock nearby the spot of bridge and its name
was something like Babulkheda. Incidentally it is to be noted that the
bridge beneath which the dead body of the deceased was concealed
is the bridge at Babulkheda. Though this witness has been
thoroughly cross-examined, nothing damaging has come on record.
67] PW.8 is Sandip Katre. The evidence of this witness is at
Exh.44. He was pursuing B.C.C.A degree and was also employed as
Computer Operator in Sahara India Co-operative Society, Kamptee
Road, Nagpur. He states that he was acquainted with Sonam
CONF.1.2016
Meshram as she was the friend of his girl friend Shreya Manohare-
PW19. He was also acquainted with Rajesh Daware since he was
the boy friend of Sonam Meshram. He has corroborated the version
given by PW19 Sonam regarding picnic to Navegaon Bandh, so also
he and the accused Rajesh going for roaming along with their girl
friends. He has given the number of the mobile of the accused as
9595663961. He has stated that accused Rajesh had an aspiration
to become a reach person as early as possible and he was in hurry to
be an affluent person.
He has also given narration regarding the accused Rajesh
asking him to make inquiry as to when and in what manner his
employer carries the cash from the office as there was always huge
cash in his office. He has also narrated the plans of accused Rajesh
for looting the amount from the employer of this witness. He has also
narrated that an attempt made by the accused Rajesh, his friend
Arvind and other two friends failed. He has further stated that one
day accused Rajesh, accused Arvind and other two friends were
present at the Pili river. He disclosed that there was new plan in his
mind as he did not get help to materialize his earlier plan. He
explained that he was intending to kidnap a boy for ransom whose
father was an affluent person. He has also stated to this witness that
CONF.1.2016
he would get huge amount after the plan of kidnapping. On being
inquired as to who was the boy to be kidnapped, accused Rajesh told
that he would tell the name subsequently. He further disclosed that
kidnapped boy would be kept at his house under the surveillance of
his younger brother Ankush. He states that after hearing all this, the
friends of the accused viz. Vikas and Shubham opposed to such a
plan. He states that on 30.08.2014 he received call from accused on
his Cell Number 9595517745 seeking assistance to do the task of
kidnapping on 1.9.2014. Since he refused to do so, accused hurled
abuses on him. He further states that on his coming to know about
Dr. Chandak's son being kidnapped, he informed about the same to
Dr. Chandak. In spite of thorough cross-examination, nothing
damaging has come on record.
68] It could thus be seen that the prosecution has proved that
accused Rajesh was annoyed since he was accosted on account of
taking more money from the patients of Dr. Chandak. It could also be
seen from the evidence of PW19 Sonam Meshram that the accused
was also annoyed since Dr. Chandak was giving him a meager salary
of Rs.3000/- and asked to do a lot of work for him. He had also told
her that he would see and teach him lesson. The prosecution has
CONF.1.2016
also proved that the accused had planned to kidnap a son of wealthy
person for ransom. The evidence of PW8 Sandip Katre fully
establishes that the accused no.1 not only intended to kidnap a son of
wealthy person but had also earlier made criminal plans to loot the
amount of the employer of the said witness while the employer would
return from his office.
TELEPHONE CALLS AND CALL DETAIL REPORTS
69] The main attack on behalf of the defence is that the mobile
numbers which are alleged to have been used by the accused are
not in the name of the accused and the prosecution has failed to
establish as to how the accused have come in possession of the said
SIM cards which are not in their name.
The handset along with the SIM cards have been seized
from the accused on a seizure panchanama below Exhs.38 and 39
which are duly proved in the evidence of PW4.
70] Accused no.1 in his statement under Section 313 of
Cr.P.C. has been put question no. 146 with regard to the evidence of
PW8 Sandeep Katre that it has come in the evidence of this witness
CONF.1.2016
that at the relevant time the said accused was using the mobile phone
in his custody with cell No. 9595663961. He has admitted the same
to be true. A similar question has been put at question no.230 with
regard to the evidence of PW14 Pranay, again the accused has
admitted the same to be true. A similar question at Sr. no. 387 has
been put with regard to the evidence of PW24 Dharmendra Yadav,
again he has admitted the same to be true.
71] The prosecution has examined PW39 Suresh Pande
whose evidence is at Exh.170. He states that from 2007 he came to
Nagpur for doing the rituals in the temple of Lord Hanuman, located
at Mankapur, Nagpur. He further states that in the year 2009 there
was an election in the Nagpur City. Therefore, his one disciple asked
him to prepare his voter identity card, which he accordingly prepared.
He states that he was acquainted with the father of accused no.2
since he was his devotee. He disclosed to him that he wanted to
purchase SIM card for his cell phone but he had no requisite
documents for purchasing the same. He states that thereafter he had
given him his voter identity card. Both went to the shop known as "
J.S. Electricals and Electronics and purchased a SIM card having
number as 9545967084. He states that though it was purchased in
CONF.1.2016
his name, it was for the use of Abhilashchandra Singh , the father of
accused no.2. Nothing damaging has also come in the evidence of
this witness.
72] PW.44 is Narendra Bagde. He is an Assistant Professor in
P.W.S. Arts and Commerce College, Nagpur. He has stated that in
the month of June, 2014, accused no.2 Arvind Singh submitted an
application for his admission to B.Com 2 nd Year course. The
application form of the accused Arvind Singh is exhibited in his
evidence at Exh.195. It is pertinent to note that the telephone number
given in the said application of the accused no.2 is 9545967084. A
question is put to this accused in his statement under Section 313 of
Cr.P.C. with regard to the evidence of PW44 Narendra Bagde
regarding his admission in the P.W.S. Arts and Commerce College,
Nagpur. He has admitted the same to be true. As such it may be
seen that on his own showing while seeking admission in the College,
accused no.2 has given his telephone number as 9545967084.
73] No doubt that the conviction solely on the basis of
statement under Section 313 would not be sustainable. However, it
would be relevant to refer to the judgment of the Hon'ble Apex Court
CONF.1.2016
in the case of Ashok Debbarama @ Achak Debbarama .vs. State
of Tripura reported in AIR 2014 SC (Supp) 1434 have considered
the legal position with regard to purpose of statement made u/s.313
of the Code of Criminal Procedure. It is observed thus :
"21. We are of the view that, under Section 313
statement, if the accused admits that, from the evidence
of various witnesses, four persons sustained severe bullet
injuries by the firing by the accused and his associates,
that admission of guilt in Section 313 statement cannot be
brushed aside. This Court in State of Maharashtra v.
Sukhdev Singh and another (1992) 3 SCC 700 : (AIR
1992 SC 2100) held that since no oath is administered to
the accused, the statement made by the accused under
Section 313 CrPC will not be evidence stricto sensu and
the accused, of course, shall not render himself liable to
punishment merely on the basis of answers given while
he was being examined under Section 313 CrPC. But,
Sub-section (4) says that the answers given by the
accused in response to his examination under Section
313 CrPC can be taken into consideration in such an
inquiry or trial. This Court in Hate Singh Bhagat Singh
(AIR 1953 SC 468) (supra) held that the answers given by
the accused under Section 313 examination can be used
for proving his guilt as much as the evidence given by the
prosecution witness. In Narain Singh v. State of Punjab
(1963) 3 SCR 678, this Court held that when the accused
confesses to the commission of the offence with which he
is charged, the Court may rely upon the confession and
proceed to convict him.
22. This Court in Mohan Singh v. Prem Singh and
another (2002) 10 SCC 236 : (AIR 2002 SC 3582) held
that the statement made in defence by accused under
Section 313 CrPC can certainly be taken aid of to lend
CONF.1.2016
credence to the evidence led by the prosecution, but only
a part of such statement under Section 313 CrPC cannot
be made the sole basis of his conviction. In this
connection, reference may also be made to the judgment
of this Court in Devender Kumar Singla v. Baldev Krishan
Singla (2005) 9 SCC 15 : (AIR 2004 SC 3084) and Bishnu
Prasad Sinha and another v. State of Assam (2007) 11
SCC 467. The above-mentioned decisions would indicate
that the statement of the accused under Section 313 CrPC
for the admission of his guilt or confession as such cannot
be made the sole basis for finding the accused guilty, the
reason being he is not making the statement on oath, but
all the same the confession or admission of guilt can be
taken as a piece of evidence since the same lends
credence to the evidence led by the prosecution."
74] It could thus be seen that Their Lordships of the Apex
Court have held that though no conviction solely on the basis of
statement u/s.313 of the Code of Criminal Procedure can be made,
however, the statement made by the accused u/s.313 of the Code of
Criminal Procedure can certainly be taken aid of to lend credence to
the evidence led by the prosecution. In view of this, we find that the
circumstance that accused no.1 was using cell number 9595663961
and accused no.2 was using cell number 9545967084 at the relevant
time can very well be used to give credence to prosecution case.
75] From the evidence of PW.32 Vicky Shah, it would reveal
that when juvenile-in-conflict with law Ankush was apprehended, a
CONF.1.2016
mobile of Micromax Company and three SIM cards came to be
seized. One of the SIM card was bearing number 7745855431. From
the evidence of PW46 Dattaram Angre, it would reveal that said SIM
card was in the name of the mother of accused no.1 Rajesh and
juvenile-in-conflict with law Ankush, namely Bhumeshwari Daware.
76] In this factual background, we will consider material in
support of this circumstance. It will be appropriate to refer to the
judgment of the Apex Court in the case of Mohd. Arif @ Ashfaq .vs.
State (NCT of Delhi) reported in
(2011) 13 Supreme Court Cases
621, which is a case pertaining to Red Fort attack. Their Lordships
observed in paragraph 60 thus :
"60. It has come in the evidence that the active mobile
phone has two components i.e. the mobile instrument
and the SIM card. Every mobile instrument has a unique
identification number, namely, instrument manufactured
equipment identity (for short "IMEI number"). Such SIM
card could be provided by the service providers either
with cash card or post-paid card to the subscriber and
once this SIM card is activated the number is generated
which is commonly known as mobile number. The mobile
service is operated through a main server computer
called mobile switching centre which handles and records
each and every movement of an active mobile phone like
day and time of the call, duration of the call, calling and
the called number, location of the subscriber during active
call and the unique IMEI number of the instrument used
CONF.1.2016
by the subscriber during an active call. This mobile
switching centre manages all this through various sub-
systems or sub-stations and finally with the help of
telephone towers. These towers are actually base
transreceiver stations also known as BTS. Such BTS
covers a set of cells each of them identified by a unique
cell ID. A mobile continuously selects a cell and
exchanges data and signalling traffic with the
corresponding BTC. Therefore, through a cell ID the
location of the active mobile instrument can be
approximated."
77]
We may also gainfully refer to the observations of the
reported
Apex Court in the case of Gajraj .vs. State (NCT of Delhi)
in (2011) 10 Supreme Court Cases 675. Their Lordships observed
in paragraph 16 thus :
"16. The evidence produced by the prosecution is based
on one irrefutable fact, namely, every mobile handset has
an exclusive IMEI number. No two mobile handsets have
the same IMEI number. And every time a mobile handset
is used for making a call, besides recording the number
of the caller as well as the person called, the IMEI
numbers of the handsets used are also recorded by the
service provider. The aforesaid factual position has to be
kept in mind while examining the prosecution evidence."
From the aforesaid judgments of the Apex Court, it would be clear
that every mobile handset has an exclusive IMEI number. No two
mobile handsets have the same IMEI number and every time a
CONF.1.2016
mobile handset is used for making a call, besides recording the
number of the caller as well as the person called, the IMEI numbers
of the handsets used are also recorded by the service provider. It is
to be noted that the mobile service is operated through a main server
computer called mobile switching centre which handles and records
each and every movement of an active mobile phone like day and
time of the call, duration of the call, calling and the called number,
location of the subscriber during active call and the unique IMEI
number of the instrument used by subscriber during an active call.
This mobile switching centre manages all this through various sub-
systems or sub-stations and finally with the help of telephone towers.
These towers are actually base transreceiver stations also known as
BTS. A mobile continuously selects a cell and exchanges data and
signalling traffic with the corresponding BTC. It could thus be seen
that the Apex Court has held that through a cell ID the location of the
active mobile instrument can be approximated.
78] In the light of this position, we will be referring to the
various call data records. The said CDRs are duly exhibited in the
evidence of PW37 Fransis Patric Farera a Nodal Officer of Vodafone
Cellular Company, PW40 Chandrakant Bhor a Nodal Officer of
CONF.1.2016
Reliance Communication Ltd. and PW46 Dattaram Angre, a Nodal
Officer of the IDEA Cellular Ltd. Needless to state that all are CDRs
are supported by the certificates issued under Section 65-B of the
Evidence Act, by these witnesses which satisfy the requirement of the
said section. Needless to state that the CDRs are given on the basis
of the mobile numbers as well as the IMEI. We are placing on record
the CDRs of both the accused independently showing calling party,
date, time, duration, location and the receiving party along with the
endorsement as to which witness has proved the same.
CALL DETAILS OF ACCUSED NO.1 -RAJESH (MOB. NO.
9595663961)
Sr. Calling Party Date/Time/Duration Receiving Party
No.
01. Rajesh - Date- 30.08.2014 Sandeep Katre-
(9595663961) Time - 14.09.54 PW8
(Proved by PW40 (9595517745)
Exh.176/1)
No CDR
available of
30.08.2014
02. Rajesh - Date - 01.09.2014 Dharmendra-
(9595663961) Time 15.20.59 PW24
Proved by PW40, Duration 36 seconds (8928375832)
Exh.176/1. PW40 -
Chandrakant,
Exh.174/1.
CONF.1.2016
03. Rajesh - Date -01.09.2014 Sandeep Katre-
(9595663961) Time - 15.44.31 PW8
Proved by PW40, (9595517745)
Exh.176/1 Proved by
PW37- Exh.
04. Rajesh - Date - 01.09.2014 Arvind - A-2
(9595663961) Time 16.12.54 (9545967084)
Proved by PW40 Location- Gurudarshan Proved by PW-
Exh.176/1 Complex, Chhapru 37, Exh.153/1.
Nagar, Lakadganj,
Nagpur.
05. Rajesh ig Date- 01.09.2014 Ankush
(9595663961) Time 16.17.44 (Juvenile
Proved by PW40. Location- C.A. Road. accused)
Exh. 176/1. (8407954414-
Mobile in the
name of
Gopikabai.
06. Ankush (Juvenile Date - 01.09.2014 Rajesh : A-1
accused) Time - 16.39.58 (9595663961)
(7745855431) in the Location- Nari Road, Proved by
name of Nalanda Nagar, Nagpur. PW40.
Bhubhaneshwari Exh.176/1.
Daware
Proved by PW46,
Exh. 216/1.
07. Rajesh Date - 01.09.2014 Ankush
(9595663961) Time 16.56.08 (Juvenile
Proved by PW40. Location- Vidhyut Vihar, accused)
Exh.176/1 Koradi Road, Nagpur. (7745855431)
Proved by
PW46,
Exh.216/1,
CONF.1.2016
08. Rajesh Date - 01.09.2014 Ankush
(9595663961) Time 17.36.53 (Juvenile
Proved by PW40 Location- Patansaongi, accused)
Exh.176/1 Tahsil Saoner, (7745855431)
District Nagpur. Proved by PW-
46, Exh.216/1.
09. Call from PSI Date - 01.09.2014 Rajesh : A-1
Gosavi Time - 17.50.49 (9595663961)
(9764403139) Location- Patansaongi, Proved by
Tahsil Saoner, PW40, Exh.
District Nagpur. 176/1.
CALL DETAILS OF ACCUSED NO.2 -ARVIND (MOB. NO.
9594967084)
Sr. Calling Party Date/Time/Duration Receiving Party
No.
01. Arvind Singh Date - 01.09.2014 Dharmendra-
(9594967084) Time - 19.28.00 PW24
Proved by PW37, Call duration 80 seconds (8928375832)
Exh. 153/1, page Proved by
338. PW40, Exh.
174/1.
02. Arvind Singh Date - 01.09.2014 Dharmendra-
(9594967084) Time - 19.32.50 PW24
Proved by PW37, Call Duration 20 (8928375832)
Exh. 153/1. seconds. Proved by
PW40, Exh.
174/1,
03. Arvind Singh Date 01.09.2014 Pankaj : PW-15
(9594967084) Time - 19.33.41 (9822364101)
Proved by PW37, Call Duration 32
Exh.153/1, seconds
CONF.1.2016
04. Arvind Singh Date - 01.09.2014 Dr. Chandak -
(9594967084) Time - 19.39.17 PW
Proved by PW-37, Call Duration 36 (9422810491)
Exh.153/1. seconds Proved by
PW46.
The perusal of the CDRs would reveal that the version given by PW8
Sandeep Katre stands corroborated inasmuch as on 30.08.2014 as
well as once on 1.9.2014 prior to arrival on the spot of kidnapping, he
was called by accused no.1 Rajesh. The CDRs would also
corroborate the version given by PW14 Pranay that accused no.1 had
called on the cell of PW24 Dharmendra whose cell phone was kept in
the counter outside the chamber as he was assisting Dr. Chandak. It
would also corroborate his version that on receipt of the call at around
3.15 to 3.30 p.m., accused Rajesh told him that it was Rajesh who
was speaking on the phone and made inquiries with him as to
whether Doctor couple were at the clinic.
79] The CDRs would also reveal that at 16.12.54 hours, both
the accused were at Gurudarshan Complex, Chhapru Nagar,
Lakadganj, Nagpur, i.e. the place from which the deceased was
kidnapped. The CDRs would also reveal that when accused Rajesh
had called his brother Ankush at 16.17.44 hours, they were on
CONF.1.2016
Central Avenue road. It would also show that when Ankush had
called accused no.1 at 16.39.58 hours, they were at Nari Road,
Nalanda Nagar, Nagpur. It would also reveal that at 16.56.08 hours,
when accused Rajesh had called Ankush, the accused were at
Viidhyut Vihar, Koradi Road, Nagpur. At 17.36.53 hours when Rajesh
had called Ankush, the accused were at Patansawangi, tahsil
Saoner , district Nagpur. It would also reveal that when PSI PW.25
Gosavi had called Rajesh instructing him to come for interrogation at
17.50.49 hours, he was at the same location i.e. Patansawangi, tahsil
Saoner, district Nagpur.
80] PW.37 Fransis Farera has also proved the call from the
accused Rajesh to PW8 Sandeep Katre on his telephone number
9595517745 on 30.8.2014 so also call on 1.9.2014 at 15.44.31
hours. The same are exhibited below Exh. 142/1, 144/1 and 152/1.
81] We are, therefore, of the considered view that from the
aforesaid material which has been duly proved in the evidence of
various witnesses, the prosecution has proved beyond reasonable
doubt that there was constant communication between the accused
no.1 Rajesh and the juvenile in conflict with law Ankush, i.e. younger
CONF.1.2016
brother of accused. Assuming for a moment that the evidence
regarding the cell number of juvenile in conflict with law cannot be
read, still the evidence in so far as the location of the mobile phone
which is a part of a scientific record maintained in the server can very
well be used to find out the location of the accused no.1 at particular
point of time. The CDRs show that the location of the accused at
14.17.44 hours was Central Avenue Road; at 16.39.58 hours was
Nari Road, Nalanda Nagar, Nagpur; at 16.56.08 Vidyut Vihar, Koradi
Road, Nagpur; at 17.36.53 at Patansawangi, tahsil Saoner, district
Nagpur.
The evidence of PW.37 would also show that when PSI
Gosavi from his cell number 9764403139 had called accused no.1
Rajesh, the location of his mobile was Patansawangi, tahsil Saoner,
district Nagpur at 17.50.49 hours.
Most importantly it would reveal that the location of both
the accused nos. 1 and 2 when accused no.1 had called accused
no.2 on cell phone of accused No.2 was at Gurdarshan Complex,
Chhapru Nagar, Lakadganj, Nagpur i.e. the spot from where the
deceased was kidnapped.
82] The CDRs would also corroborate the version of PW24
CONF.1.2016
Dharmendra that accused no.2 had called him on his cell at around 7
p.m. and inquired about the accused no.1 Rajesh and that he has
also demanded the cell number of Dr. Chandak. He states that again
after 5-10 minutes, he received another call from accused Arvind and
he sought the cell phone number of Pankaj and he had given him cell
phone number of Pankaj. The CDRs below Exh.153/1 and 174/1
would corroborate the version of this witness.
83] Evidence of PW.15 Pankaj who was also working in the
clinic of Dr. Chandak would reveal that he had received the call on his
cell number 9822364101 from the accused Arvind. He disclosed his
identity as Arvind, friend of accused Rajesh. He asked for the cell
number of Dr. Chandak. The call is at 19.33.41 hours. The CDRs
proved by PW37 and PW46 would reveal that at 19.39.17 hours,
there was a call from the mobile of accused no.2 Arvind on the mobile
of PW1 Dr. Chandak. The said calls are also proved by PW37.
84] The prosecution has also examined PW.16 Mohandas
Balani. He states that he is running an Electronic Shop at Jaripatka.
He states that on 1.9.2014 at around 8.30 p.m. he was in his shop.
At that time one boy came to his shop on his cycle. He disclosed that
CONF.1.2016
he wanted to make a call from the coin box. He paid the currency
note of Rs.10/-. He further states that he had given ten coins to him
on exchanging currency note of Rs.10/-. He states that he saw that
the said boy was talking on the phone from the coin box saying that
"Panch Karod Leke Aana". The said witness has identified accused
no.2 in the identification parade held below panchanama Exh.65 and
also in the Court. His evidence is sought to be attacked on the
ground that the witness did not have sufficient time to have a glimpse
of the accused No.2. However, it is to be noted that hearing a
person demanding Rs.5 crores who had come on bicycle, is a
distinct feature which could have registered the accused in the mind
of this witness. Apart from this, the said call is proved in the evidence
of PW46 Dattaram Angre, NODAL Officer of the IDEA Cellular Ltd. .
PW1 Dr. Chandak has also stated in his evidence that he received a
call from this number demanding a ransom.
85] It could thus be seen that from the aforesaid CDRs which
are duly exhibited by PW37, PW40 and PW46 and in respect of which
there are certificates issued by the competent officers under Section
65-B of the Evidence Act that the accused were trying to find out
whereabouts of Dr. Chandak, that accused no.1 and juvenile/child
CONF.1.2016
conflict-in-law were in constant touch with each other, that the
accused nos. 1 and 2 were at the spot from where the deceased was
abducted at 16.12.54 hours, that the location of the mobile number of
the accused corroborates the testimony of the witnesses, that after
the deceased was done to death, accused no.2 made efforts to get
the cell number of Dr. Chandak and after getting it from PW15
Pankaj, made calls to him demanding ransom. We find that these
circumstances have been proved by the prosecution beyond
reasonable doubt.
CONSPIRACY
86] That leaves us with the last aspect as to whether the
prosecution has proved conspiracy or not. It is difficult to prove
conspiracy by direct evidence. The law with regard to the evidence
regarding conspiracy has been recently discussed by Their Lordships
of the Apex Court in the case of Pratapbhai Hamirbhai Solanki .vs.
State of Gujarat and another reported in (2013) 1 Supreme Court
Cases 613.
"21. At this stage, it is useful to recapitulate the view this
Court has expressed pertaining to criminal conspiracy.
In Damodar v. State of Rajasthan, a two-Judge Bench
after referring to the decision in Kehar Singh v. State
(Delhi Admn.), State of Maharashtra v. Somnath Thapa,
CONF.1.2016
has stated thus: -
"15. ...The most important ingredient of the
offence being the agreement between two or more
persons to do an illegal act. In a case where
criminal conspiracy is alleged, the court must
inquire whether the two persons are independently
pursuing the same end or they have come
together to pursue the unlawful object. The former
does not render them conspirators but the latter
does. For the offence of conspiracy some kind of
physical manifestation of agreement is required to
be established. The express agreement need not
be proved. The evidence as to the transmission of
thoughts sharing the unlawful act is not (sic)
sufficient. A conspiracy is a continuing offence
which continues to subsist till it is executed or
rescinded or frustrated by choice of necessity.
During its subsistence whenever any one of the
conspirators does an act or series of acts, he
would be held guilty under Section 120-B of the
Indian Penal Code 1860."
22. In Ram Narayan Popli v. Central Bureau of
Investigation, while dealing with the conspiracy the
majority opinion laid down that
"342.....the elements of a criminal
conspiracy have been stated to be: (a) an object
to be accomplished, (b) a plan or scheme
embodying means to accomplish that object, (c)
an agreement or understanding between two or
more of the accused persons whereby, they
become definitely committed to cooperate for the
accomplishment of the object by the means
embodied in the agreement, or by any effectual
means, and (d) in the jurisdiction where the statute
required an overt act."
It has been further opined that:
342..... the essence of a criminal
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conspiracy is the unlawful combination and
ordinarily the offence is complete when the
combination is framed. No overt act need be done
in furtherance of the conspiracy, and that the
object of the combination need not be
accomplished, in order to constitute an indictable
offence. Law making conspiracy a crime is
designed to curb immoderate power to do mischief
which is gained by a combination of the means.
The encouragement and support which co-
conspirators give to one another rendering
enterprises possible which, if left to individual
effort, would have been impossible, furnish the
ground for visiting conspirators and abettors with
condign punishment. The conspiracy is held to be
continued and renewed as to all its members
wherever and whenever any member of the
conspiracy acts in furtherance of the common
design."
The two-Judge Bench proceeded to state that:
342... for an offence punishable under
Section 120-B, the prosecution need not
necessarily prove that the perpetrators expressly
agree to do or cause to be done illegal act; the
agreement may be proved by necessary
implication. Offence of criminal conspiracy has its
foundation in an agreement to commit an offence.
A conspiracy consists not merely in the intention
of two or more, but in the agreement of two or
more to do an unlawful act by unlawful means.
23. In the said case it has been highlighted that in the
case of conspiracy there cannot be any direct evidence.
The ingredients of offence are that there should be an
agreement between persons who are alleged to conspire
and the said agreement should be for doing an illegal act
or for doing by illegal means an act which itself may not
be illegal. Therefore, the essence of criminal conspiracy
is an agreement to do an illegal act and such an
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agreement can be proved either by direct evidence or by
circumstantial evidence or by both, and it is a matter of
common experience that direct evidence to prove
conspiracy is rarely available. Therefore, the
circumstances proved before, during and after the
occurrence have to be considered to decide about the
complicity of the accused.
87] It could thus be seen that Their Lordships have held that
the essence of criminal conspiracy is an agreement to do an illegal
act and such an agreement can be proved either by direct or by
circumstantial evidence or by both. It has been further held that it is
a matter of common experience that direct evidence to prove
conspiracy is rarely available. Therefore, the circumstances proved
before, during and after the occurrence have to be considered to
decide about the complicity of the accused. In the present case it
can be seen from the evidence of PW8 Sandip Katre that both the
accused had conspired to kidnap the child of an affluent person, they
also wanted the said witness and two other friends to join the said
criminal act. However PW8 Sandip Katre and other two friends
refused to join the said conspiracy. Evidence of PW2 Rajan Tiwari
would also reveal that both the accused had come together to kidnap
the deceased and while returning all the three went together. The
evidence of PW.2 Rajan read with evidence of PW.9 Divya Chandel
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corroborated by PW.11 Namdeo, PW.10 Shriram and the scientific
evidence of the CCTV footage would also reveal that the accused
persons were together from around 4-4.15 to 6 p.m. Not only that but
the CDR of the mobile number of both the accused at around 4.12
p.m. show their location at the same spot. In that view of the matter
from the circumstances which are proved before, during and after the
occurrence, we are of the considered view that it can safely be
inferred that both the accused had conspired to kidnap the deceased
with an intention to either threaten to cause death or hurt to
kidnapped person or to cause hurt or death to the deceased in order
to compel the first informant to pay ransom.
88] In that view of the matter, after considering the material
placed on record, we are of the considered view that the prosecution
has proved beyond reasonable doubt that :
1. the accused were in the company of the deceased from 4.15
p.m. to dusk ,
2. the death of the deceased has occurred either during the
period when the accused were in his company or immediately
thereafter,
3. the dead body of the deceased was discovered on information
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given by the accused under Section 27 of the Evidence Act
from a place which was distinctly within the knowledge of the
accused no.1,
4. the time gap between both the accused last seen in the
company of the deceased and the death of the deceased
being so short, that it could lead to no other conclusion than the
guilt of the accused,
5. the recovery of the incriminating material from the accused
no.1 and the scientific expert's finding the blood on the
material seized from the said accused to be belonging to the
DNA of the deceased and the sand on the slippers and foot
rests of motor-cycle matching the sand from the spot of
discovery of dead body.
6. the recovery of the T-shirt of the deceased and the red
coloured T-shirt worn by him at the time of commission of crime
so also Bali (ring) of the deceased at the instance of the
accused no.2 from the place which was distinctly within his
knowledge,
7. the motive either to take revenge against Dr. Chandak and in
any case to demand a ransom,
8. the telephone conversations duly supported by the CDRs
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corroborating the activities of the accused and
9. the criminal conspiracy hatched by both the accused to kidnap
the deceased with an intention to threaten to cause death or
hurt to the deceased or to cause hurt or death to the deceased
in order to compel the first informant to pay ransom.
89] We are of the considered view that the chain of
circumstances proved beyond reasonable doubt by the prosecution,
is so interwoven to each other, that it leads to no other conclusion
than the guilt of the accused. We are of the considered view that
every hypothesis except the guilt of the accused is ruled out in the
present case. We are, therefore, of the considered view that the
conviction awarded by the learned trial Judge for the offence
punishable under Sections 364-A read with 34, 302 read with 34,
120-B and 201 read with 34 of the Indian Penal Code warrants no
interference.
S E N T E N C E
90] After having held that the accused are guilty of the
offences punishable under Sections 364-A, 302, 120-B and 201 r/w.
Section 34 of the Indian Penal Code, the question now that we are
called upon to answer is as to whether the death penalties for the
offences punishable under Sections 364-A and 302 of the Indian
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Penal Code need to be confirmed or whether some other penalty is to
be imposed on the appellants/accused herein.
91] We have extensively heard Mrs.Bharti Dangre, learned
Public Prosecutor for the State and Mr.Mir Nagman Ali, learned
Counsel and Mr.Thakur, learned Counsel for the appellant/accused.
92]
Mrs.Bharti Dangre, learned Public Prosecutor submits that
the present crime squarely fits in the category of 'the rarest of the
rare'. She submits that the unsuspecting innocent child has been
done away to death for no fault of his, only for the sake of greed of
money. She submits that, for no rhyme and reason, the child was
killed in a brutal manner and his body was concealed in the rivulet
underneath the bridge. She further submits that, even after killing the
child, the accused have demanded ransom from the first informant.
She submits that the accused have no value for human life. It is
submitted that, looking into the mental set up of the accused, it is
impossible that they would reform or rehabilitate. It is submitted that
their conduct is such which explicitly shows that they are menace to
the Society. It is, therefore, submitted that the Court, considering this
to be the rarest of the rare case, should confirm the death sentence.
CONF.1.2016
93] As against this, Mr.Mir Nagman Ali, learned Counsel for
the accused submits that the accused are young in age. It is
submitted that there is every possibility that the accused did not
intend to cause death of the deceased. It is further submitted that the
intention of the accused might have only to make an easy money and
by an accident, the death might have occurred. Mr.Mir Nagman Ali,
learned Counsel submits that the prosecution has failed to place
anything on record to show that the accused were beyond reform or
rehabilitation. Mr. Ali, learned Counsel further submits that the
academic career of accused no.1 has been brilliant. He has
throughout done fairly well in SSC, HSC and Graduation
examinations. He submits that, not only that, but accused no.1 also
intended to appear in the UPSC examination. It is submitted that the
appellants come from a poor socio-economic strata. It is submitted
that all these are mitigating circumstances and as such, leniency is
required to be shown to the accused and the death sentence be
commuted to life imprisonment. Mr. C.R. Thakur, learned Counsel
for accused No.2 adopted the arguments advanced by Shri Mir
Nagman Ali, learned Counsel for accused No.1.
94] Both - the learned Public Prosecutor as well as the
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learned Counsel for the accused, have placed on record voluminous
Judgments supporting the propositions advanced by them.
95] The law as to in what circumstances death penalty would
be warranted or not, has been succinctly laid down by the
Constitution Benches of Their Lordships of the Apex Court in the
cases of Jagmohan Singh .vs. State of Uttar Pradesh reported in
1973 (1) SCC 20, Bachan Singh .vs. State of Punjab reported in
1980 (2) SCC 684 and also of the Bench of three Hon'ble Judges in
the case of Macchi Singh and Others .vs. State of Punjab reported
in 1983 (3) SCC 470. Since then, there are various judicial
pronouncements by the highest Court of the Country, further
explaining the legal position. Recently, in the case of Shabnam (cited
supra), Their Lordships have again reiterated the legal position. It will
be appropriate to re-produce paragraph nos. 24 and 25 of the said
Judgment. They are thus :
"24. We would not lumber the discussion by
tracing the entire death penalty jurisprudence as it has
evolved in India, but only limit the exercise to cull out the
determinants which would weigh large in our mind to
award appropriate sentence while balancing the
mitigating and aggravating circumstances. We are
mindful of the principles laid down by this Court in
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Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 :
1973 SCC (Cri) 169; Bachan Singh v. State of Punjab,
(1980) 2 SCC 684 : 1980 SCC (Cri) 580 and Macchi
Singh v. State of Punjab, (1983) 3 SCC 470: 1983 SCC
(Cri) 681, as followed by this Court up to the present.
The aforesaid decisions indicate that the most significant
aspect of sentencing policy in Indian criminal
jurisprudence regarding award of death penalty is that
life sentence is a rule and death sentence is an
exception only to be awarded in "the rarest of rare
cases". Death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances
of the crime, and provided the option to impose sentence
of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances
of the crime and all the relevant circumstances. The
circumstances which should or should not be taken into
account, and the circumstances which should be taken
into account along with other circumstances, as well as
the circumstances which may, by themselves, be
sufficient, in the exercise of the discretion regarding
sentence cannot be exhaustively enumerated."
"25. The guidelines and principles for
classification of circumstances and determination of the
culpability indicia as laid down by this Court in the
aforesaid cases have been succinctly summarized in
Ramnaresh v. State of Chattisgarh, (2012) 4 SCC 257 :
(2012) 2 SCC (Cri) 382. The said are extracted as under
: (SCC pp. 285-86, paras 76-77) :
"Aggravating circumstances :
(1) The offences relating to the commission of
heinous crimes like murder, rape, armed dacoity,
kidnapping etc. by the accused with a prior record of
conviction for capital felony or offences committed by
the person having a substantial history of serious
assaults and criminal convictions.
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(2) The offence was committed while the offender
was engaged in the commission of another serious
offence
(3) The offence was committed with the intention to
create a fear psychosis in the public at large and was
committed in a public place by a weapon or device
which clearly could be hazardous to the life of more
than one person.
(4) The offence of murder was committed for
ransom or like offences to receive money or monetary
benefits.
(5) Hired killings.
(6) The offence was committed outrageously for
want only while involving inhumane treatment and
torture to the victim.
(7) The offence was committed by a person while
in lawful custody.
(8) The murder or the offence was committed to
prevent a person lawfully carrying out his duty like
arrest or custody in a place of lawful confinement of
himself or another. For instance, murder is of a
person who had acted in lawful discharge of his duty
under Section 43 of the Code of Criminal Procedure.
(9) When the crime is enormous in proportion like
making an attempt of murder of the entire family or
members of a particular community.
(10) When the victim is innocent, helpless or a
person relies upon the trust of relationship and social
norms, like a child, helpless woman, a daughter or a
niece staying with a father/uncle and is inflicted with
the crime by such a trusted person.
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(11) When murder is committed for a motive which
evidences total depravity and meanness.
(12) When there is a cold-blooded murder without
provocation.
(13) The crime is committed so brutally that it pricks
or shocks not only the judicial conscience but even
the conscience of the society.
Mitigating circumstances :
(1) ig The manner and circumstances in and
under which the offence was committed, for
example, extreme mental or emotional disturbance
or extreme provocation in contradistinction to all
these situations in normal course.
(2) The age of the accused is a relevant
consideration but not a determinative factor by itself.
(3) The chances of the accused of not
indulging in commission of the crime again and the
probability of the accused being reformed and
rehabilitated.
(4) The condition of the accused shows that
he was mentally defective and the defect impaired
his capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstance which, in normal course
of life, would render such a behaviour possible and
could have the effect of giving rise to mental
imbalance in that given situation like persistent
harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and
circumstances of the case, the accused believed that
he was morally justified in committing the offence.
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(6) Where the court upon proper appreciation
of evidence is of the view that the crime was not
committed in a preordained manner and that the
death resulted in the course of commission of another
crime and that there was a possibility of it being
construed as consequences to the commission of the
primary crime.
(7) Where it is absolutely unsafe to rely upon
the testimony of a sole eyewitness though
prosecution has brought home the guilt of the
accused.
ig While determining the questions relatable
to sentencing policy, the court has to follow certain
principles and those principles are the loadstar
besides the above considerations in imposition or
otherwise of the death sentence.
Principles :
(1) The court has to apply the test to determine, if it
was the 'rarest of rare' case for imposition of a death
sentence.
(2) In the opinion of the court, imposition of any
other punishment i.e. life imprisonment would be
completely inadequate and would not meet the ends
of justice.
(3) Life imprisonment is the rule and death
sentence is an exception.
(4) The option to impose sentence of
imprisonment for life cannot be cautiously exercised
having regard to the nature and circumstances of the
crime and all relevant circumstances.
(5) The method (planned or otherwise) and the
manner (extent of brutality and inhumanity, etc.) in
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which the crime was committed and the
circumstances leading to commission of such
heinous crime."
96] It could thus be seen that Their Lordships have held that
most significant aspect of sentencing policy in Indian Criminal
Jurisprudence regarding award of death penalty, is that life sentence
is a rule and death sentence is an exception only to be awarded in
"the rarest of the rare case". It has further been held that death
sentence must be imposed only when life imprisonment appears to
be an altogether inadequate punishment having regard to the relevant
circumstances of the crime.
97] It could further be seen that the Apex Court has culled out
various aggravating circumstances and mitigating circumstances. The
principles have been laid down by the Apex Court requiring the Court
to apply the test to determine, if it was the 'rarest of the rare' case for
imposition of death sentence. The Court must come to the conclusion
that imposition of any other punishment i.e. life imprisonment would
be completely inadequate and would not meet the ends of justice. It
has further been held that the death sentence should be imposed
when the option to impose sentence of imprisonment for life cannot
CONF.1.2016
be conscientiously exercised having regard to the nature and
circumstances of the crime and all relevant circumstances. It has
been further laid down that the Court should take into consideration
the method (planned or otherwise) and the manner (extent of brutality
and inhumanity, etc.) in which the crime was committed and the
circumstances leading to commission of such heinous crime.
98]
In the light of these guiding principles, we will first
consider the aggravating circumstances and mitigating circumstances
as culled out by Their Lordships in the case of Shabnam vs. State of
Uttar Pradesh, 2015 (6) SCC 632 (cited supra).
Aggravating Circumstance No.1 : There is no prior record of
conviction for capital felony or record of accused having substantial
history of serious assaults and criminal convictions. As such,
aggravating circumstance no.1 would not be available in the present
case.
Aggravating Circumstance No.2 : It can be seen from the material
placed on record that the accused had engaged in the serious crime
punishable under Sections 363/364-A of the Indian Penal Code and
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at that time, they have caused death of deceased which is punishable
under Section 302 of the Indian Penal Code. As such, aggravating
circumstance no.2 would be available in the present case.
Aggravating Circumstance No.3 : There is no evidence that the
offence was committed in a public place by weapon or device which
clearly could be hazardous to the life of more than one person. As
such, circumstance no.3 is also not available in the present case.
Aggravating Circumstance No.4 : As already held by us, the
offence was committed with a motive to get ransom or to receive
money or monetary benefit. As such, circumstance no.4 would be
available in the present case.
Aggravating Circumstance No.5 : The present case is not the
case of hired killing and as such, circumstance no.5 would not be
available.
Aggravating Circumstance No.6 : As held by us, the offence was
committed outrageously only in order to take revenge against the first
informant and with an intention to receive huge amount from him.
CONF.1.2016
The mental torture and inhumane treatment through which the
deceased must have gone after he was kidnapped cannot be
described in words. The approach of the accused has been totally
inhumane and as such, circumstance no.6 would be fully available in
the present case.
Aggravating Circumstance No.7 : Since the appellants were not in
lawful custody of the minor child, circumstance no.7 would not be
available.
Aggravating Circumstance No.8 : Since this is not the case where
the murder or the offence was committed to prevent a person lawfully
carrying out his duty like arrest or custody, circumstance no.8 would
also not be applicable.
Aggravating Circumstance No.9 : Circumstance no.9 is also not
available inasmuch as this is not the case of an attempt to murder the
entire family or members of a particular community.
Aggravating Circumstance No.10 : It is the prosecution case,
which we find is fully established that, by wearing the uniform of clinic
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of father of victim by accused no.2, the victim was made to believe
that accused no.2 was an employee of his father and that he was
called in the clinic and under such belief on the said representation,
the victim was kidnapped and murdered. As such, circumstance
no.10 would be fully available in the present case.
Aggravating Circumstance No.11 : As already held hereinabove,
the helpless child was made to believe that an employee of the clinic
had come to pick him up for taking him to the clinic and thereafter, he
was kidnapped and for no fault of his, was done to death by
smothering only in order to take revenge against his father and for
seeking a huge money in ransom. We find that the murder is
committed for a motive which evidences total depravity and
meanness. As such, circumstance no.11 is also fully available in the
present case.
Aggravating Circumstance No.12 : Leave aside the aspect of
there being any provocation, but, only in order to become rich
overnight, life of a young boy was nibbed in bud in a manner which
shows no respect for human life. Not only that, but his dead body,
after removing his T-Shirt so that his identity becomes difficult, was
CONF.1.2016
concealed in a rivulet under the bridge covered with sand and bolder.
Hence, we find that circumstance no.12 is also fully available in the
present case.
Aggravating Circumstance No.13 : It will not be out of place to
state that, after the crime was noticed, it shocked the conscience of
entire society and there was an uproar in the region. It could be
seen from the record that the defence itself, in the evidence of PW.9
has brought on record the newspaper report of the relevant period
which show that there was a hue and cry in the society. The
newspaper report which has been brought on record at the instance
of the accused would show that anticipating overall discontent from
public at large about the said incident, the police had apprehension
that the people may attack the accused in the Court premises and as
such, both the accused were taken to Court at 1.30 p.m. Before
producing the accused before the Court, the mob gathered in the
Court was moved out of the Court premises. Apprehending danger,
the door of the Court was closed soon after the accused entered the
Court. It could thus be seen that the sentiments of the society had
reached its peak due to the horrifying act of the accused. As such,
circumstance no.13 would also be available in the present case.
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99] Let us now examine as to what are the mitigating
circumstances in the instant case.
Mitigating Circumstance No.1 : In the present case it is not as if
that the offence was committed by the accused in extreme mental or
emotional disturbance or extreme provocation. On the contrary, the
evidence on record shows that the accused persons had conspired
and planned to carry out kidnapping of the victim for taking revenge
against the first informant and to become rich overnight by
demanding a huge ransom. The evidence of Sonam Kevalram
Meshram (PW-19) and Sandeep Kisanlal Katre (PW-8) fully
establishes this fact. As such, the said circumstance is not available
in the present case.
Mitigating Circumstance No.2 : Insofar as circumstance no.2 is
concerned, though the age of the accused is a relevant consideration,
but not a determinative factor by itself. The Apex Court in the case of
Dhananjoy Chatterjee @ Dhana vs. State of West Bengal, (1994)
2 SCC 220 has found that though the accused was of young age, the
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said cannot be a mitigating circumstance in his favour. As such,
though the accused are of young age, looking at the nature of crime
and method and manner in which it is committed by the accused, it
cannot be said that the said circumstance would be in their favour.
Mitigating Circumstance No.3 : Perusal of evidence of Sonam
Meshram (PW-19) and Sandeep Katre (PW-8) would reveal that the
mindset of accused in the present case was of criminal nature. The
evidence would show that the accused were willing to go to any
extent to become rich. Not only that, but the accused had also
instigated Sandeep Katre (PW-8) and other friends to join them in the
commission of crime. We are, therefore, of the considered view that,
in the present case, the chances of the accused not indulging in
commission of such crime again are very remote and the probability
of the accused being reformed and rehabilitated is very less. As such,
the 3rd circumstance is also not available.
Mitigating Circumstance No.4 : There is no material placed on
record that the accused were mentally defective and the defect
impaired their capacity to appreciate the circumstances of their
criminal conduct. As such, said circumstance no.4 would not be
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available.
Mitigating Circumstance No.5 : It is not anybody's case that the
accused were subjected to persistent harassment leading to such
peak of human behaviour that, in the facts and circumstances of the
case, the accused believed that they were morally justified in
committing the offence.
As a matter of fact, very recently i.e. on 25.4.2016, in
Criminal Confirmation case No.2 of 2015 with Criminal Appeal
No.43 of 2016, State vs. Imdad Ali Waid Ali Sayyad, we have
considered a case of the convict therein, who was also awarded
death penalty by the learned trial Court. We have found that there
were possibilities of the convict therein committing the crime on
account of continuous humiliation faced by him, due to desertion by
his wife and she marrying a man of much younger age without
divorcing the convict and we had, therefore, found that the convict
therein was entitled to benefit of mitigating circumstance nos.1, 4 and
5.
In the present case, there is no provocation. The helpless
unsuspecting innocent child is kidnapped and murdered. As such,
circumstance no.5 would not be available.
CONF.1.2016
Mitigating Circumstance No.6 : From the material placed on
record, there is no scope to come to the conclusion that the crime
was not committed in a preordained manner and that the death
resulted in the course of commission of another crime and that there
was a possibility of it being construed as consequences to the
commission of primary crime. The evidence clearly goes to establish
that the accused had planned to commit the crime and had also
planned a Scheme in meticulous manner and executed the same. As
such, this circumstance would also not be available.
Mitigating Circumstance No.7 : In the present case, it is not as if
the conviction is being based only relying on the testimony of sole eye
witness. As a matter of fact, in the case of State .vs. Imdad Ali Waid
Ali Sayyad (cited supra), which we have decided on 25.4.2016, we
have found that the conviction therein largely was based on the
evidence of sole eye witness and therefore, we have commuted the
death sentence to 30 years' life imprisonment without remission, prior
to his case being considered for premature release.
Such is not the case here. The prosecution, on the basis
of circumstances which are proven beyond reasonable doubt, has
fully established the case that the accused had preplanned the crime
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and executed the same.
100] As such, we find that, in the present case, seven
aggravating circumstances i.e. aggravating circumstances nos.2, 4, 6,
10, 11, 12 and 13 are available; whereas none of the mitigating
circumstances is available. As such, even giving full weightage to the
mitigating circumstances, balance sheet of the aggravating
circumstances and mitigating circumstances fully tilts in favour of the
aggravating circumstances.
101] With regard to the submission of Mr. Mir Nagman Ali,
learned Counsel for the appellants that, since the accused are young
in age and that one of the accused is having a brilliant academic
career, the same should be considered as a mitigating circumstance,
we find that the said submission is without substance. As already
discussed hereinabove, in view of the law laid down in the case of
Dhananjoy Chatterjee @ Dhana (cited supra), merely because the
accused is of young age, it cannot be said to be a mitigating
circumstance. With regard to the other submission regarding good
academic career of the accused, we find that the said circumstance
would rather than being a mitigating circumstance, would be an
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aggravating circumstance. We could understand such a crime being
committed by an illiterate person. But, when a person who is
educated and aware of the ramifications of such crime commits such
a crime in a broad day light with a meticulous planning and executes
the same, in our view, it could aggravate the circumstance rather than
mitigate the same.
102]
Applying the principles as laid down by the Apex Court in
the case of Shabnam (cited supra), we are of the considered view
that the instant case is the rarest of rare case for imposition of death
sentence. In our considered opinion, imposition of other punishment
i.e. life imprisonment would be completely inadequate and would not
meet the ends of justice. We are conscious that life imprisonment is
the rule and death sentence is exception. However, taking into
consideration the enormity and brutality of the crime, we find that, in
the facts and circumstances of the case, imposition of death penalty,
which is an exception, is a just sentence. For the same reason, we
find that the option to impose sentence of life imprisonment for life
cannot be cautiously exercised having regard to the nature and
circumstances of the crime and all relevant circumstances. Applying
the fifth principle, we find that the method and manner in which the
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crime was committed and the circumstances leading to commission
of such heinous crime also warrant death penalty. At the cost of
repetition, we state that the accused persons had planned in advance
to commit the crime. As planned, they also executed the plan in
meticulous manner and the unsuspecting child was misled that he
was called in his father's clinic and thereafter, he was kidnapped and
brutally murdered and his body was concealed beneath a bridge.
103] Though reliance is placed by both the sides on various
cases, we do not wish to burden the Judgment with all of them. We
will restrict ourselves to refer to the Judgments of Their Lordships of
the Apex Court which are nearer to the facts in the present case.
104] Somewhat identical facts came up for consideration before
the Bench of three Hon'ble Judges of the Supreme Court in the case
of Henry Westmuller Roberts .vs. State of Assam reported in
(1985) 3 SCC 291. The three accused therein namely Henry, Sunil
and Naresh were employees of the Oil and Natural Gas Commission
(ONGC) at Sibsagar in Assam. The fourth accused namely Anil was a
Mohurrir under a Contractor of the ONGC at Sibsagar. The four
accused entered into a conspiracy to kidnap minor children at
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Sibsagar, Dibrugarh and Tinsukhia with a view to extract ransom.
One Chabil Prasad Agarwala (PW-23) was doing business in
foodgrains in a shop at Siding Bazar, Tinsukhia situated in Dibrugarh
district. He was living in a dwelling house situated adjacent to his
shop with his wife and seven children including deceased Sanjay.
There was a day-long 'Holi' festival on 26th March, 1975 at Shiva
Temple. Two accused had come there. A number of children
including deceased Sanjay were also present in the pendal erected
for the festival playing with other children. Accused Henry came and
watched the play and remarked that Sanjay was playing well.
Sanjay's elder sister came to the pendal in search of Sanjay since
their mother had asked her to get Sanjay back at home. Henry called
Sunil and asked him to bring chocolates. When deceased Sanjay and
his sister were moving away from the pendal, Henry called deceased
Sanjay and asked him to come saying that he would give him
chocolates. Thereafter, deceased Sanjay stayed behind after telling
his sister that he would come a little later. Sunil brought chocolates
which Henry distributed to the children. Deceased Sanjay did not
return home. A frantic attempt was made to make search; however,
the deceased was not found and as such, his father lodged the First
Information Report. Thereafter, a message came on telephone at the
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father's shop demanding ransom of Rs. 3,00,000/- for return of
Sanjay. Thereafter, by various modes, the demands for ransom were
made. Noticing the number of public call office from where the calls
were made to the father of deceased Sanjay, the police had deployed
some plain-clothed police personnel at the Digboi public call office.
After obtaining confirmation about the booking of call from the
telephone office employee, said Henry was apprehended for his
interrogation. He confessed of committing the crime. The said case
was also a case of circumstantial evidence. The learned trial Judge
sentenced accused Henry and Sunil to death. In the Confirmation
case, the High Court upheld the death sentence. While upholding the
death sentence awarded to Henry, Their Lordships of the Apex Court
observed thus :
" We are of the opinion that the offences committed by
Henry, the originator of the idea of kidnapping children
of rich people for extracting ransom, are very heinous
and pre-planned. He had been attempting to extract
money from the unfortunate boy's father, PW-23 even
after the boy had been murdered by making the father
to believe that the boy was alive and would be returned
to him if he paid the ransom. In our opinion, this is one
of the rarest of rare cases in which the extreme penalty
of death is called for for the murder of innocent young
boy, Sanjay in cold blood after he had been kidnapped
with promise to be given sweets. We, therefore, confirm
the sentence of death and the other sentences awarded
to Henry by the High Court under Sections 302, 364,
201 and 387 IPC and dismiss Criminal Appeal No.545
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of 1982 filed by him. "
105] In the case of Sunder @ Sundararajan vs. State
reported in 2013 LawSuit (SC) 105, deceased Suresh, aged seven
years, who was living with mother namely Maheshwari (PW-1), left
the residence in the morning of 27th July, 2007 to attend his School
at a taluka place. As a matter of routine, Suresh used to return
along with other students at 4.30 p.m. However, on the said date,
since he did not return, his mother got worried and she made inquiry
with other students who used to travel to the School along with
deceased Suresh. On inquiry, she came to know that a man was
waiting alongside a motor cycle when the School Van returned to
the village on the same day. The man told Suresh that he had been
asked by his mother to bring him to the hospital. Based on the said
assertion, Suresh accompanied the man on his motor cycle.
Accordingly, the mother lodged complaint with Police Station. In the
night of the same day, the mother received a call on her mobile
phone from one Shankar demanding ransom of Rs.5,00,000/- for
release of Suresh. The mother rushed to the Police Station and
informed the Police about the same. The accused were
apprehended, who made confessional statements to the effect that
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they strangulated Suresh when ransom was not paid for his release.
They had put the dead body of Suresh in a gunny bag and
thereafter they had thrown it in the Meerankulam tank. Accordingly,
the dead body of Suresh was found in a gunny bag which had been
fished out of the said tank. The learned trial Judge had convicted
the accused for the offences punishable under Sections 363, 302
and 201 of the Indian Penal Code and awarded death penalty. The
High Court confirmed the death sentence. It will be relevant to
reproduce paragraph nos. 30 and 31 in the Judgment of the Apex
Court in appeal by the appellants. They read thus :
"30. We are one with the learned counsel for the
accused-appellant, on the parameters prescribed by
this Court, for inflicting the death sentence. Rather than
deliberating upon the matter in any further detail, we
would venture to apply the parameters laid down in the
judgments relied upon by the learned counsel for the
accused-appellant, to determine whether or not life
imprisonment or in the alternative the death penalty,
would be justified in the facts and circumstances of the
present case. We may first refer to the aggravating
circumstances as under:-
(i) The accused-appellant has been found guilty of
the offence under Section 364A of the Indian Penal
Code. Section 364A is being extracted hereunder:-
"364A. Kidnapping for ransom, etc.--Whoever
kidnaps or abducts any person or keeps a person
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in detention after such kidnapping or abduction
and threatens to cause death or hurt to such
person, or by his conduct gives rise to a
reasonable apprehension that such person may be
put to death or hurt, or causes hurt or death to
such person in order to compel the Government or
any foreign State or international inter-
governmental organization or any other person to
do or abstain from doing any act or to pay a
ransom, shall be punishable with death, or
imprisonment for life, and shall also be liable to
fine."
ig A perusal of the aforesaid provision
leaves no room for any doubt, that the offence of
kidnapping for ransom accompanied by a threat to
cause death contemplates punishment with death.
Therefore, even without an accused actually
having committed the murder of the individual
kidnapped for ransom, the provision contemplates
the death penalty. Insofar as the present case is
concerned, there is no doubt, that the accused-
appellant has been found to have kidnapped
Suresh for ransom, and has also actually
committed his murder. In the instant situation
therefore, the guilt of the accused-appellant
(under Section 364A of the Indian Penal Code)
must be considered to be of the gravest nature,
justifying the harshest punishment prescribed for
the offence.
(ii) The accused-appellant has also been found
guilty of the offence of murder under Section 302
of the Indian Penal Code. Section 302 of the
Indian Penal Code also contemplates the
punishment of death for the offence of murder. It
is, therefore apparent, that the accused-appellant
is guilty of two heinous offences, which
independently of one another, provide for the
death penalty.
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(iii) The accused caused the murder of child of 7
years. The facts and circumstances of the case do
not depict any previous enmity between the
parties. There is no grave and sudden
provocation, which had compelled the accused to
take the life of an innocent child. The murder of a
child, in such circumstances makes this a case of
extreme culpability.
(iv) Kidnapping of a child was committed with the
motive of carrying home a ransom. On account of
the non-payment of ransom, a minor child's
murder was committed. This fact demonstrates
that the accused had no value for human life. The
instant circumstance demonstrates extreme
mental perversion not worthy of human
condonation.
(v) The manner in which the child was murdered,
and the approach and method adopted by the
accused, disclose the traits of outrageous
criminality in the behaviour of the accused. The
child was first strangulated to death, the dead
body of the child was then tied in a gunny bag,
and finally the gunny bag was thrown into a water
tank. All this was done, in a well thought out and
planned manner. This approach of the accused
reveals a brutal mindset of the highest order.
(vi) All the aforesaid aggravating circumstances
are liable to be considered in the background of
the fact, that the child was known to the accused-
appellant. In the examination of the accused
under Section 313 of the Code of Criminal
Procedure, the accused acknowledged, that he
used to see the child whenever the child was
taken by his mother to her native village.
Additionally, it is acknowledged in the pleadings,
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that the accused had developed an acquaintance
with the child, when his mother used to visit her
native place along with her son. Murder was
therefore committed, not of a stranger, but of a
child with whom the accused was acquainted.
This conduct of the accused-appellant, places the
facts of this case in the abnormal and heinous
category.
(vii) The choice of kidnapping the particular child
for ransom, was well planned and consciously
motivated. The parents of the deceased had four
children - three daughters and one son.
Kidnapping the only male child was to induce
maximum fear in the mind of his parents.
Purposefully killing the sole male child, has grave
repercussions for the parents of the deceased.
Agony for parents for the loss of their only male
child, who would have carried further the family
lineage, and is expected to see them through
their old age, is unfathomable. Extreme misery
caused to the aggrieved party, certainly adds to
the aggravating circumstances."
"31. As against the aforesaid aggravating
circumstances, learned counsel for the accused-
appellant could not point to us even a single
mitigating circumstance. Thus viewed, even on the
parameters laid down by this Court, in the
decisions relied upon by the learned counsel for
the accused- appellant, we have no choice, but to
affirm the death penalty imposed upon the
accused-appellant by the High Court. In fact, we
have to record the aforesaid conclusion in view of
the judgment rendered by this Court in Vikram
Singh & Ors. Vs. State of Punjab, (2010) 3 SCC
56, wherein in the like circumstances (certainly,
the circumstances herein are much graver than
the ones in the said case), this Court had upheld
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the death penalty awarded by the High Court."
106] It could thus be seen that the facts in the said case are
almost identical to the facts in the present case. We find that the
observations made by Their Lordships of the Apex Court
hereinabove fully apply to the present case, with the same rigour.
107]
It will also be relevant to refer to the Judgment of Hon'ble
three Judges of the Apex Court in the case of Vikram Singh @
Vicky and another vs. Union of India and Others reported in
2012(1) SCC 406. In the said case, the appellants were also
convicted and sentenced to death for commission of offences
punishable under Sections 302, 364-A of the Indian Penal Code.
The conviction and sentence awarded to them was confirmed by the
High Court of Punjab and Haryana and also by the Apex Court. The
appellants filed a Writ Petition for declaration that Section 364-A of
the Indian Penal Code was ultra vires the Constitution to the extent
the same prescribes death sentence for any one found guilty and as
such, a prayer was made for quashing the death sentence
confirmed by the High Court as well as the Apex Court. The Writ
Petition filed before the Apex Court was withdrawn with liberty to the
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petitioners to approach the High Court. The appellants before the
Apex Court thereafter approached the High Court by way of Writ
Petition. The High Court dismissed the Writ Petition. After dismissal
of the petition by High Court, they approached the Apex Court. It
will be appropriate to refer to the following observations of the Apex
Court, which are thus :
"54. Given the background in which the law was
enacted and the concern shown by the Parliament for
the safety and security of the citizens and the unity,
sovereignty and integrity of the country, the punishment
prescribed for those committing any act contrary of
Section 364-A IPC cannot be dubbed as so
outrageously disproportionate to the nature of the
offence as to call for the same being declared as
unconstitutional. Judicial discretion available to the
courts to choose one of the two sentences prescribed
for those falling foul of Section 364-A IPC will doubtless
be exercised by the Courts along the judicially
recognised lines and death sentences awarded only in
the rarest of rare cases. But just because the sentence
of death is a possible punishment that may be awarded
in appropriate cases cannot make it per se inhuman or
barbaric. In the ordinary course and in cases which
qualify to be called rarest of the rare, death may be
awarded only where kidnapping or abduction has
resulted in the death either of the victim or anyone else
in the course of the commission of the offence. Fact
situations where the act which the accused is charged
with is proved to be an act of terrorism threatening the
very essence of our federal, secular and democratic
structure may possibly be the only other situations
where Courts may consider awarding the extreme
penalty. But, short of death in such extreme and the
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rarest of rare cases, imprisonment for life for a proved
case of kidnapping or abduction will not qualify for being
described as barbaric or inhuman so as to infringe the
right to life guaranteed under Article 21 of the
Constitution. "
108] It could thus be seen that Their Lordships, while refusing
to interfere with the death sentence already confirmed by the Apex
Court in its earlier Judgment in the case of Vikram Singh and
Others .vs. State of Punjab, have held that the death may be
awarded only where kidnapping and abduction has resulted in the
death either of the victim or any one else in the course of
commission of offence. We are, therefore, of the considered view
that the death sentence awarded in the present case warrants no
interference.
109] Mr.Mir Nagman Ali, learned Counsel for accused no.1
has referred to various Judgments of Their Lordships wherein the
death penalty has not been imposed by Their Lordships of the Apex
Court and the sentence is commuted to life imprisonment. No doubt
that there are various Judgments of Their Lordships either
confirming the death sentence or commuting the same to life
imprisonment. However, each case has been decided on the facts
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of each case. We would not make the Judgment bulkier by referring
to each and every Judgment cited on behalf of either the
prosecution or the defence as already discussed hereinabove. We
have hereinabove referred to the Judgments of the Hon'ble
Supreme Court which are nearer to the facts of the present case.
Some of the Judgments which have been cited by the learned
Counsel for the defence have been considered by Their Lordships
of the Apex Court in the case of Vikram Singh and Others vs.
State of Punjab reported in 2010 (2) SCC 47. It will be
appropriate to refer to paragraph nos. 28 and 29 of the said
Judgment. They are thus :
28. Mr. Sharan has, however, placed reliance on
some observations in Santosh Kumar's and Sushil
Kumar's cases (supra), as already indicated above.
These judgments have merely rested on the earlier
position of law, and laid great emphasis on the drawing
up of the balance sheet and have gone into the
development of the jurisprudence and philosophy with
regard to the imposition of the death penalty under
Indian law. Sushil Kumar's case (supra), cited by Mr.
Sharan sentence pertained to a death sentence
awarded for the murder of a wife, a son aged 6 years
and a daughter aged 4 years of the appellant. The
judgment of the Sessions Judge was confirmed by the
High Court in reference. The matter thereafter came to
this Court by way of special leave. This Court after
hearing the matter at length drew up the balance sheet
envisaged in Bachan Singh's and Machi Singh's cases
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(supra) and held that the mitigating circumstances far
outweighed the aggravating ones and these were
delineated as under :
"(i) appellant had been unemployed for last 7 to 8
months.
(ii) he used to borrow money from others to meet
his daily needs.
(iii) he himself had consumed `sulphas tablets' to
commit the suicide even though not medically
established.
(iv) he therefore, was keen that his whole family
should be finished and no one should be alive to
suffer the pain and agony alone.
(v) he was fed up with his life and was seen in a
perplexed condition by PW-4.
(vi) in any case, he cannot be a threat to the
society and there are fairly good chances of his
reformation as he has learnt sufficient lesson
from it.
Extreme poverty had driven the appellant to
commit the gruesome murder of three of his very
near and dear family members - his wife, minor
son and daughter.
There is nothing on record to show that
appellant is a habitual offender. He appears to
be a peace loving, law abiding citizen but as he
was poverty stricken, he thought in his wisdom
to completely eliminate his family so that all
problems would come to an end. Precisely, this
appears to be the reason the offence of murder.
No witness has complained about his bad or
intolerable behaviour in the past. Many people
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had visited his house after the incident is
indicative of the fact that he had cordial relations
with all. He is now about 35 years of age and
there appear to be fairly good chances of the
appellant getting reformed and becoming a good
citizen."
"29. This judgment can by no stretch of
imagination advance the case of appellants
before us. The balance sheet has been drawn up
by the High Court. We adopt the same."
110]
Perusal of the afore-said Judgment of the Hon'ble
Supreme Court reveals that what is most relevant is the balance
sheet of aggravating and mitigating circumstances. We have drawn
an elaborate balance sheet of the aggravating and mitigating
circumstances. At the cost of repetition, we may state that, out of
the thirteen aggravating circumstances, seven are available in the
present case. As against this, none of the mitigating circumstances
is available. The balance sheet of aggravating and mitigating
circumstances fully tilts in favour of the aggravating circumstances.
In that view of the matter, we find that the present case deserves to
be treated as the 'rarest of the rare case'.
111] The Apex Court in various cases has held that the rarest
of rare test depends upon the perception of the Society i.e. the
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approach should be "society-centric" and not "judge centric". The
test has to be applied as to whether the society will approve the
awarding of death sentence to the crime in question or not.
112] In the case of Macchi Singh and Others vs. State of
Punjab reported in 1983 (3) SCC 470, Their Lordships of the Apex
Court observed thus :
"The Court is required to consider whether the collective
conscience is so shocked that it will expect the holders
of judicial power centre to inflict death penalty
irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty."
113] As such, while deciding the present case, we will have
to keep ourself aloof from our personal opinion as regarding the
desirability or otherwise of retaining death penalty. What is required
by us, is to decide as to whether in the perception of the society at
large, the present case is a case which can be considered as rarest
of rare case warranting death sentence.
114] We may gainfully refer to the words of Lord Denning,
which have been quoted by Their Lordships of the Apex Court in the
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case of Deepak Rai .vs. State of Bihar reported in (2013) 10 SCC
421, on the very purpose of imposition of a punishment. They are
thus :
" ... the punishment is the way in which society
expresses its denunciation of wrongdoing; and, in
order to maintain respect for the law, it is essential
that the punishment inflicted for grave crimes should
adequately reflect the revulsion felt by the great
majority of citizens for them. It is a mistake to
consider the objects of punishments as being a
deterrent or reformative or preventive and nothing
else.... The truth is that some crimes are so
outrageous that society insists on adequate
punishment, because the wrongdoer deserves it,
irrespective of whether it is a deterrent or not. "
115] It will also be appropriate to refer to the observations of
the Apex Court in the case of Dhananjoy Chatterjee @ Dhana
(cited supra). They are thus :
"The courts must not only keep in view the rights of
the criminal but also the rights of the victim of crime
and the society at large while considering imposition
of appropriate punishment."
116] As such, we will be required to consider as to whether
the present crime is of such a nature that the society insists of
adequate penalty of death or not. In other words, we will have to
consider as to what is the sentence that the society demands to be
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awarded in the facts and circumstances of the present case.
117]. In the background of these principles, we will have to
examine the facts and circumstances of the present case.
Accused no.1 Rajesh was employee with Dr.Mukesh
(PW-1). He became acquainted with the sons of Dr.Mukesh since
the children used to come to the Clinic. On one occasion, there was
also an alteration between him and the deceased since the
deceased was playing on the Computer at the reception counter,
which was operated by accused no.1. He had slapped the child.
Dr.Mukesh (PW-1) gave him understanding not to repeat such
things. Accused no.2 was also charging excess amount from the
patients of Dr.Mukesh. One of the patients complained about this to
Dr.Mukesh. On being accosted about the same, he discontinued
the job. However, while doing so, he did not return the red coloured
T-Shirt of "Status quo" Company which was given to him as a part
of uniform of Clinic. Being acquainted with Dr. Chandak's family,
accused no.1 was aware of the timings at which his children return
from the school. He was also aware that, at times, the employees of
the clinic used to bring the children to the Clinic. Aware about all
these facts, accused no.1 hatches a conspiracy with accused no.2;
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wherein accused no.2 is to wear the red T-shirt so as to give the an
impression to the unsuspecting minor child that he is employee of
the clinic. They also tried to rope some other persons including
Sandeep Katre (PW-8) in the conspiracy. However, on their refusal,
both the accused decided to commit the crime themselves and
meticulously executed the plan. Both the accused arrive at the spot
where the minor child was to alight from the bus. Accused no.1
stands at some distance and sends accused no.2, who was
wearing red T-shirt, on Scooty to the spot, where the deceased was
to alight from the School bus. The unsuspecting child, considering
accused no.2 to be the employee of his father's Clinic, innocently
goes along with him on the Scooty. Accused no.1 joins them. They
go to the house of accused no.1, change the vehicle and, on a
motor cycle, they travel on the highway and thereafter, take the
child in the interiors. The unsuspecting child is done away to death
by smothering. They remove his T-shirt so that identification of the
deceased becomes difficult. They conceal his body beneath a
bridge wherein normally nobody goes. The accused no.1 is aware
about the said spot, as could be seen from the testimony of Sonam
Meshram. They put a bolder on his face and cover the body
with the sand. Thereafter, they also have an audacity of
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demanding ransom from the first informant, after killing his son.
118]. Are these circumstances such where the Society would
expect us to take a lenient view. Would the Society expect of us to
show leniency in favour of the persons who had kidnapped the
unsuspecting innocent child and nibbed his life in the bud before
permitting it to flower. Would the Society expect the holders of
judicial power centre to leave the persons with normal life
imprisonment, who tortured the minor child and the entire family
only in order to become rich overnight,. It will not be out of place to
mention that, after the incident had occurred, conscience of the
Society in the entire region was shocked. There was an uproar in
the entire region and a sort of fear psychosis in the Society. The
mothers were afraid of sending their children to Schools. They were
under an apprehension as to whether their children having gone to
School would return home alive or not. The entire region witnessed
agitations, processions and candle marches shocked by the
grueling event. Does the collective conscience of the Society expect
of the judicial power centre to ignore all these aspects.
119]. We are of the considered view that the collective
conscience of the Society demands that a message be penetrated
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that such an abhorrent act would not be tolerated by the Society
and the persons indulging in the such heinous act must be dealt
with sternly. We have no hesitation to hold that the Society
demands that this case be treated as "the rarest of the rare case"
and death penalty be imposed upon the accused herein.
120] In the result, the reference made by the learned
Sessions Judge in Criminal Confirmation Case No. 1 of 2016 is
answered in the affirmative. The death penalties imposed by the
learned Sessions Judge for the offences punishable u/ss. 364-A
and 302 of the Indian Penal Code are confirmed. The appeals of the
accused are dismissed.
We place on record our appreciation for the valuable
assistance rendered by the learned Public Prosecutor and the
learned Counsel for the appellants. We also place on record the
appreciation of the Investigating Officer for conducting the
investigation in such a meticulous manner and the learned Public
Prosecutor appearing in the trial Court for efficiently conducting the
trial.
(JUSTICE MRS. SWAPNA JOSHI), (JUSTICE B.R. GAVAI).
Jes.
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The copies of the judgment are handed over to the accused in the
Court.
JUDGE. JUDGE.
