9911796707
TMI Blog2020 (4) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... peals 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their housing society, "Guru Vandana Apartment for short, 'Apartment'", who informed him that at about 3:45 pm, when he was sitting near the gate of the Apartment, an unknown, fair complexioned boy, aged about 20-25 years, wearing a red half sleeves T-shirt, full white pants with a white handkerchief wrapped around his face, came to him, riding a black scooty. This boy parked his vehicle near the footpath in front of the gate and asked Arun Parmanand Meshram (PW-31) whether Yug has come home. Arun Parmanand Meshram (PW-31) replied in the negative and asked him to go inside and find out for himself but the boy remained at the gate itself. He had worn the clothes (uniform) like that of the clothes of the employees of Dr. Chandak's clinic. After about 15 minutes, Yug, came in his school dress. He kept his school bag on chair meant for him and told Arun Parmanand Meshram (PW-31) to leave the school bag at his Apartment, who told him that he will require half an hour to do the same. Thereafter, he saw Yug going towards Chhapru Nagar Chowk along with the boy on his scooty. Arun Parmanand Meshram (PW-31) was under the impression that the said boy might be an employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for 7 years and to pay fine of Rs. 5,000/-. It is the said order of the learned Sessions Judge which was affirmed by the High Court. 6. The prosecution had led evidence of the boy, Yug, last seen in the company of the Accused from 16:15 hrs. approximately to 17:30 hrs. approximately on 1st September 2014. The post mortem was conducted on 3rd September 2014 between 12.00 hrs. to 13:45 hrs. by a team of three Doctors. Dr. Avinash Waghmode (PW-27) had been examined to prove the postmortem report (Ex. 103). The cause of death was found to be smothering and the time since death was 36 to 48 hours. There were as many as 26 injuries found on the dead body which included Injury Nos. 22 to 26 as post mortem injuries. Dr. Avinash Waghmode (PW-27) deposed that Injury Nos. 1-21 and 26 may have been perimortem injuries i.e. the injuries were caused during the activation and working of vital functions. With this background, the evidence of the prosecution is examined in the present appeals in the following manner: (A) The evidence of last seen (B) Discovery of incriminating facts (C) Demand of Ransom (D) Motive and Conspiracy (E) Corroborative Evidence 7. The undisputed location ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Yug had gone to his father's clinic. After sometime, Dr. Chandak's driver came to the building and inquired about Yug as well. Arun Parmanand Meshram (PW-31) told him that Yug had gone to his father's clinic with one of its employees. Dr. Chandak was thereafter contacted and he returned from his clinic. Mrs. Chandak also rushed to the Apartment. Later, the Police arrived at about 18:00 hrs. and started inquiry. 9. Arun Parmanand Meshram (PW-31) received notice regarding the conduct of Test Identification Parade for short, 'TIP' in the Central Jail premises for 25th September, 2014. He identified the boy standing at Sl. No. 4 as the same youngster who came to the Apartment on a purple scooty and took away Yug, in the TIP so conducted. This boy disclosed his name as Arvind Singh (A-2) to the Officer who was present there. In cross-examination, Arun Parmanand Meshram (PW-31) deposed that Dr. Chandak returned from his clinic on the day of incident at about 16:45 hrs. He denied that he was tutored to give evidence in the case. He also denied that the Officer present in the room at the TIP disclosed to him that A-2 was the same person in this crime who was ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposed that the boy took out a white handkerchief and tied it on his face. After 10-15 minutes, when Biharilal Sadhuram Chhabariya (PW-17) came back down, after having lunch, the boy and his vehicle were not present. It is at about 17:15 hrs., he received a telephone call from his wife that Dr. Chandak's son was kidnapped by a person wearing a red T-shirt and riding a purple scooty. Biharilal Sadhuram Chhabariya (PW-17) rushed home at around 17:30 hrs. and at about 19:00 hrs., Dr. Chandak met him in the campus of the building. Biharilal Sadhuram Chhabariya (PW-17) informed Dr. Chandak that he had seen a boy of the mentioned description standing by the road outside the Apartment. 12. Biharilal Sadhuram Chhabariya (PW-17) was called for TIP on 25th September, 2014 in Central Jail, Nagpur. He identified the boy standing at Sl. No. 4 as A-2. In cross-examination, he deposed that on the day of incident, he returned home at around 15:45-16:00 hrs. and went back to his shop again after lunch at about 16:15 hrs. on his Scooter. He denied that he had not seen the boy wearing a handkerchief on his face. 13. From the evidence of Arun Parmanand Meshram (PW-31) and Biharilal Sadhuram Chh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petrol station 15. The next link of prosecution evidence is of the Accused being in the company of Yug at Sunder Auto Center, Bhokara, on Koradi Road. The prosecution examined Hitesh Tulsiram Rathod (PW-30), Shrikant Walmik Sharma (PW-35), Pratik Rathi (PW-48), Ajay Aba Salunke (PW-38), Chitra Sanjay Kamat (PW-47) and Madhuri Permanand Dhawalkar (PW-34) in respect of the CCTV camera footage of Sunder Auto Centre, Bhokara, Nagpur. 16. Ms. Madhuri Permanand Dhawalkar (PW-34) is the witness who had filled petrol in the motorcycle of A-1 and A-2. She deposed that on 1st September, 2014 at about 16:00 hrs. - 16:30 hrs., she saw that two boys came to the petrol pump to take petrol for their Hero Honda bike. A minor boy was seen sitting in between both the riders. She deposed that the boy who was driving the bike wore an almond shirt and that the pillion rider was wearing a red one. The minor boy sitting in between them wore a sky blue colour T-shirt. The boy who was driving the bike paid the money for fuel and thereafter they went away. She deposed that both A-1 and A-2 present are the same motorbike riders who arrived at petrol pump on 1st September, 2014 to take fuel for their Hero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earby the Pump House of Itangoti Lake. Divya Chandel (PW-9) deposed that the motorbike was in a stationary condition and three persons were sitting on it. She further deposed that the motorbike riders started the vehicle after seeing her and her friend and proceeded ahead towards them. The boy who was driving the bike wore an almond colour shirt and the pillion rider wore a red one. The boy in between both riders appeared to be in a sleeping condition. The motorbike riders proceeded towards the Patansaongi area. She deposed that all these events occurred at about 17:30 hrs. On 25th September, 2014, she was called for the TIP. She identified A-1 and A-2 as the persons who were the motorbike riders and Yug from the photograph produced by the Police. In cross-examination by A-1, she deposed the road on which the motorbike riders were passing on the day of the incident leading from Dhapewada to Patansaongi village. In cross-examination by A-2, she deposed that she had seen the motorbike riders from a distance of 15 feet approximately. She deposed that initially she had not seen the back side of the motorbike riders, but had seen the same thereafter. 20. Namdeo Dhawale (PW-11) is a res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the person of A-1 and A-2 and the minor boy. He further deposed that Ex. 26 is the photograph of the same boy who was on motorbike by A-1 and A-2 on the day of incident. (B) Discovery of incriminating facts (i) Recovery of Dead Body 22. As per the prosecution, A-1 was arrested around 14:30 hrs. whereas A-2 was arrested around 16:30 hrs. on 2nd September, 2014. Mahesh Chandulal Fulwani (PW-28) is the witness of disclosure statement (Ex. 106) of A-1 along with Girish Malpani. Mahesh Chandulal Fulwani (PW-28) deposed that while passing from Lakadganj Police Station, he saw a crowd there which included some of his friends and, therefore, he stopped. The Police called him into the Police Station where the IO sought his consent to be a Panch. The Police personnel brought a person in the chamber of IO who disclosed his name as A-1 as well as his age and address. Mahesh Chandulal Fulwani (PW-28) identified A-1 as the person who was brought in the chamber of the IO. He deposed that he along with Girish Malpani; A-1, the IO and other police personnel boarded a police vehicle. At that time, Dr. Chandak followed them in his car separately. The police vehicle proceeded as per the directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue T-shirt of the deceased was taken from his person and thrown it in the Rivulet located within the vicinity of the Village Lonkhairi. A-2 showed his readiness to point out such place. One Arun is another Panch witness of A-2's disclosure statement. A-2 led the Panches and the Police to the spot mentioned, where he had thrown the clothes and pointed out such place. The IO called the sweepers for proceeding towards the spot and instructed them to search for the clothes. After searching for about 45 to 60 minutes, a sweeper fished out a blue colour T-shirt from the Rivulet. A-2 stated that it was the same T-shirt of the deceased which was thrown by him in the Rivulet. 25. Harsh Prakashchand Firodiya (PW-29) is a witness of disclosure statement of A-2 made on 9th September, 2014 at about 19:00 hrs. (Ex. 111). The same was made in the presence of another Panch witness as well, one Sunil Ajitmal Kothari. Harsh Prakashchand Firodiya (PW-29) deposed that A-2 took the Police and the Panches to his house, at some distance from Jaripatka Police Station. A-2's father was present outside, when A-2 entered his house. In his room, A-2 removed a bag from an almirah within which there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as who had seen the person making the call. The customer application form of phone No. 8380927706 is produced on record as Exs. 215/1 and 215/2 whereas the CDR is Ex. 214/1. There was a call at 20:38:03 hrs. of 31 seconds to Dr. Chandak (PW-1). Mohandas Mitharam Balani (PW-16) is the person who owns the PCO from where the second call was made. He deposed that there was a coin box telephone installed on the counter of his shop and that at around 20:30 hrs. on 1st September, 2014, a boy came to his shop on a bicycle, wanting to make a call from it. Mohandas Mitharam Balani (PW-16) saw that the boy was talking on the phone from his coin box said, "Paanch Karod Leke Ana" (Bring Five Crore Rupees). He also deposed that before he could pay more attention, the boy left the shop and went away on his bicycle. Mohandas Mitharam Balani (PW-16) thereafter received information about the conduct of a TIP on 30th October, 2014 at the Central Jail. He identified the person making the call from the persons present therein. Such person disclosed his name as Arvind Singh to the Magistrate. Vikas Mali (PW-41) is the witness who produced the CDR of the cellphone of Dr. Chandak (PW-1) vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Dr. Chandak was paying him a meagre salary of Rs. 3000/- whilst taking lot of work. Sonam Meshram (PW-19) also deposed that A-1 abused Dr. Chandak and said that he would teach him a lesson. 34. It appears that A-1 had an ambition to be rich at the earliest. Such intention is proved by the prosecution examining Sandeep Katre (PW-8), another friend of A-1's. Sandeep Katre (PW-8) deposed that A-1 was always in a hurry to become an affluent person. He stated that on the day of Raksha Bandhan in 2014, A-1 came to his house with A-2. A-1 inquired from him as to when and in what manner his employer carries the cash from the office. Sandeep Katre (PW-8) shared with him the relevant time during which his employer carries the bag of cash. A-1 thereafter told Sandeep Katre (PW-8) that whenever his employer starts proceeding with cash out of the office, he should inform him on cellphone so that he would be able to intercept PW-8's employer and loot the cash from him. A-1 stated that such cash would be distributed among all of them. On 14th August, 2014, Sandeep Katre (PW-8) received a phone call from A-1 as to whether his employer would carry cash from his office. He told A-1 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Chandak's employment as he was supposedly paying him a meagre salary. A-1 told her that she should not worry about the money as he would be earning huge amounts after completing a job. A-1 then told her that he was planning to abduct the son of a rich person. Sonam Meshram (PW-19) further deposed that on 1st September, 2014, she made call to A-1 from the cellphone of her room partner, but A-1 did not respond. At about 11:30 hrs., when she contacted A-1 again, he told her that he was busy in work. All these calls find mention in CDR of A-1. The record shows that calls were exchanged between Sonam Meshram (PW-19) and A-1 through the mobile of her friend and room partner at 07:31:55 hrs.; 08:45:56 hrs., 08:46:51 hrs., 11:36:46 hrs., 11:38:34 hrs. and 11:42:20 hrs. All these calls show tower location as that in Vinoba Bhave Nagar. There is also a call from A-1 to A-2 at 16:12:54 hrs. and the location of the tower is Guru Darshan Complex Chhapru Nagar, Lakadganj Nagpur. There are calls between A-1 and Ankush (A-3), the juvenile brother of A-1, at 16:17:44 hrs., 16:56:08 hrs. and 17:36:53 hrs. as well. 36. Nilesh Gosavi (PW-25) who was posted at Lakadganj Police Station as PSO ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (PW-38) for analysis in the forensic laboratory. Ajay Salunke (PW-38) prepared a report on 22nd November, 2014. He deposed that the CD had six videos files and such video files were continuous and not edited at any point of time. He matched the photographs on the CD with the photographs referred to by the Police. He prepared a report Exh. 160. As per the report, the person in the videos resembles the photographs (Ex. 2, 3, 4 and 5) i.e. the photographs of motor cycle, the two Accused A-1, A-2 and the deceased victim. 39. The CDRs of A-1 (Ex. 176/1) corroborate the six phone calls exchanged between A-1 and Sonam Meshram (PW-19) on 1st September, 2014 from 07:31:55 hrs. till 11:42:20 hrs., as deposed by Sonam Meshram (PW-19). Such call details further corroborate that Pankaj Khurpade (PW-15), an employee at Dr. Chandak's clinic had received a phone call from A-1 on his mobile wherein, A-1 inquired about Dr. Chandak and his wife. Such call was made soon before the kidnapping at 15:20:59 hrs. and stands corroborated by the statement of Dharmendra Yadav (PW-24). Dharmendra Yadav (PW-24) had deposed that he had received a call from A-1 to find out as to whether Dr. Chandak and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrs. No question has been put to A-1 in the statement Under Section 313 Code of Criminal Procedure that the deceased died before 18:00 hrs. It was argued that A-1 can be held guilty of an offence Under Section 302 Indian Penal Code only if death is proved to have been caused before 18:00 hrs. i.e. before he left the Patansaongi lake. Reliance was placed upon Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 and Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116. Further, a recent judgment of this Court reported as Reena Hazarika v. State of Assam (2019) 13 SCC 289 was also referred to, to contend that the statement of an Accused Under Section 313 Code of Criminal Procedure is required to be considered. Non-consideration therein would vitiate conviction. 43. It was argued that the deceased was sedated at the time of the act of his smothering, a fact made out from the CCTV footage played in the Court. However, the 13 abrasions on the face and neck of the deceased shows that he resisted smothering and, therefore, could not have been killed prior to 18:00 hrs. Since there is a possibility that the deceased died after 18:00 hrs. i.e. after the Accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed upon Jai Bhagwan and Ors. v. State of Haryana (1999) 3 SCC 102 and Suresh and Anr. v. State of U.P. (2001) 3 SCC 673 46. Further, it was submitted that the argument that the victim died before 18:00 hrs. is an argument raised in appeal before this Court for the first time and, therefore, the prosecution cannot be permitted to change the manner of commission of crime. Reliance was placed upon Karanpura Development Co. Ltd. v. Raja Kamakshya Narain Singh, etc. AIR 1956 SC 446 and Sri Venkataramana Devaru and Ors. v. State of Mysore and Ors. AIR 1958 SC 255. 47. Learned Counsel for A-1 also disputed the recovery of the dead body pursuant to the disclosure statement suffered by A-1. It was argued that in such disclosure statement, no fact has been disclosed about the manner of causing death. The disclosure statement has to be recorded in the exact words used by the Accused as held by this Court in State of Karnataka v. David Rozario and Anr. (2002) 7 SCC 728 It was argued that since the manner of killing is not mentioned in the disclosure statement, A-1 cannot be held guilty of causing death. 48. In the alternative, it was argued that the recovery of the dead body will only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke riders. It was also argued that the dead body was recovered at the instance of A-1. A-2 remained near the bridge and did not take any part in the commission of the crime of murder of the minor child and, therefore, in all probabilities, the crime has been committed by A-1 between 17:30 hrs. to 18:00 hrs. to wreak vengeance upon the complainant. 51. It was also argued that veracity of demand of ransom by A-2 was doubtful. The FIR was lodged at 17:10 hrs. but the IO did not make any arrangement for the recording of the ransom call. The IO did not take the voice sample of the Accused for identification by Dr. Chandak (PW-1). A-2 was said to be identified by Mohandas Mitharam Balani (PW-16) on 30th October, 2014 after much delay. Further, the statement of Mohandas Mitharam Balani (PW-16) was also doubted, that he had heard A-2 raising a demand of ransom as a PCO would have some kind of privacy mechanism between the caller and the owner. 52. It was further argued that the disclosure statement in respect of articles said to be concealed in house of A-2 did not stand proved as his house was locked after 3rd September, 2014. Haribhau Dahake (DW-1), the landlord of the said house depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done at any point earlier than the arrest. Still further, A-1 had made a call to N.T. Gosawi (PW-25) at 19:49:06 hrs. An Accused in custody will not be permitted to make a call to a Police official. It corroborates the stand of the prosecution that A-1 was arrested on 2nd September, 2014. Still further, the IO had admitted in the cross-examination that he called A-1 in the Police Station on 1st September, 2014 for investigation. He denied that A-1 was in police custody. He deposed that A-1 visited police station on the day after he had called A-1 on his cell phone. A-1 was called for inquiry as he was one of the former employees of the clinic of Dr. Chandak. 56. A witness is required to be cross-examined in a criminal trial to test his veracity; to discover who he is and what his position in life is; or to shake his credit, by injuring his character, although the answer to such questions may directly or indirectly incriminate him or may directly or indirectly expose him to a penalty or forfeiture (Section 146 of the Evidence Act). A witness is required to be cross-examined to bring forth inconsistencies, discrepancies and to prove the untruthfulness of the witness. A-1 set up a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a Rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. 58. Lord Halsbury, in a separate but concurring opinion, held as under: My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to put one's own version in cross-examination of opponent. The effect of non-cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. [Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., AIR 1958 P & H 440] 16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60], it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian [A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Cal 359] has laid down that the party is obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption against the Accused and also throws a burden on him to rebut the said presumption. Under that Section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the court shall regard the non-existence of such circumstances as proved till they are disproved........ 62. In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563, this Court while examining an argument of the Accused that he was medically insane person, it was held that it is a fundamental principle of criminal jurisprudence that an Accused is presumed to be innocent and, therefore, the fact that the Accused was incapable of knowing the nature of his act, the burden of proving the existence of circumstances bringing the case within the exception Under Section 105 of Evidence Act lies on the Accused. It was held as under: 5. .....It is a fundamental principle of criminal jurisprudence that an Accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the Accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the Accused caused dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1 (Ex. 176/1) shows that his mobile phone was always in the range of Police Station Lakadganj from 18:50 hrs. The best witness to seek information of his arrest was the IO. He denied the arrest on 1st September, 2014. The other witness who could be cross-examined was Manoj Thakkar (PW-4). But he was not cross examined in this respect. At this stage, it is not open to this Court to infer any such fact, in the absence of any evidence to the contrary on record. He had access to his mobile all through before his arrest on 2nd September, 2014. An Accused will not be provided access to mobile phone when in custody. He has called N.T. Gosawi (PW-25) at 19:49:06 hrs. on 1st September, 2014. In fact, the statement of DW-1, the mother of the A-1, contradicts the entire argument of A-1 voluntary going to police station on 1st September, 2014. She deposed that 4-5 policemen had taken A-1 from her house as per the information of Ankush, the juvenile. Thus, the Accused has not been able to create doubt in respect of his arrest on 2nd September 2014. 66. Pankaj Khurpade (PW-15) deposed that he was employed as an attendant in the clinic of Dr. Chandak. He is acquainted with other staff members o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a son of well-to-do dentist couple. Initially, A-1 conspired with Sandeep Katre (PW-8) but on his developing cold-feet, he associated A-2 in his nefarious design to make money by the abduction of a young child. The conduct of A-1 in seeking assistance of Sandeep Katre (PW-8) and the calls exchanged between Sonam Meshram (PW-19) and A-1 shows the desperation of A-1 to kidnap for ransom. The intention to kidnap was only with a motive of becoming rich by obtaining a ransom. To achieve that motive, A-1 had associated A-2, a fact deposed by Sandeep Katre (PW-8) and Sonam Meshram (PW-19). A-1 and A-2 were together at different stages of the commission of the crime from almost 16:00 hrs. till almost 18:00 hrs., and later till 18:33:59 hrs., when both of them were at the house of A-1 in Vinoba Bhave Nagar. Such facts have come on evidence from the testimony of Arun Meshram (PW-31); Rajan Tiwari (PW-2); Rupali (PW-23)-the neighbour of A-1; Ms. Madhuri Permanand Dhawalkar (PW-34)-the dispenser at the petrol pump; Divya Chandel (PW-9); Shriram Shankarrao Khadatkar (PW-10) and Namdeo Dhawale (PW-11) and the call details of both the Accused. It has also come on record that A-1 and Sonam Meshra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, 1938. But the facts in the present appeals does not lead to any inference of the arrest of A-1 on 1st September, 2014. ii) Whether Common intention was terminated before the demand of ransom and death of victim 72. The argument that the conspiracy terminated the moment, A-1 surrendered in the Lakadganj Police Station at 18:50 hrs. on 1st September, 2014, is again not tenable. In Nalini's case itself, it has been held as under: 662. ... It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences. 73. The said judgment was quoted with approval in Central Bureau of Investigation and Anr. v. Mohd. Parvez Abdul Kayuum and Ors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is attributed to the individual Accused, Section 34 Indian Penal Code will be attracted as it essentially involves vicarious liability but if participation of the Accused in the crime is proved and a common intention is absent, Section 34 Indian Penal Code cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case. In Suresh, this Court held that the concept of presence of the co-Accused at the scene is not a necessary requirement to attract Section 34 Indian Penal Code. The one line in the para can be read in isolation to argue that physical presence of an Accused is necessary. In fact, this Court held as under: 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all Accused persons, besides the ultimate criminal act because for that individual act law takes care of making such Accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the Accused persons sharing the common intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke and the ease with which the Accused could prove them, are all matters that must be taken into consideration. The Section cannot be used to undermine the well-established Rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. This Court held as under: 9. This lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the Accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the Accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the Accused and they took him out of that area, the Accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the Accused have murdered him. Such inference can be disrupted if the Accused would tell the Court what else happened to Mahesh at least until he was in their custody. 79. This Court in Sucha Singh held as under: 19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the Accused beyond reasonable doubt, but the Section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the Accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ika and Gargi v. State of Haryana (2019) 9 SCC 738, were to argue that the last seen evidence will not absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of consideration of facts of which the burden of proof may lie upon the Accused. However, the principles laid down in the aforesaid judgment are not applicable to the facts of the present case, when the prosecution has proved the act of kidnapping and the last seen evidence soon before the approximate time of death of victim. Therefore, 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. iv) Changing version of the prosecution case 82. The Judgments of this Court reported as Karanpura Development Co. Ltd. and Sri Venkataramana Devaru have been relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is admissible evidence when the Accused is in police custody. The manner of killing is inculpatory and, therefore, not admissible in evidence. In such a case, the mere fact that the disclosure statement does not record the manner of killing of the victim is wholly inconsequential. Thus, we do not find any merit in the argument raised by the learned Counsel for A-1. 86. The reliance of Mr. Chaudhary on the Judgment of this Court in Bakhshish Singh v. State of Punjab (1971) 3 SCC 182 is clearly erroneous. In the said case, the recovery of dead body was not believed as it was found to be possible for the Accused to know the place where dead body was thrown in the river as broken teeth and parts of human body was lying near the place of recovery. 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. vi) The effect of putting of incriminating evidence to the Accused Under Section 313 of the Code. 87. In R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the complainant and his family. However, such an argument is wholly untenable as he is the one who picked up the child from the gate of the Apartment where the family of the child used to stay and had been seen by a number of persons up to 17:30 hrs. It is thereafter that a ransom call is proved to have been made by A-2 on the basis of statement of Mohandas Mitharam Balani (PW-16) from whose PCO, A-2 made the call. He was an active participant in the orchestration of the crime with A-1. Still further, the blue T-shirt worn by the victim was recovered on the basis of disclosure statement of A-2. Such disclosure statement corroborates that it is he who had taken of the shirt and thrown it in a rivulet/nullah which was at a distance of 5 kms. from the place of occurrence. 90. An argument was raised that the child was kidnapped for ransom but there was no intention to take life of the child, therefore, an offence Under Section 364A is not made out. To appreciate the arguments, Section 364A of the Indian Penal Code is reproduced as under: 364A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of residual doubt in a judgment reported as Ravishankar v. State of Madhya Pradesh (2019) 9 SCC 689, held that "another nascent evolution in the theory of death sentencing can be distilled. This Court has increasingly become cognizant of "residual doubt" in many recent cases which effectively create a higher standard of proof over and above the "beyond reasonable doubt" standard used at the stage of conviction, as a safeguard against routine capital sentencing, keeping in mind the irreversibility of death". 95. Mr. Rohatgi, learned Senior Counsel representing the State submitted that apart from aggravating circumstances considered by the learned Sessions Judge and the High Court, there is an additional fact brought on record of this appeal by an affidavit of Senior Police Inspector, Police Station Lakadganj, Nagpur City that the A-1 is in fact an Accused in FIR No. 3 of 2015 for the offences Under Sections 457, 380, 109, 120-B and 34 of Indian Penal Code. A supplementary charge sheet has been filed against A-1 on 30th July, 2019. The allegations are that two Accused who committed house burglary were together with A-1 in the cell of Police St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances which speak in favour of the offender. 98. Further, this Court ruled that: (SCC p. 489, para 38) (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the "offender" also require to be taken into consideration along with the circumstances of the "crime". (iii) Life imprisonment is the Rule and death sentence is an exception. In other words 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, and only 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. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 99. Later this Court in Swam ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
