2020 (4) TMI 912 - SC - Indian Laws

Conviction for offences punishable Under Sections 120-B, 364A, 302, 201 read with Section 34 Indian Penal Code - death sentence - death in the company of the Accused - kidnapping - demand of ransom. Whether A-1 was arrested on 1st September 2014 - HELD THAT - The judgment in Abdul Subhan is not applicable to the facts of the present case for the reason that A-1 was not proved to be arrested on 1st September, 2014. In the reported judgment, the person who was said to have arrested the Accused prior to the actual date of arrest, was examined before the High Court. It was on the basis of the additional evidence recorded, the High Court observed that the statement made by Punwan, Accused, in his confession to the effect that he was apprehended on 1st March, 1938 is very probably true . The IO in his statement before the High Court could not convince the Court that he had not arrested Punnu, Accused, till 6th March, 1938. But the facts in the present appeals does not lead to any inference of the arrest of A-1 on 1st September, 2014. Whether Common intention was terminated before the demand of ransom and death of victim? - HELD THAT - In the present appeals, the facts speak volumes about the common intention shared by both the Appellants. Both the Accused planned the kidnapping and executed it together. A-1 called Dharmendra Yadav (PW-24), even before the victim could be kidnapped to make sure that the parents of the child were not at home. A-2 is the one who picked up the child from the gate of the Apartment building. They were together till at least 18 33 hrs. whereas; the tower location of the mobile of A-2 was Vinoba Bhave Nagar till 19.39 hrs., which is the area of the House of A-1. The conspiracy never came to an end when A-2 called Dr. Chandak (PW-1) demanding ransom, which was the reason of kidnapping the boy. Thus, the facts prove that both the Accused had a common intention to kidnap the child. Applicability of Section 106 of the Evidence Act - HELD THAT - The prosecution has discharged the onus of proof beyond reasonable doubt. It was then for the Accused to rebut the presumption of any other intervening fact before the death of the victim. In fact, none of the prosecution witnesses have been cross-examined on that possibility at all. Changing version of the prosecution case - HELD THAT - The Judgments of this Court reported as Karanpura Development Co. Ltd. 1956 (4) TMI 77 - SUPREME COURT and Sri Venkataramana Devaru 1957 (11) TMI 21 - SUPREME COURT have been relied upon to argue that an argument of fact cannot be raised for the first time before this Court. The reliance on such judgments is not tenable. In both the Judgments, no fact sought to be raised in appeal before this Court, was pleaded in civil proceedings. The reference to such judgments is inappropriate. In the present appeals, the arguments raised by the prosecution are on the basis of evidence led and available on record. Recovery of dead body at the instance of A-1 cannot be believed - HELD THAT - It is wholly immaterial whether the death was caused before 18 00 hrs. or afterwards as both the Accused were seen with the victim together and the victim was in an inert condition. The injuries and the placement of the boulder/stone on the face of the victim was to hide the identity of the victim. As per Dr. Avinash Waghmode (PW-27), the injuries were perimortem i.e. when the vitals of the victim were functioning - In the present case, the dead body was lying in a concealed place and that there was no possible explanation on behalf of the Accused as to how the body came to be concealed at that particular place, when the prosecution evidence proves that the Accused were near the place of recovery of dead body almost at the probable time of death. The effect of putting of incriminating evidence to the Accused Under Section 313 of the Code - HELD THAT - In the present case, there is overwhelming evidence that shows the victim to be in company of the Accused at five different places from 16 00 hrs. to 17 30 hrs - 18.00 hrs. Thereafter, the burden shifts to the Accused to explain the circumstances which occurred thereafter till the time of the recovery of dead body. There is no evidence to create a doubt on the prosecution version that somebody else had access to the victim before he died. The fact that the child was carried on shoulder by A-1 shows that the child was not in a position to move and was done to death in that condition which is corroborated by medical evidence of injuries being perimortem. Sentence - it is argued that this Court has imposed a higher standard of proof for the purposes of a death sentence over and above beyond reasonable doubt necessary for criminal conviction similar to residual doubt - HELD THAT - The argument is that since the Accused are young, aged about 19 years, and have no criminal antecedents, the sentence of death imposed upon them is not warranted. It is argued that A-1 surrendered at the first available opportunity and he was fully cooperative with the investigation, therefore, there are the mitigating circumstances to absolve them from noose - there are no merit in the argument that being young or having no criminal antecedents are mitigating circumstances. What is required to be examined is whether there is a possibility of rehabilitation and whether it is the rarest of the rare case where the collective conscience of the community is so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The manner of commission of murder when committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner are aggravating factors. The motive of the Accused to take life was to become rich by not doing hard work but by demanding ransom after kidnapping a young, innocent boy of 8 years. Thus, having considered all the circumstances and facts on record, we are of the considered view that the present case falls short of the rarest of rare cases where a death sentence alone deserves to be awarded to the Appellants. It appears to us in light of all cumulative circumstances that the cause of justice will be effectively served by invoking the concept of special sentencing as evolved by this Court in the cases of Swamy Shraddananda and Sriharan. Thus, the present appeals succeed in part. The Judgment and Order passed by the learned Trial Court and confirmed by the High Court convicting the Accused for the offences punishable Under Sections 302 and 364A read with Section 34 Indian Penal Code is hereby confirmed - appeals stand dismissed except modification in respect of sentence.

Summary

Issues Involved:
1. Evidence of last seen.
2. Discovery of incriminating facts.
3. Demand of ransom.
4. Motive and conspiracy.
5. Corroborative evidence.
6. Whether A-1 was arrested on 1st September 2014.
7. Whether common intention was terminated before the demand of ransom and death of the victim.
8. Applicability of Section 106 of the Evidence Act.
9. Changing version of the prosecution case.
10. Recovery of dead body at the instance of A-1.
11. The effect of putting of incriminating evidence to the accused under Section 313 of the Code.
12. Sentence.

Detailed Analysis:

1. Evidence of Last Seen:
The prosecution established that the victim, Yug, was last seen with the accused (A-1 and A-2) through testimonies of various witnesses including the watchman (PW-31), a shopkeeper (PW-2), and a neighbor (PW-23). The victim was seen with A-2 at the apartment gate and later with both A-1 and A-2 at different locations, including a petrol station and near Itangoti Lake. The identification of the accused was confirmed through a Test Identification Parade (TIP).

2. Discovery of Incriminating Facts:
The dead body of the victim was recovered based on the disclosure statement of A-1, who led the police to the concealed location under a bridge. Other incriminating articles, such as clothes and a T-shirt of the deceased, were recovered based on the disclosure statements of both A-1 and A-2.

3. Demand of Ransom:
Dr. Chandak (PW-1) received ransom calls demanding Rs. 10 crores and later Rs. 5 crores. The calls were traced to a PCO and a mobile number linked to the accused. The evidence included Call Detail Records (CDRs) and testimonies of witnesses who identified the accused making the calls.

4. Motive and Conspiracy:
The motive was established through the testimony of Naresh Machale (PW-6) and Sonam Meshram (PW-19), indicating A-1's grievance against Dr. Chandak for underpayment and overcharging patients. A-1's ambition to become rich and his plan to kidnap for ransom were corroborated by Sandeep Katre (PW-8) and other witnesses.

5. Corroborative Evidence:
The prosecution's case was supported by CDRs, CCTV footage, and forensic reports. The CDRs corroborated the calls made between the accused and other witnesses, establishing their presence at relevant locations and times.

6. Whether A-1 was Arrested on 1st September 2014:
The court found no evidence to support the claim that A-1 was in police custody from 18:50 hrs on 1st September 2014. The arrest was officially recorded on 2nd September 2014, and the defense failed to cross-examine prosecution witnesses on this point effectively.

7. Whether Common Intention was Terminated Before the Demand of Ransom and Death of the Victim:
The court held that the conspiracy did not terminate with A-1's surrender. Both accused acted in furtherance of their common intention to kidnap for ransom, and the ransom call made by A-2 was part of the ongoing conspiracy.

8. Applicability of Section 106 of the Evidence Act:
The court applied Section 106, placing the burden on the accused to explain the circumstances leading to the victim's death, as the victim was last seen in their custody. The prosecution's evidence established the chain of events, and the accused failed to provide a plausible explanation.

9. Changing Version of the Prosecution Case:
The court rejected the argument that the prosecution changed its version, finding that the arguments were based on evidence presented during the trial.

10. Recovery of Dead Body at the Instance of A-1:
The court upheld the recovery of the dead body based on A-1's disclosure statement, finding it credible and corroborated by other evidence. The argument that the manner of killing was not recorded in the disclosure statement was deemed immaterial.

11. The Effect of Putting of Incriminating Evidence to the Accused Under Section 313 of the Code:
The court found that the accused were given ample opportunity to explain the incriminating evidence during their Section 313 statements, but they failed to provide any substantial defense.

12. Sentence:
The court modified the death sentence to life imprisonment, directing that the accused serve a minimum of 25 years without remission. The court considered the young age of the accused and the possibility of rehabilitation but found the crime's brutality warranted a severe sentence.

Conclusion:
The court upheld the conviction of A-1 and A-2 under Sections 302 and 364A read with Section 34 of the IPC, but modified the sentence from death to life imprisonment with a minimum of 25 years without remission. The prosecution's evidence was found to be credible and sufficient to establish the guilt of the accused beyond reasonable doubt.