Full Judgment Text
Judgment apeal171.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NOS. 171/2017, 409/2017,
410/2017 AND 220/2016.
….
CRIMINAL APPEAL NO. 171/2017.
Akshay Kailash Purohit,
Aged about 19 years,
Occupation Labour, resident
of Sai Nagar, Telhara, Tahsil
Telhara, District Akola.
Convict No. C4884, detained
in Central Prison, Amravati. ... APPELLANT.
VERSUS
State of Maharashtra,
through P.S.O., Police Station
Telhara, Tahsil Telhara,
District Akola. … RESPONDENT.
–
Shri R.M. Daruwala, Advocate (Appointed) for the Appellant.
Shri S.S. Doifode, A.P.P. for the Respondent State.
WITH
CRIMINAL APPEAL NO. 220/2016.
Akshay @ Santosh Datta Pachange,
Aged about 19 years,
Occupation Labour, resident
of Gadegaon Road, Telhara, Tahsil
Telhara, District Akola. ... APPELLANT.
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VERSUS
State of Maharashtra,
through P.S.O., Police Station
Telhara, Tahsil Telhara,
District Akola. … RESPONDENT.
–
Shri S.V. Sirpurkar, Advocate for the Appellant.
Shri S.S. Doifode, A.P.P. for the Respondent State.
WITH
CRIMINAL APPEAL NO. 409/2017.
State of Maharashtra,
through P.S.O., Police Station
Telhara, Tahsil Telhara,
District Akola. ... APPELLANT.
VERSUS
Akshay @ Santosh Datta Pachange,
Aged about 19 years,
Occupation Labour, resident
of Gadegaon Road, Telhara, Tahsil
Telhara, District Akola. … RESPONDENT.
–
Shri S.S. Doifode, A.P.P. for the Appellant State.
Mrs. Jyoti Wajani, Advocate for the Respondent.
WITH
CRIMINAL APPEAL NO. 410/2017.
Sagar s/o Kedarkumar Bagani,
Aged about 31 years, Occupation
Business, resident of Telhara,
Tq. Telhara, District Akola. ... APPELLANT.
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VERSUS
1.State of Maharashtra,
through Police Station Officer,
Police Station Telhara, Tahsil Telhara,
District Akola.
2.Akshay @ Santosh Datta Pachange,
Aged about 21 years, Occupation
Labour, resident of Gadegaon Road,
Telhara, Tahsil Telhara,
District Akola.
3.Akshay Kailash Purohit,
Aged about 11 years,
Occupation Labour, resident
of Sai Nagar, Telhara, Tahsil
Telhara, District Akola.
(Respondent Nos. 3 presently
in jail at Akola). … RESPONDENTS.
–
Mrs. P.M. Chandekar, Advocate for the Appellant.
Shri S.S. Doifode, A.P.P. for the Respondent No.1 State.
Shri S.V. Sirpurkar, Advocate for the Respondent No.2.
CORAM : Z. A. HAQ AND
VINAY JOSHI, JJ.
Date of reserving the Judgment : 20.03.2019
Date of pronouncing the Judgment : 16.04.2019
JUDGMENT (PER VINAY JOSHI, J.) :
These appeals are arising out of judgment and order of
conviction dated 01.06.2016, passed by the learned Sessions Judge,
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Akot in Sessions Trial No.21/2014. Accused No.1 Akshay
Pachange and Accused No.2 – Akshay Purohit, were charged for
offences punishable under Sections 363, 364A, 302, 201, 120B read
with Section 34 of The Indian Penal Code, and Section 66A of The
Information Technology Act.
After holding full fledged trial, the learned Sessions
Judge has convicted accused No.1 for offences punishable under
Sections 363, 120B and 201 read with 34 of The Indian Penal Code,
whilst acquitted him for the offence punishable under Sections 302,
364A of The Indian Penal Code and Section 66A of The
Information Technology Act. Likewise, the learned Sessions Judge
has convicted accused No.2 for the offence punishable under
Sections 302, 363, 120B, 201 of The Indian Penal Code and
acquitted him for the offence punishable under Section 364A of The
Indian Penal Code and Section 66A of The Information Technology
Act. Different quantum of sentences have been awarded for the
proved offences, and directed to run them concurrently.
2. Accused No.2 Akshay Purohit has filed Criminal
Appeal No. 171/2017, challenging the order of conviction for the
offences stated above. Accused No.1 Akshay Pachange has also
challenged his conviction and sentence by filing Appeal No.
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220/2016. The State has challenged acquittal of Accused No.1
Akshay Pachanage for offence punishable under Sections 302, 364A
of the Indian Penal Code, vide Criminal Appeal No. 409/2017.
Likewise, the original informant vide Criminal Appeal no. 410/2017,
has challenged the acquittal of both the accused for respective
offences, and also sought for enhancement of the punishment.
3. During the trial, Accused No.2 refused to take legal
assistance from the Legal Aid Panel. The learned Sessions Judge
made every endeavor to convince him for seeking assistance of a
competent Lawyer from the panel of Legal Aid, but, he refused.
Since accused No.2 was under trial prisoner, and there was
considerable delay in the progress of the trial, the learned Sessions
Judge aptly appointed Advocate Ajit Deshpande as Amicus Curiae
to defend accused no.2. It emerges from the record that the learned
Sessions Judge took every care to see that the accused were properly
and ably represented and every opportunity was given to put up
their defence. In the appeal, no grievance is made that there was
no proper representation to accused no.2 before the trial Court. We
are satisfied from the record that every opportunity was given to
accused no.2 Purohit, and he was properly defended.
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4. The prosecution case, as emerges from the record, can
be stated as follows :
The informant Sagar Bagani, was running a hardware
shop at village Telhara, District Akola. His residence was abutting
his shop precisely on the rear side of his shop. He was residing with
his family, including his minor daughter Vishaka @ Lado,
( deceased) aged 2½ years. The informant had employed five
servants at his shop which included Accused no.1 – Pachange.
Minor Lado was looked after by accused no.1. The informant had
specifically directed accused no.1 that the child shall not be taken
anywhere except the shop and residence. On 27.02.2014, around 6
p.m., the informant was at his shop with the child. He asked the
accused no.1 to leave the child at his residence with her mother.
After half an hour, the informant returned to his residence after
closing the shop, but, did not find his daughter Lado. He searched
for Lado, and also tried to contact accused no.1. Within short
while, he had received a phone call from accused no.1, informing
that the accused no.2 – Purohit, had assaulted him, snatched Lado
and had taken her away. Immediately, the informant rushed to the
place i.e. near petrol pump, where he found accused no.1. On
enquiry, the accused no.1 gave evasive answers. The informant
suspected foul play, hence, he took accused no.1 to the police
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station. The Informant suspected that accused no.1 alongwith
accused no.2, had hatched conspiracy and had kidnapped Lado.
5. Accordingly, P.W.1 informant Sagar Bagani lodged the
report regarding kidnapping of his daughter Lado by accused no.1
Pachange and accused no.2 Purohit. On the basis of said oral report
regarding cognizable offence, initially crime came to be registered
vide crime No.121/2014 for the offence punishable under Section
363 read with Section 34 of the Indian Penal Code and P.W.13 P.I.
Nikam, commenced investigation.
6. During the course of investigation, the informant had
shown the place where he had entrusted Lado to accused no.1 of
which police drew panchnama. While accused no.1 was in
custody, he showed his willingness to show the place where he had
handed over Lado to accused no.2, of which memorandum
panchnama was drawn. Accused no.1 led police party towards the
Ther Road and took them to a field of gram. The police seized two
bicycles, one sandal of small child, one broken knife blade from said
place under panchnama. Accused no.2 was arrested around 3.30
p.m. on the following day i.e. on 28.02.2014. His blood stained
clothes were seized under panchnama. Accused no.2 expressed
desire to show the place where dead body of minor Lado was
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buried. Police recorded his memorandum statement. Accused no.2
led police to the field where maize crop was sown. He had shown
the place where Lado was buried, which was in between two rows
of maize crops. Accused no.2 had removed the soil under which
naked body of Lado was found. There was white colored string
around her neck. Police had collected mud from said place and had
drawn panchnama. Again after few days, accused no.2 expressed
that he is ready to show the place where he had concealed certain
articles. Accused no.2 led police to a field where maize crop was
sown, and there was some waste material near the Neem tree.
Accused no.2 removed the waste material and took out one Sandal
and clothes of child, so also he took out one broken grip of knife.
Police had seized all these articles and panchnama was drawn. The
seized articles were sent for chemical analysis. Statement of
relevant witnesses were recoded. After completion of investigation,
as there was sufficient material against both accused, police filed
final report in the Court of concerned Magistrate.
7. On trial, both the accused denied the guilt and put the
prosecution to the task of establishing the charges levelled against
them. The prosecution examined fifteen witnesses to establish the
charges levelled against the accused including the informant, panch
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witnesses, medical officer, witnesses who had last seen the victim
alongwith the accused and investigating officers. The prosecution
also banks upon certain documents of which contextual reference is
made.
8. The Trial Court recorded statement of the accused for
obtaining their explanation on incriminating material. Accused no.1
took a specific defence. It is his stand that on 27.02.2014, he was
proceeding with minor Lado towards the house of owner
(informant), however, on the way he was accosted by three
unknown persons, who assaulted and forcibly snatched Lado. After
said incident, he had conveyed about the incident to the informant
and had gone to police station. He had given report regarding the
incident, however, police had not taken cognizance. He was sent
for medical examination, since he had sustained injuries in the
assault. In short, he stated that he himself was the victim of the
incident, however, at the behest of the informant, he was falsely
implicated in the crime. Defence of accused no.2 – Purohit, is of
simplicitor denial and of false implication. He raised a faint plea of
alibi.
9. At the conclusion of the trial, the learned Trial Judge
convicted both the accused for the offence punishable under Section
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363 read with Section 34 of the Indian Penal Code and sentenced
them to suffer rigorous imprisonment for five years and fine of
Rs.5000/ and in default to suffer further rigorous imprisonment for
six months. The learned trial Judge also convicted both the accused
for the offence punishable under Section 201 of the I.P.C., and
sentenced them to suffer R.I. for 3 years and fine of Rs. 3500/, with
stipulation of default. Both are also convicted for the offence
punishable under Section 120B of the I.P.C. and sentenced to suffer
R.I. for 3 years and fine of Rs. 2000/ with default clause. The
learned trial Judge convicted accused no.2 Purohit for the offence
punishable under Section 302 of the I.P.C. and sentenced him to
suffer imprisonment for life and to pay fine of Rs. 10,000/, in
default further R.I. for eight months. However, the trial Judge
acquitted accused no.1 Pachange, for the offence punishable under
section 302 of the I.P.C. The trial Court acquitted both the accused
for the offence punishable under Section 364A of The I.P.C. and
Section 66A of The Information Technology Act.
10. Heard the learned Advocates for the parties,
exhaustively. With the assistance of learned Advocates appearing
for the parties, we have scrutinized the entire material on record.
Several citations have been referred by the learned Advocates.
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However, we do not wish to reproduce or refer to all of them, which
would unnecessarily flex the size of the judgment. Needless to
mention that we will be referring the judgments, which we consider
to be relevant.
11. Learned Public Prosecutor for the State, submitted that
in the present case the prosecution has proved all the incriminating
circumstances beyond reasonable doubt. He further submitted that
the prosecution has also established complete chain of events which
has proved every hypothesis about the guilt of accused and the
evidence on the circumstance of deceased last seen in the company
is finally established. He submitted that the time gap between the
deceased and accused seen together and the death of child occurring
is so narrow that it cannot lead to any other conclusion except that
the accused is guilty. He argued that several incriminating articles
were seized at the instance of the accused, particularly dead body
was recovered on memorandum under Section 27 of the Evidence
Act at the instance of the accused No.2. He further submitted that
the chemical analysis report and SMS for ransom are proved beyond
doubt to establish the guilt of the accused.
Learned Advocate for the informant argued on similar
line and urged for capital punishment.
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12. The learned Advocates for the accused No. 1 and
accused No. 2 advanced their submissions separately regarding the
respective accused, and generally on the prosecution case. It is
submitted that the prosecution case is full of lacuna. The witness on
last seen theory is planted and unreliable. Stock panch witness is
examined for recovery. The learned Advocates further submitted
that all the witnesses are acquainted with informant and they have
falsely deposed at the behest of the informant. It is submitted that
accused no.1 himself is victim of incident but is falsely implicated in
the crime. It is further submitted that the alleged recoveries at the
instance of accused are farcical and planted. The place from where
dead body was recovered was already known to the police. In the
totality of circumstances, it is submitted that prosecution case is
fabricated; chain of circumstances is incomplete and therefore, both
the accused deserve acquittal by allowing their respective appeals.
13. After examining the matter, we find that this case is
an example of heartless and perverse youth which recedes to the
lowest level. This case demonstrates distracted mind of youth,
which has left the informant and his family in sufferings.
14. 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 well crystallized by Their Lordships of the
Apex Court in the case of Sharad Birdhichand Sarda .vs. State of
Maharashtra (AIR 1984 SC 1622) . At the inception, it will be
appropriate to refer to the following observations of Their Lordships
in paragraph nos. 152 and 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
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that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency.
(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
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conclusion consistent with the innocence of the accused and
must show that in all human probability the acts must have
been done by the accused.”
15. The principle for basing conviction on the basis of
circumstantial evidences has been discussed in number of
decisions and the law is well settled that each and every
incriminating circumstance must be clearly established by reliable
and clinching evidence and the circumstances so proved must form
a chain of events from which the only irresistible conclusion about
the guilt of the accused can be safely drawn and no other hypothesis
against the guilt is possible. Various judgments clearly sounded a
note of caution that in a case depending largely upon circumstantial
evidence, there is always a danger that conjecture or suspicion may
take the place of legal proof. The Court must satisfy itself that
various circumstances in the chain of events have been established
clearly and such completed chain of events must be such as to rule
out a reasonable likelihood of the innocence of the accused. It has
also been indicated that when the important link goes, the chain of
circumstances gets snapped and the other circumstances cannot in
any manner, establish the guilt of the accused beyond all reasonable
doubts.
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16. At the inception, the learned Advocate for the accused
no.2 submitted that mere suspicion cannot take the shape of proof,
but, to establish the offence, the prosecution has to prove the case
beyond reasonable doubt. In this regard, he relied upon the
reported judgment in case of Sujit Biswas .vrs. State of Assam
[(2013) 12 SCC 406]. In the said case, the Hon'ble Supreme Court
held that it is the duty of the Court to ensure that mere conjectures
or suspicion do not take place of legal proof. Clear, cogent and
unimpeachable evidence is must before the accused is condemned
as convict.
17. Contextually, we wish to state that while appreciating
the oral testimony of witnesses and the circumstantial evidence in a
criminal case, the Courts shall advert to the observations laid down
in case of State of Punjab vrs. Jagbir Singh, Baljit Singh & Karam
Singh [1974 (3) SCC 277] wherein it is laid down as under :
"A criminal trial is not like a fairy tale wherein one is free
to give fight to one's imagination and fantasy. It concerns
itself with the question whether the accused arraigned at
the trial is guilty of the crime with which he is charged.
Crime is an event in real life and is the product of
interplay of different human emotions. In arriving at the
conclusion about the guilt of the accused charged with the
commission of a crime, the court has to judge the evidence
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by the yardstick of probabilities, its intrinsic worth and
the animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although the
benefit of every reasonable doubt should be given to the
accused, the courts should not at the same time reject
evidence which is ex facie trustworthy on grounds which
are fanciful or in the nature of conjectures."
18. Keeping in mind these principles of law, the evidence
needs to be scrutinized. However, before adverting to the evidence,
we find it apposite to make brief reference of undisputed facts, for
quick appreciation. There is no dispute that the deceased Lado was
daughter of the informant, the accused no.1 Pachange was servant
of informant and was looking after the child, on the date of
occurrence i.e. 27.02.2014, the informant had entrusted Lado to
accused no.1 for leaving the child at his residence. Besides that the
homicidal death of Lado is, undisputed. In the compass of these
admitted facts, we proceed further.
19. The prosecution relied on various of circumstances to
establish the charges. We have culled out the following
circumstances on which the prosecution relied and claimed that
these circumstances are firm, consistent and the chain is complete.
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1) Homicidal death of child by strangulation.
2) Both the accused were well acquainted with each other;
3) Entrustment of child to accused no.1.
4) Both the accused were last seen together with the child.
5) Child died while in custody of accused no.2.
6) Dead body of the child was recovered at the instance of
accused no.2.
7) Accused no.1 disclosed the place of occurrence from
where incriminating articles were seized.
8) Recovery of incriminating articles at the instance of
accused no.2.
9) Seizure of blood stained clothes of accused no.2.
10) Finding of blood Group “B” on the clothes of accused
no.2, which was the blood group of deceased Lado.
11) False and misleading explanation by accused no.1.
12) Demand of ransom.
13) Motive of ransom.
20. In order to establish aforesaid circumstances, the
prosecution has examined fifteen witnesses. The trial Court has
analyzed in detail the evidence of all the witnesses. We have
minutely gone through the evidence of relevant witnesses and all
documents which are held to be proved in the case.
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21. We will deal with each of the circumstance
independently. Since the circumstance of death of the child being
homicidal, is not disputed, we are not discussing the medical
evidence in detail.
22. It is the case of prosecution that Lado met with a
homicidal death. Defence has not challenged the homicidal death of
Lado, however, to establish charge of murder, it is prerequisite for
the prosecution to independently establish that the deceased met
with a homicidal death. In this regard the prosecution has
examined P.W.10 – Dr. Tapadia, who conducted autopsy around
8.50 p.m. on 28.02.2014. Besides that, the prosecution relied on
postmortem notes [Exh.99] and inquest panchnama [Exh.73]. A
bare look at the evidence of Dr. Tapadia, discloses that the cause of
death is due to “Asphyxia due to strangulation.” On external
examination, following injuries were found on the person of the
deceased :
(a) Abrasion 2.5 x 4 cms reddish in colour, Lft side of
nose above the lip.
(b) Ligature mark in form of abrasion with contusion 22
cm by 36 mm reddish brown in colour encircling the
neck upper part, prominent and broad anteriorly,
hemorrhage under the subcutaneous tissue under
mark.
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(c) Laceration circular 3 mm by 1 mm on right wrist
extensa surface.
At the time of postmortem examination, a white ligature was found
on the neck of the deceased. The defence has not projected any
other possibility of cause of death. The cause of death by way of
strangulation is not challenged. Since the death was by way of
strangulation, much exercise is not required to be undertaken, to
decide the nature of death. Therefore, we have no hesitation to
hold that the prosecution has ably proved that Lado died a
homicidal death.
23. This brings us to the evidence of informant – P.W.1 –
Sagar Bagani, who is father of ill fated child. It is his evidence,
that at the relevant time, he had entrusted Lado to his servant,
accused no.1, for leaving the child at his house. Accused no.1 had
taken the child somewhere else than leaving the child at the house.
As the child was not found in the house, he called accused no.1 and
learnt that accused no.2 had snatched the child and went away.
Since accused no.1 gave evasive answers, informant suspected and
took him to police station. Evidence of this witness is on the point
of entrustment of the child with accused no.1, and disclosure by
accused no.1 that the child was taken away by accused no.2.
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24. So far as the first aspect of entrustment is concerned, it
is not in dispute. Moreover, the informant has stated that the
accused no.1 had disclosed that the child was snatched by accused
no.2. It is the specific stand of accused no.1 that while he was on
the way along with the child, towards the informants house, three
unknown persons had assaulted him and had snatched the child.
Rather his defence is that he himself is victim of incident, but, has
been falsely implicated.
25. In support of said defence, the learned Advocate for the
accused no.1, has taken us through several admissions and has
referred to some documents to impress that accused no.1 sustained
bleeding injuries in the assault. True, there is material to disclose
that accused no.1 sustained injuries at relevant time. However, that
by itself is not sufficient to accept his contention and it requires
deeper scrutiny of all the circumstances to find worth of his
contention. The learned Advocate for the accused no.1 submitted
that the prosecution has not explained the injuries on the person of
accused, therefore, the prosecution's case is doubtful. In this regard
the defence placed reliance on the reported judgment in the case of
Lakshmi Singh and others .vrs. State of Bihar '(1975) 4 SCC
394)]. It was a case of assault in which the prosecution/victim
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failed to explain the injuries on the person of accused. In such
peculiar facts, it was held that the failure of prosecution to explain
the injuries caused to the accused would weaken the prosecution's
case. The case in hand has peculiar facts of its own. It is not a case
of an assault on prosecution witness, on which one could expect that
the witness should explain the injuries sustained by accused. It is to
be remembered that this is a case based on circumstantial evidence.
There are no witnesses who have seen the incident. All the
witnesses are on various circumstances. In such facts it is not
possible to expect the explanation from the prosecution witnesses.
Certainly the law would not expect such evidence in the facts of the
present case. Therefore, in the peculiar facts of this case, the
general proposition pressed into service would not apply.
26. It requires scrutiny of the prosecution's evidence to
decide the trustfulness of explanation given by the accused no.1.
Rather it requires serious consideration because, apparently accused
no.1 sustained certain injuries on his person at relevant time.
However, the learned prosecutor vehemently pointed out that the
accused no.1 is hiding the real state of affairs, and has given evasive
and different statement on said point. The circumstances reveal
that accused no.1 can only throw light on said aspect, therefore, we
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have gone through the relevant portion of the evidence. We find
that each time accused no.1 has changed colors. While answering
question no.11 in the statement recorded under Section 313 of the
Criminal Procedure Code, he came out with a story that at the
relevant time, it being Mahashivratri, he had gone to the temple
with the child, where people assaulted him. He stated that two
persons had assaulted and had snatched the child. At first blush
itself, this explanation seems to be unacceptable. When it was
festival of Mahashivratri, presumably there would be heavy rush in
the temple, and at such a busy place, the incident of snatching
child would not have gone unnoticed by the devotees. Pertinent to
note that the incident took place at Telhara, which is a small village.
Naturally most of the villagers are known to each other. If such
incident of snatching of child took place in the evening at the
temple, then the news would spread like a wind in the village.
However, the said story does not get support from any corner,
hence, it is unreliable.
27. The accused no.1 also gave written explanation in his
statement under Section 313 of the Code. This time he says that at
relevant time, he was proceeding from shop towards house of the
informant on bicycle with the child, but, three persons accosted him
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and forcibly snatched the child. Notably, this time he has changed
the alleged place of incident. Earlier he stated that the so called
incident of snatching took place at a temple, whilst later, he stated
that it occurred in between the shop and house of the informant.
28. Contextually, we may note that the informant's house
was just behind the shop, meaning thereby one is not required to
pass long distance to reach the house. It has come in the evidence
that his residence is just 2025 feet behind the shop. The said aspect
is not disputed by the defence. Therefore, even if it is presumed for
a moment that while accused no.1 was carrying the child from shop
to the house, and the incident occurred on the way, then certainly
the nearby persons would have witnessed the incident. The alleged
occurrence took place around 6 p.m. in the evening. In the
circumstances, if the horrifying incident of snatching a child had
taken place at a distance of 20 to 25 feet away from the informant's
shop, then certainly there would have been commotion and
informant would have known of the incident then and there only.
In that case, naturally accused no.1 would have gone to the owner's
shop to inform about the incidents, instead of going towards the
petrol pump which is quite away. Therefore, apparently the accused
no.1 was hiding the reality, and gave untrue and false explanation.
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Therefore, explanation given by the accused no.1 in this regard is
totally unacceptable and works against him.
29. There is another reason to discard his explanation.
Within few minutes of the occurrence of the incident, the accused
no.1 had stated to the informant that accused no.2 assaulted and
snatched the child. The said statement has come in the evidence of
P.W.1 Sagar Balani, as well as corroborated by FIR [Exh.41], which
was recorded within 2/3 hours from the occurrence of the incidnet.
However, accused no.1 had not disclosed that the accused no.2 was
involved in the alleged incident, but, stated about unknown
assailants. Thus, apparently he tried to screen the accused no.2,
which again adds a cause to disbelieve his explanation.
30. It is argued that as per the station diary entry no.152,
the police also investigated about the third assailant, therefore, the
explanation given by accused no.1 about unknown assailant is
acceptable. No doubt, the station diary entry no.152, speaks about
the third assailant, however, it very much bears the name of
accused no.2 along with accused no.1. It is the case of the
prosecution that accused no.1 gave misleading information,
therefore, such initial entry based on the information given by the
accused no.1 would not affect the prosecution case.
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31. Reverting back to the evidence of P.W.1 – informant,
he deposed that no sooner he met accused no.1 near petrol pump,
the later disclosed that the child was taken away by accused no.2. It
has come on record that accused no.1 and accused no.2 were friends
and frequently met each other. Therefore, it is difficult to accept
that accused no.2 forcibly took the child from accused no.1. In the
result, we are not satisfied about the explanation offered by accused
no.1, about the story of assault by unknown persons and snatching
of the child.
32. It brings us to consider the prosecution's case about the
conspiracy in between both accused to kidnap the child, raise
demand for ransom and eliminate the child. We may recapitulate
that the trial Court held that the prosecution has proved the
conspiracy to the extent of kidnapping of the child. Since the State
as well as the Original informant have challenged the acquittal of
both the accused from the charge of conspiracy on the point of
demand of ransom, and charge of murder as far as accused no.1 is
concerned, we are required to scan the evidence from said angle
also.
33. On the point of conspiracy, we must advert to the
settled principles in the field. It is difficult to prove conspiracy by
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direct evidence. The law with regard to the conspiracy has been
discussed by Their Lordships of the Apex Court in the case of
Damodar .vs. State of Rajasthan, (2004) 12 Supreme Court Cases
336 .
“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 120B of the
Indian Penal Code 1860.”
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
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a matter of common experience that direct evidence to prove
conspiracy is seldom found. Therefore, the circumstances proved
before, during and after the occurrence have to be considered to
decide the complicity of the accused.
34. Section 120A of The Indian Penal Code defines criminal
conspiracy, as under:
"120A. Definition of criminal conspiracy. When two or
more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is
designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
Explanation. It is immaterial whether the illegal act is the
ultimate object of such agreement, or is merely incidental
to that object."
Section 120B of The I.P.C. provides for punishment for
an offence of criminal conspiracy. The basic ingredients of the
offence of criminal conspiracy are:
(i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing to be
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done either (a) an illegal act; or (b) an act which is
not illegal in itself but is done by illegal means.
It is, therefore, plain that meeting of minds of two or
more persons for doing or causing to be done an illegal act or an act
by illegal means is sine qua non of criminal conspiracy. A
conspiracy is always hatched in secrecy and it is impossible to
adduce direct evidence of the common intention of the conspirators.
Therefore, the meeting of minds of the conspirators can be inferred
from the circumstances proved by the prosecution, if such inference
is possible.
In case of Mohammad Usman Mohammad Hussain
Maniyar & Ors. Vs. State of Maharashtra , (1981) 2 SCC 443) it
was observed that for an offence punishable under Section 120B of
The Indian Penal Code, the prosecution need not necessarily prove
that the perpetrators expressly agree to do and/or cause to be done
the illegal act, the agreement may be proved by necessary
implication.
In another case of Kehar Singh & Ors. Vs. State (Delhi
Administration) [(1988) 3 SCC 609] , the gist of the offence of the
conspiracy has been explained succinctly in the following words:
"The gist of the offence of conspiracy then lies, not in doing the act,
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or effecting the purpose for which the conspiracy is formed, nor in
attempting to do them, nor in inciting others to do them, but in the
forming of the scheme or agreement between the parties.
Agreement is essential. Mere knowledge, or even discussion, of the
plan is not, per se, enough.
35. Then in case of State (NCT of Delhi) Vs. Navjot
Sandhu @ Afsan Guru [(2005) 11 SCC 600], making exhaustive
reference to several decisions on the point, including in State
Through Superintendent of Police, CBI/SIT Vs. Nalini & Ors.,
Venkatarama Reddi, J. observed thus:
"Mostly, the conspiracies are proved by the
circumstantial evidence, as the conspiracy is seldom an
open affair. Usually both the existence of the conspiracy
and its objects have to be inferred from the
circumstances and the conduct of the accused (per
Wadhwa, J. in Nalini’s case at page 516). The well
known rule governing circumstantial evidence is that
each and every incriminating circumstance must be
clearly established by reliable evidence and "the
circumstances proved must form a chain of events from
which the only irresistible conclusion about the guilt of
the accused can be safely drawn and no other hypothesis
against the guilt is possible." (Tanviben Pankajkumar
case, SCC page 185, para 45). G.N. Ray, J. in
Tanibeert Pankajkumar observed that this Court should
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not allow the suspicion to take the place of legal proof."
Thus, it is manifest that the meeting of minds of two or
more persons for doing an illegal act or an act by illegal means is
sine qua non of the criminal conspiracy, but it may not be possible
to prove the agreement between them by direct proof. Nevertheless,
existence of the conspiracy and its objective can be inferred from the
surrounding circumstances and the conduct of the accused. But the
incriminating circumstances must form a chain of events from which
a conclusion about the guilt of the accused could be drawn. It is well
settled that an offence of conspiracy is a substantive offence and
renders the mere agreement to commit an offence punishable even
if an offence does not take place pursuant to the illegal agreement.
36. Though the nature of proof to prove conspiracy is
diluted, however, there must be circumstances, from which an
agreement to do an illegal act can be inferred. We are conscious
that the conspiracy is hatched in the mind of a conspirator,
therefore, it is hard nut to crack, but, still the material must disclose
that a reasonable inference of conspiracy could be safely drawn
from these circumstances. It is the prosecution case that both the
accused were well acquainted with each other, rather they were
friends. It has come in the evidence of P.W.6 – Vijay Chormale, that
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the accused no.1 was well acquainted with accused no.2, who lived
at his house. He has deposed that accused no.1 occasionally used to
meet accused no.2 and both used to go out for a walk. P.W.8 –
Madanmohan Oza, had stated that on 27.02.2014, he had seen both
the accused near temple. P.W.7 – Dirajkumar Padiya, has stated
about the incident dated 25.02.2015, when he saw both the
accused together at Dattawadi. P.W.9 Gajanan Gothe, has also
stated that on 2/3 occasions, he had seen both the accused sitting
together near the Neem tree in the field. The consistent evidence of
these witnesses clearly conveys that these two conspirators had
intimacy with each other.
The evidence of these witnesses further discloses that
two days prior to the occurrence they had gone to Dattawadi, along
with the child. Moreover, on the date of occurrence, accused no.1
took the child in the evening in the field, where accused no.2
arrived. These circumstances indicate that there was well designed
plan, since accused no.2 was well aware, about the place and went
to the place as per design.
37. After arrest, the accused no.1 had expressed desire to
show the place where he had handed over the child to the accused
no.2. Police recorded memorandum statement in presence of P.W. 3
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Prashant Vikhe. The police visited the place and seized the bicycle
of informant used by accused no.1 and another bicycle of Hero Jet
Company. Contextually, we have gone through the evidence of
P.W.6 – Vijay Chormale, where it has come on record that on
27.02.2014, in the evening at the request of accused no.2 he had
given his bicycle to him. He has identified the bicycle owned by
him. His evidence strengthened the presence of accused no.2 on
the spot where the girl was handed over. These circumstances,
clearly convey that both had engineered a plan and in pursuance
thereof, accused no.2 was waiting at the specified place i.e. gram
field, where accused no.1 went with the child, as designed.
Therefore, it can be well inferred that at least there was a prior
meeting of mind in between both the accused to kidnap the minor
from lawful custody of her parents, and we hold accordingly.
38. The learned Advocate for the accused no.1 vehemently
argued that the offence of kidnapping cannot be proved against
accused no.1. It is submitted that accused no.1 himself was lawful
custodian of the child, therefore, the offence of kidnapping cannot
be established against him. According to him,the offence can be
said to be committed/completed when the child was taken from his
custody [custody of accused no.1]. In short, it is the contention
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that accused no.1 being lawfully entrusted with the custody of the
child, he cannot be charged with the offence of kidnapping. In
order to impress said submission, initially he relied on the reported
judgment in case of State .vrs. Harabsingh Kisansing (AIR 1954
Bom 339) . In said case, this Court has explained the term “lawful
guardian”, as employed in Section 361 of the Indian penal Code. It
is observed that as per the explanation to Section 361 of the Indian
Penal Code, the term “lawful guardian” includes any person lawfully
entrusted with the care or custody of a minor. In short, the term
“lawful guardian”, is to be liberally construed and not in the strict
sense like “Legal Guardian”. The observations of said case can be
read only to that limited extent. Rest of the conclusions are on the
basis of the facts of that case.
In said case, one Abbas, who was second husband of
the mother of child, filed complaint with the police about
kidnapping. The mother of child was not examined to show that
the child was taken from her custody without consent. In that
context, it was ruled that a person to whom a child is entrusted
comes within the compass of term 'lawful guardian', and therefore,
his evidence is sufficient to prove kidnapping. Basically the object of
Section 361, seems as much to protect the minor child from being
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seduced for improper purpose and also to protect the rights and
privileges of the guardian. The legislature has specifically explained
the term 'legal guardian', so as to remove the mischief and to
constitute an offence of kidnapping even if the child is taken from
anybody, who was lawfully entrusted with the custody of the child.
39. The learned defence Advocate further relied on the
reported judgment in the case of Parkash .vrs. State of Haryana
[(2004) 1 SCC 339] , on very same aspect. In the said case, the
Hon'ble Supreme Court ruled that taking or enticing need not be
shown to have been by means of force or fraud, but, guardians
consent is material. These are the general principles explaining the
essential ingredients to constitute an offence of kidnapping, as
defined under Section 361 of the Indian Penal Code. The informant
also relied on the very same judgment to explain the meaning and
essentials to constitute the offence of kidnapping.
40. Coming to the submission that there cannot be an
offence of kidnapping against accused no.1, we do not find any
merit in said contention. The said argument is based on the
admitted fact that accused no.1 was entrusted with the custody of
child, and therefore, he being the lawful guardian, cannot be termed
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as a kidnapper. If said proposition is accepted, then a servant or
anybody who was temporarily entrusted with the custody of the
child would escape from the clutches of law, though he takes child
with deceitful intent. No doubt, in the case at hand, accused no.1
was lawfully entrusted with the custody of the child to hand it over
to her mother. Accused no.1 was under the umbrella of the term
'lawful guardian', till he acted in accordance with his role and
particularly, as per the directions of his master. No sooner, he
exceeded his limit or violated the specific direction, he comes out of
the purview of lawful guardian and would turn kidnapper, if rest of
the ingredients are proved.
41. It has come in the evidence of the informant that he
had specifically warned accused no.1, not to take the child
anywhere else, except his shop and house. At this juncture, we may
recall the evidence of P.W.7 – Padiya. It has come in his evidence
that two days prior to the incident i.e. on 25.02.2014, he had seen
accused no.1 with child near Dattawadi area, and he had informed
about it to the informant. In this regard, it has come in the evidence
of P.W.1 informant that on 25.02.2014, Padiya (PW 7), had come to
his shop and had enquired as to how accused no.1 went to
Dattawadi with child. Informant specifically deposed that after
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getting knowledge about the incident he had scolded accused no.1
and had strictly warned that the child should not be taken anywhere
except the house and the shop. This piece of evidence had gone
unchallenged as well as, there is no reason to disbelieve the same.
Moreover, informant deposed that, at the relevant time he had
entrusted the custody of the child with the accused no.1 and had
specifically asked him to hand over the child at his house to his wife.
In the circumstances, though accused no.1 temporarily assumed the
character of lawful guardian, but, as soon as he went to gram field,
against the directions of his master, he came out of that character,
and therefore, the argument advanced by the defence cannot be
accepted. The attempt of defence to clothe accused no.1 with the
character of lawful guardian cannot save him because he lost that
character when he took the child deceitfully to gram field and
handed over to his companion.
42. This takes us to the crucial aspect of the case relating
to the evidence on the point of last seen together, meaning thereby
the deceased was last seen in the company of the accused. It is
prosecution's case that on 27.02.2014, around 6 p.m., deceased
Lado was last seen with both accused and then within 24 hours, her
dead body was recovered. Undoubtedly, it is settled legal
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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,is so small that there may not be any possibility that any
person other than the accused may be the author of the crime.
The conviction on the basis of “last seen theory” and
the circumstantial evidence is accepted in our jurisprudence. The
“last seen together theory” will apply with greater force in cases
where the victim is of tendering age and / or where the mobility of
the victim is restricted because of some physical deficiency /
deformity. The time gap between sighting of the victim in the
company of the accused and death of the victim is a relevant factor
as there is a chance that after the victim was lastly seen in the
company of the accused, the victim might have moved away from
the accused and the death is caused by some person other than the
accused. But in a case where the victim is a child of tender age or
where the victim is suffering from physical deficiency / deformity
because of which independent mobility of the victim is restricted
and the victim is not able to move on his/her own, the time gap
between the sighting of the victim in the company of the accused
and the death of the victim will not be fatal to the case of
prosecution. Of course, this will depend on the other evidence on
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record also.
In the present case, the victim was aged about 2 ½
years and the evidence on record shows that the accused no. 1 had
been entrusted with the work of taking the child from the house of
the informant to the shop of the informant and from the shop of the
informant to the house of the informant. We have recorded that as
per the evidence on record, the child was handed over by accused
no. 1 to the accused no. 2. The accused no. 2 had taken away the
child and then dead body of the child was recovered on the
following day i.e. time gap was very short. In these facts, the “last
seen theory” would apply with full force and this is a strong
circumstance pointing out the guilt of the accused no. 2.
43. The prosecution has examined P.W. 9 Gothe, who is a
star witness on the point of last seen theory. It has come in his
evidence that on 27.02.2014, around 6.30 p.m., while returning
from the field, he had seen both accused along with the child. He
specifically deposed that both were talking with each other and
walking holding their bicycles. Evidence of this witness is largely
criticized on the ground of delay in recording of his statement. The
leaned Advocate for the appellant endeavored to draw home the
point that the credibility of the testimony of the said witness is
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impaired on account of delay in recording of his statement under
Section 161 of the Criminal Procedure Code. It is argued that
though this witness was very much available on the day of incident,
however, his statement was recorded after four days. In the context
of factual scenario, according to the learned Advocate for the
appellant, the delay is inordinate. It is trite, that mere delay in
recording the statement of witness by itself could not be a ground to
discard his testimony. Two factors assume significance, where
credibility of testimony of witness is questioned on account of
delayed interrogation (1) Whether there is plausible explanation for
such delay and secondly, are their any concomitant factors or
circumstances, coupled with delay, which renders it unsafe to place
reliance on the testimony of such witness.
In this context, a useful reference can be made to the
ruling of the Hon'ble Supreme Court in the case of State of U.P.
V/s. Satish [(2005) 3 SCC 114] , wherein the position is explained
in following words :
“18. As regards delayed examination of certain
witnesses, this Court in several decisions has held that
unless the Investigating Officer is categorically asked as
to why there was delay in examination of the witnesses
the defence cannot gain any advantage therefrom. It
cannot be laid down as a rule of universal application
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that if there is any delay in examination of a particular
witness the prosecution version becomes suspect. It would
depend upon several factors. If the explanation offered
for the delayed examination is plausible and acceptable
and the court accepts the same as plausible, there is no
reason to interfere with the conclusion [See Ranbir and
Ors. v. State of Punjab (1973) 2 SCC 444, Bodhraj
@Bodha and Ors. v. State of Jammu and Kashmir,
(2002) 8 SCC 45 and Banti @ Guddu v. State of M.P.
(2004) 1 SCC 414.
19. The High Court has placed reliance on a decision of
this Court in Ganesh Bhavan Patel and Anr. v. State of
Maharashtra, (1978) 4 SCC 371. A bare reading of the
fact situation of that case shows that the delayed
examination by IO was not the only factor which was
considered to be determinative. On the contrary it was
held that there were catena of factors which when taken
together with the delayed examination provided basis for
acquittal.
20. It is to be noted that the explanation when offered by
IO on being questioned on the aspect of delayed
examination, by the accused has to be tested by the
Court on the touchstone of credibility. If the explanation
is plausible then no adverse inference can be drawn. On
the other hand, if the explanation is found to be
implausible, certainly the Court can consider it to be one
of the factors to affect credibility of the witnesses who
were examined belatedly. It may not have any effect on
the credibility of prosecution's evidence tendered by the
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other witnesses”.
Reverting to the evidence of P.W.9 Gajanan, admittedly
his statement was recorded by the police on 05.03.2014. Notably,
defence has not categorically asked the explanation to the
investigating officer about delay in recording of statement. If such
explanation was sought and the investigating officer had offered
explanation, then it would have been tested on the touchstone of
credibility. In absence of that, mere delay ipso facto would not
affect the credibility of the witness.
44. P.W.9 Gajanan, during cross examination, though
admited that he was cultivating the field of informant, however, he
denied that he was in good relations with the informant's family.
The defence was not able to bring enmity of this witness with the
accused. Normally, a witness is considered to be an independent
unless he springs from the waves which appear to be tainted with
enmity. Here again it would depend on the facts of each case.
P.W. 9 Gajanan, had no enmity with the accused and he
is an independent and natural witness. Since he revealed the truth
after some time, that cannot be a factor to discard his evidence in
toto. There cannot be a prosecution case with cast iron perfection in
all respects, and it is obligatory for the Courts to analyze, sift and
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assess the evidence on record, with particular reference to its
trustworthiness and truthfulness and natural conduct of the parties.
The entire evidence with reference to broad and reasonable
probabilities of the case is to be seen.
45. To impeach the evidence on last seen theory, the
defence relied on the reported case of Ashraf Hussain Shah .vrs.
State of Maharashtra (1996 CLR L.J. 3147) . In said case, this
Court disbelieved the witness since there was delay in recoding
statement. Infact the said conclusion was based on the facts of that
case. In said case two witnesses had seen the incident, then they
were at police station for 1 ½ hours, still they had not disclosed the
incident to police, and therefore, their delayed disclosure was
disbelieved. The said case is distinguishable on facts, because, in
said case the witnesses had allegedly seen the actual incident of
assault, still they preferred to remain silent despite sitting in police
station. In case at hand, on the day of incident, P.W.9 Gajanan,
alongwith other villagers had gone to police station, but had not
disclosed that he had seen the child with the accused. The marked
distinction is that this witness had not seen any assault or gruesome
act so as to immediately disclose about the incident to the police, as
a natural reaction. What he had seen is just a routine affair that the
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servant was proceeding with master's kid and nothing else. Since it
was an usual affair for him, he had not paid attention nor thought it
to be of importance to disclose. It is to be remembered that this
witness is a rustic agriculturist. Therefore his nondisclosure of
routine affair for few days cannot be treated as a weakness in
prosecution's case, unless his evidence is found to be unworthy.
46. In view of the attaining facts and legal position coupled
with the circumstances in the case at hand, we are not persuaded to
accede to the submission made on behalf of the appellant that the
testimony of P.W.9 Gajanan is untrustworthy, solely on account of
delay in recording his statement under Section 161 of The Code of
Criminal Procedure. His evidence is found to be natural, truthful
and credit worthy, therefore we hold that the prosecution has
proved that on 27.02.2014, around 6.30 p.m. deceased Lado was
last seen alive in the company of both accused.
47. The defence submited that the last seen together theory
itself is not sufficient to rope the accused in the crime. To uphold
said submission, reliance is placed on the reported case of Gambhir
.vrs. State of Maharashtra [(1982) 2 SCC 351] . In the said case,
on the basis of the facts, it was observed that last seen together by
itself was not sufficient to connect the accused with the crime. True,
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it is risky to convict the accused only on the basis of last seen
together evidence, but, in case at hand, there are several other
circumstances which unerringly points the complicity of the
accused.
It has come in the evidence that dead body of Lado was
found at the instance of accused no.2, on the following day around
6.30 p.m. Apart from the recovery of dead body at the instance of
accused no.2, it is an well established fact that within 24 hours of
deceased seen in the company of accused, dead body was found. Of
course we are coming to the evidence on the point of discovery of
dead body at the instance of accused no.2 after short while. It is
evidence of P.W.10 Dr. Tapadia, that the death might have occurred
in between 12 to 24 hours prior to the postmortem, which was
conducted on 28.02.2014 around 8.50 p.m. Though the defence
tried to create doubt on the experts opinion on the point of death
on theoretical proposition, the expert's evidence cannot be lightly
brushed aside. As per his opinion, the death might have been
during the night between 27.02.2014 and 28.02.2014, meaning
thereby within few hours when the victim was “last seen”, with the
accused. In the circumstance, we found that the last seen theory is
very much intact due to very short time gap between the two things.
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Since the victim was child barely aged 2 ½ years having no mobility,
we hold that this is strong peace of circumstances against the
accused No.2.
48. Then the prosecution relied on various memorandum
and consequential discovery at the instance of both accused. Rather
this is an important link which prosecution tried to establish by
tendering various memorandum, seizure panchnamas and
examining the relevant witnesses in support thereof. For this
purpose, the prosecution heavily relied on the evidence of P.W.3 –
Prashant, who is Panch witness. The learned Advocate appearing
for the defence would submit that this witness was panch for all
disclosures and seizures, therefore, he cannot be relied upon, being
stock witness. Merely because the police repeatedly called him at
the time of execution of memorandum and seizure panchnamas,
that by itself cannot be the ground to discard his evidence, if
otherwise, found credit worthy. His evidence requires usual
scrutiny.
49. It is argued that P.W.15 – Dy.S.P. Rashni Nandekar, had
admitted that accused no.1 was takenout from lockup for
interrogation in between 2.25 a.m. to 4.35 a.m. on 28.02.2014, and
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therefore, the disclosure and recovery shown in the morning is not
reliable. It is submitted that the investigation was handed over to
Dy.S.P. Nandekar, on 01.03.2014, therefore, the same also creates
doubt. We are not ready to accept said submission because P.W.15
Dy.S.P. was a superior officer and had every right to monitor the
investigation, though formally it was not handed over to her.
Secondly, though she interrogated accused no.1 during the night
intervening 28.02.2014, and it does not mean that in the morning
again there was no interrogation and disclosure.
50. It has come in the evidence of P.W.3 – Vikhe that on
28.02.2014, in his presence accused no.1 had expressed willingness
to show the place where he had handed over child to accused no.2.
Accordingly memorandum panchnama [Exh.48], was prepared. It
is his evidence that thereafter, accused no.1 led all of them from
police station towards Thar road and had asked to halt vehicle near
a field of gram. The accused no.1 led all of them on foot to the
Neem tree. On inspection, police had found one cycle bearing name
on chain cover as K.S. Bagani (informant). Another cycle a sandal
of small child and one broken knife blade were seized from said
place and panchnama [Exh.49] was drawn. This witness is cross
examined at length, but, nothing has come out because of which his
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testimony can be discarded. This witness has shown the place
where child was transposed in the custody of accused no.2, which is
confirmed by the circumstance of finding of cycles of both the
accused as well as sandal of small child. This is an important
circumstance which lends support to the evidence of this witness
and it also speaks about involvement of both the accused.
51. The prosecution next relied on the vital circumstance of
finding dead body at the instance of accused no.2. On the point of
recovery of dead body, evidence of P.W.3 is crucial. P.W.3 Vikhe, is
a panch witness on the memorandum under Section 27 of The
Indian Evidence Act. He has stated that on the same day i.e.
28.02.2014, around 6 p.m. he was called by police to act as Panch
witness. In his presence accused no.2 had stated that he was ready
to show the place where Lado's dead body was buried. Accordingly
police had recorded memorandum panchnama – Exh.51.
Thereafter, accused no.2 had led them near the field of gram, and
then to the field where maize was sown. Accused no.2 had pointed
out a heap of soil between two rows of crop and had stated that he
had buried Lado at said place. Accused no.2 had removed the soil
and naked dead body of a small girl was found. There was a white
coloured string on her neck. The police called the informant for
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identification of the body, and accordingly panchnama [Exh.52] was
drawn. Except for the objection of using same panch for different
panchanma, nothing material is pointed from the side of defence to
discredit his evidence.
52. The defence, while criticizing the evidence on the point
of finding dead body at the instance of accused no.2, argued that
the policemen were already knowing the place where dead body
was buried, and therefore, the memorandum and discovery is of no
significance. This submission is primarily based on the informants
admission that when the dead body was found, he was present on
the spot. Infact this is a distorted submission, because it has come
in the evidence that no sooner the dead body was unearthed, the
police summoned the informant to identify the body. This was the
reason for the informant's presence at relevant time, therefore, the
said admission cannot be read out of context.
53. Defence tried to make a point about summons/notice
Exh.71, issued by police for calling this witness to act as panch.
True, summons [Exh.71] issued to the panch witness states that
accused no.1 and accused no.2 were to make disclosure statement,
for which panch witness was called. It is argued that P.W. 3 Vikhe,
received summons in the morning, which bears name of accused
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no.2 also, who was infact arrested in the afternoon at 3.30 p.m.
Therefore, according to the defence, the panchnamas are not
genuine, but, fabricated one. In this regard the defence took us
through the evidence of P.W.13 – P.I. Nikam, who admits that the
said summons/notice was served in the morning of 28.02.2014.
Though P.I. Nikam, admits accordingly, however, P.W.3 Vikhe,
clarified that Exh.71 is not the summons by which he was called in
the morning. He explained that he had received the Summons
Exh.71, in the evening and further added that he had received total
7 to 8 summons, therefore, inadvertent admission on the part of the
investigating officer would not discredit the prosecution case as
against the specific evidence of panch witness, P.W.3 Vikhe.
Though P.W.3 Vikhe has faced searching cross examination, it
remained abortive. Evidence on the point of memorandum and
disclosure of dead body at the instance of accused no.2 is specific
and credit worthy. This circumstance is duly proved by the evidence
of P.W.3 Vikhe coupled with the evidence of P.W. 13 PI Nikam.
Rather it is very important link to connect accused no.2, since the
place where dead body was buried was within his exclusive
knowledge. Though it is argued that the recovery from open place
is inadmissible, however, the evidence indicates that the dead body
was buried beneath the surface of land and therefore, it can be well
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presumed that accused no.2 was in exclusive knowledge of the
place where the body was buried. We must note that arrest
panchnama [Exh.72], of accused no.2 shows that there are bite
marks on his arm which reaffirms the complicity of accused no.2 in
the crime.
54. The leaned Advocate for the accused no.2 argued that
only on the basis of disclosure and recovery, the accused cannot be
convicted. In this regard he placed reliance on the judgment in case
of Vijay Thakur .vrs. State of Himachal Pradesh [(2014) 14 SCC
609] . In said case, the Hon'ble Supreme Court laid down a general
proposition that, it would be risky to convict a person solely on the
basis of alleged disclosure, when recovery is also shrouded with
element of doubt. This case is distinguishable on facts, since in case
at hand the recovery of dead body as well as other articles have
been proved through reliable evidence. Inasmuch as, the conclusion
of guilt is drawn as a cumulative effect of several circumstances, and
not only on the basis of disclosure and recovery. In substance,
finding of dead body from exclusive knowledge of accused no.2 is a
strong circumstance which heavily goes against him.
55. On 04.03.2014, again accused no.2 expressed desire to
disclose the place where certain incriminating articles were
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concealed by him. This time, police called P.W.4 – Balaji Kendre as
panch witness. It has come in his evidence that accused no.2 stated
that he had concealed clothes of deceased, knife, and sandal of child
which he was ready to show. Accordingly memorandum
panchnama [Exh.80] was drawn. It is his evidence that thereafter,
accused no.2 led them to the field where maize crop was sown.
Particularly he took them near waste material kept at the side of the
tree, and pointed that he had concealed the articles at said place.
The accused no.2 removed the waste and took out a sandal and
clothes of small child, namely reddish colour jacket with blood
stains, hosiery half shirt and hosiery full pant. Then accused no.2
took them at some distance and took out a broken knife and all
these articles were seized under panchnama Exh.82. The evidence
of this witness withstood to the scrutiny of cross examination.
Moreover, the evidence of P.W.15 – Dy.S.P. Smt. Nandedkar,
corroborates the memorandum and seizure panchnama. The trial
Court has rightly appreciated said evidence on memorandum and
consequential seizure of incriminating articles from accused no.2.
Finding of blood stained clothes of small kid at the instance of
accused no.2, is one another strong piece of circumstance against
accused No.2.
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56. The learned Advocate for accused no.2 submitted that
mere recovery is not admissible unless its link with the crime is
established. On said point he sought to rely on a reported judgment
in case of Digambar Vaishnav and another .vrs. State of
Chattisgarh [2019 Supreme (SC) 249]. In said case, it is ruled
that under Section 27 of The Indian Evidence Act, it is not discovery
of every fact that is admissible, but, discovery of relevant fact alone
is admissible. No doubt, recovery is nothing but a link between the
facts discovered with the crime. At the instance of accused no.1, the
place where Lado was handed over to accused no.2 was disclosed.
At said place, two bicycles, sandal and broken blade of knife was
found, which very much linked to the crime. Not only these articles
speaks about the occurrence, but, it also links accused no.2 as since
his bicycle was found and particularly, presence of child was
established at said place since one sandal was found. About
recovery on 04.03.2014 at the instance of accused no.2, is
concerned, it very much establishes a link between accused no.2 and
the crime. Blood stained clothes of a child were recovered, which is
highly incriminating circumstance in the background, that a naked
dead body of child was found. Moreover, recovery of a sandal and
broken knife, reaffirms the connection of accused no.2 with the
incident.
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57. One more circumstance which suggests complicity of
the accused is the chemical analyser's report. The prosecution has
relied upon the expert evidence. It has come in the evidence that in
presence of panch witnesses, clothes of deceased were seized at the
instance of accused no.2. The police also seized blood stained
clothes of accused no.2. All seized articles were forwarded to
chemical analyzer vide letter Exh.135. The chemical analyzer's
report Exh.18, indicates that on the half Tshirt of accused no.2,
blood of “B” group was found, which was of the deceased. Though
human blood was found on jeans of accused no.2, however, the
blood group was not detected. The defence argued that since there
were no bleeding injuries on the person of the deceased, the
evidence in this regard is of no significance. On perusal of the
postmortem notes, it reveals that the deceased had three injuries on
her person. Injury no.1 was Abrasion of reddish colour and injury
no.3 was laceration of circular shape. One must note that the
deceased was barely 2 ½ year old child, who had less mobility.
Therefore, the accused no.2 might have lifted the child in arms and
in such peculiar facts, the possibility of presecne of blood stains on
the front portion of clothes, may be from abrasion or laceration,
cannot be ruled out. It is pertinent to note that there were
moderate number of blood stains mostly on the front portion of the
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shirt and pant of accused no.2. Therefore, finding of blood of “B”
group, which is of deceased, on the clothes of accused no.2, is a
vital circumstance, which strongly goes against the accused no.2.
Moreover, there is no explanation by accused no.2 in this regard.
58. Now we propose to deal with the evidence on the point
of kidnapping for ransom, punishable under Section 364A of the
Indian Penal Code. The trial Court has held that the prosecution
failed to establish the charge of kidnapping for ransom against both
the accused. The State as well as the informant has challenged the
acquittal on said count by filing separate appeals. The learned
Advocate for accused no.2 vehemently argued that the trial court
acquitted the accused of said charge, therefore, inherent
presumption of innocence has been strengthened. According to
him, unless there is perversity in the reasoning and findings of trial
Court, the conclusion of acquittal can not be disturbed in appeal. In
order to buttress said submission, he relied on the reported
judgment in case of State of Rajasathan .vrs. Shera Ram @
Vishnu Dutta [(2012) 1 SCC 602]. In the said case, the Hon'ble
Supreme Court has explained the scope of appeal, against acquittal.
It is observed that on limited grounds, the acquittal may be
overturned. The presumption of innocence is fortified by acquittal
and therefore, unless the judgment of trial Court is contrary to the
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evidence, palpably erroneous or the view could not have been taken
by the Court, it cannot be reversed in the appeal. Also reliance is
placed on the judgment in case of Madathil Narayan and others
.vrs. State of Kerala and another [(2018) 14 SCC 513], wherein
the very same principle has been reiterated.
To amplify the settled position in the field, we may
refer to the decision of Hon'ble Supreme Court in case of Joginder
Singh and another .vrs. State of Haryana [(2010) 15 SCC 407) ,
wherein it is ruled that mere fact that a view other than one taken
by the trial Court can be legitimately arrived at by the Appellate
Court on reappraisal of evidence, cannot constitute a valid and
sufficient ground to interfere with the order of acquittal, unless
there is perversity.
In the light of this settled position of law, we have
examined the evidence on the point of demand for ransom. The
term 'ransom' has not been defined in the Code. The term “ransom”
means sum of money demanded or paid for release of a captive.
The learned Advocate appearing for the informant initially
submitted that it is not necessary for the prosecution to prove from
whom the ransom call was received. In this regard, he relied on the
reported case of Balaso Maruti Kale and another .vrs. State of
Maharashtra [2002 All MR (Cri) 2627]. He submited that there is
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no straight jacket formula that the demand of ransom has to be
made to a person who ultimately pays. In support he relied on the
judgment of Hon'ble Supreme Court in case of Malleshi .vrs. State
of Karnataka [2004EQ (SC) 898]. True, there can be no definite
manner/mode in which the demand can be made and to whom it is
made. Some time, kidnapper may make the demand to the parents
or some time to any other person who is closely connected to the
payee. Similarly, the culprit may raise demand by any mode of
communication for which there can be no set rules. However, the
prosecution has to establish the demand, may be by any mode of
communication to any connected person, which should appear to be
trustworthy in the facts and circumstances of the case.
59. To establish the case of demand for ransom, the
prosecution's case is based on the evidence of P.W.6 Vijay. It is his
evidence that he was well acquainted with accused no.2. On the
date of occurrence, accused no.2 took his bicycle, which fact has
been discussed earlier. Moreover, for some days accused no.2 was
also sojourn at his house. In such a background, he stated that he
had received a message in English language on his mobile, which
was allegedly the demand for ransom. He was quick enough to
clarify that he was not knowing English language. He deposed that,
he had shown the mobile to the informant, and then to police on
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which the police informed that the said mobile contained a message
of demand of Rs. 1 Crore for release of child. This is precisely the
evidence led by the prosecution to prove the demand of ransom.
Admittedly there is no other evidence to prove the demand for
ransom.
60. In present time, electronic evidence assumes great
significance, since it carries high value. The aspect of eevidence
and about its proof is elaborately discussed by the Hon'ble Supreme
Court in case of Anwar .vrs. Basheer [2014 (6) All MR (Cri) 951].
It is observed that eevidence is to be proved by producing original
electronic media as primary evidence or its copy as secondary
evidence with requisite certification. Mere production of mobile is
of no significance. Neither SMS print out, nor CD of contents is
produced. Investigating Officer has not taken pains to preserve and
prove this sole piece of evidence.
The trial Court has criticized said evidence from every
possible angle. It is held that the message for ransom is not at all
proved. Admittedly the electronic evidence about the text of the
ransom message has not been brought on record and proved by the
prosecution. Infact it was quite easy for the investigating agency to
lead such evidence when police had allegedly seen the ransom
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message and had seized the mobile. In absence of said evidence, it
is very difficult to rely on the evidence regarding demand of ransom.
61. The prosecution case is so nebulous, that even by any
stretch of imagination it cannot be held that there was demand for
ransom. P.W.6 Vijay, is merely an agriculturist and was tilling the
field of P.W.1 informant. The prosecution has not explained as to
what was the reason for the culprit to send the ransom message in
English to an agricultural labour, who was not knowing English
language. This witness is silent on the point as to who had sent the
said message. We fail to understand that when P.W.6 Vijay was
unable to understand English language, what occasioned him to
show said particular message to the informant and police. It is a
common phenomena that in present time, one receives number of
marketing messages on and often. In such a scenario, it is difficult
to understand how a person who was not knowing English language
had perceived that it was incriminating message and had
assiduously shown it to the informant. Therefore, at the threshold,
the story as has been projected by the prosecution about the
demand of ransom is fishy.
62. It is pertinent to note that the evidence is totally silent
on the point of text of so called ransom message. Had it been the
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fact that there was ransom message, then at least the informant
would have stated the same in his oral evidence, it being a vital
issue. Moreover, there is no evidence of any of the police officer
even to the extent that they had read the message of ransom or
about its script. Looking the matter from another angle, the things
are more worse. It is the prosecution case that the alleged ransom
message was received from the mobile of accused no.2. Police have
seized the mobile handset of Duos Blue Berry Company from
accused no.2, having sim No. 8421509583 of Uninor Company,
under panchnama Exh.53.The prosecution has examined P.W.14 –
Nodal Officer of Uninor Company. It has come in his evidence that
the sim no. 8421509583, was in the name of one Satyajit Male,
which was activated on 04.12.2013. Further it has come in his
evidence that the said mobile sim was reactivated on 19.11.2014,
in the name of one Kailash Dattatraya Bhandavale. The incident
took place on 27.02.2014. Thus, as per the record of the telecom
company, the said sim was in the name of one Satyajit Male at the
relevant time.
In such background, unless nexus of accused no.2 with
the said sim card or Satyajit Male is established, the evidence on
the point of demand of ransom cannot be accepted. In absence of
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link between the said sim number and accused no.2, it is difficult to
rely on the said piece of evidence.
63. To constitute the offence under Section 364A of The
Indian Penal Code, it is necessary to prove that not only such
kidnapping has taken place but, thereafter, accused threatened to
cause death, if the demand is not fulfilled. Though the first part of
kidnapping is proved, the later essential ingredient about demand
and threat is totally missing. In the circumstances, the conclusion
drawn by the trial court that the prosecution had miserably failed to
prove the demand of ransom, is irresistible and most probable,
therefore, we affirm the same.
64. The State as well as the Informant in their respective
appeals have challenged acquittal of accused no.1 from the charge
of murder. On the aforementioned parameters we have scrutinized
the evidence to find out whether there exists any evidence to clothe
accused no.1 with the charge of murder. We may recapitulate that
on 27.02.2014, around 6 to 6.30 p.m. the child was transposed in
the custody of accused no.2. Within half an hour, accused no.1
contacted the informant and then he was taken to police station
and was in police custody. Therefore, apparently he was not
physically present when the child was done to death. It has come in
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the evidence of P.W.10 Dr. Tapadia, that victim might have died
between the period of 12 to 24 hours prior to the conducting of
postmortem, which was conducted at 8.50 p.m. of 28.02.2014.
The learned Advocate for accused no.2 pointed that
rigor mortis had not fully developed, meaning thereby death
occurred within 12 hours prior to postmortem examination. For this
purpose he took us through the admission given by P.W.10 Dr.
Tapadia, that he had not stated in postmortem notes that rigor
mortis had fully developed. However, we may note that the doctor
has mentioned that rigor mortis was fully set in all the limbs. Rigor
mortis begins after 4 hours from the death. At this stage, we find it
relevant to advert to the decision of the Hon'ble Supreme Court in
case of Ram Udgar Singh .vrs. State of Bihar [(2004) 10 SCC
443] , wherein it is observed that the time which is usually 3 to 4
hours may vary according to climate condition. Rigor mortis thus
varies with climate and circumstance in which the dead body was
kept. Nothing has been brought about to disbelieve the medical
officer i.e. the expert's opinion that death occurred within 12 to 24
hours before postmortem.
65. Be that as it may, the death of child occurred in the
night intervening 27.02.2014 and 28.02.2014. The accused no.1
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was in the company of informant from 7 to 7.30 p.m. of 27.02.2014
and then was in police custody. Therefore, his physical presence at
the time of actual death of the child is next to impossible. Then the
question remains, whether he can be fastened with the liability
with the aid of principle of joint liability. In earlier part of the
judgment, we have held that the prosecution has proved the
conspiracy only to the extent of kidnapping. Accused no.1 had no
reason to call the informant, and disclose that the child was taken
away, if he was a conspirator to commit murder. The evidence
discloses that there was prior meeting of mind to kidnap, but, most
probably, due to differences, the accused no.1 might have
withdrawn from the plan, and therefore, the matter was made
known to the informant. In the circumstances, accused no.1 cannot
be held liable for homicidal death of the child, since he was neither
present at the time of death, nor there is evidence of hatching
conspiracy to that effect.
66. The learned Addl. Public Prosecutor submitted that,
when the fact of kidnapping is proved, then inference that deceased
remained in the custody of kidnapper till death can be drawn and
accused no.1 cannot be absolved from charge of murder. For this
purpose he relied on the reported judgment in case of Sunder @
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Sundararajan .vrs. State by Inspector of Police (AIR 2013 SC
777), wherein it is observed as under :
“ In case of kidnapping for ransom and murder once the
deceased has been proved to be kidnapped by accused the
onus shifts on the accused to establish how and when the
kidnapped person was released from his custody. In
absence of any material produced by the accusedappellant,
it has to be accepted, that the custody of deceased had
remained with the accusedappellant, till he was murdered.
The motive/reason for the accusedappellant, for taking the
extreme step was that ransom as demanded by him, had
not been paid. It cannot therefore, be said that thee is no
evidence on record on the basis whereof even the factum of
murder at the hands of the accusedappellant does not
stand established.”
In the case at hand, the said presumption would apply
with full force against accused no.2, but, due to distinct facts has no
application to accused no.1. The very circumstance that accused
no.1 was consistently in police custody right from one hour after last
seen, excludes his culpability in murder. The view expressed by the
trial court in this regard is quite probable and plausible one.
Therefore, we repel the submission of State and informant in this
regard and affirm the conclusions drawn by the trial Court regarding
acquittal of accused no.1 from the charge of murder.
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67. So far as the role of accused no.2 is concerned, it has
come on record that the child was handed over to him on
27.02.2014, around 6.30 p.m. There is “last seen together”
evidence on record on the point which is discussed in the earlier
part of the judgment. As per the medical evidence, the death
occurred during the night intervening 27.02.2014 and 28.02.2014,
when the child was in the custody of accused no.2. Therefore, there
cannot be two opinions on the point that the accused no.2 is the
author of the crime. The death of the child is by way of
strangulation, while in custody of accused no.2. Therefore, the
finding of the trial Court that the accused no.2 had caused death of
child is irresistible. Since, the defenseless child died due to
strangulation, we can hold without hiccup that it is a case of
homicidal death. The act of accused no.2 of strangulating the child
with string demonstrates the clear intention to cause such bodily
injury, with knowledge that it would cause death of the child. The
requisite intention to cause death and knowledge are very much
present and therefore, the act of accused would constitutes an
offence of murder. Therefore, we fully affirm the finding of trial
court that prosecution has duly proved that accused no.2 has
committed murder of innocent child.
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68. It is argued that there is inordinate delay in lodging of
First Information Report, and therefore, there are chances of false
implication. To support this contention, the defence relied on
reported case of Thulia Kali .vrs. State of Maharashtra [(1972) 3
SCC 393]. In the said case, the Hon'ble Supreme Court has
reiterated the well settled principles regarding importance of
prompt lodgment of First Information Report. It is observed that the
object of insisting upon prompt lodging of report eliminates the
charges of concoction. Delay in lodging FIR often results in
embellishment which is a creature of after thought.
69. What constitutes delay in lodgment of First Information
Report, is a matter of fact. In case at hand, the informant learnt
around 7 p.m. that his daughter was kidnapped. Initially some
misleading information was given by accused no.1 and therefore, he
was thoroughly interrogated, and then FIR (Exh.41), was lodged at
9.30 p.m. In the situation, time gap of 2 to 2 ½ hours can hardly be
termed as delay in lodging the First Information Report. Pertinent
to note that name of accused no.2 was disclosed in First Information
Report itself. One can understand the plight of a father whose
beloved daughter was kidnapped. The misery was added by
irrational responses given by accused no.1, therefore, in our opinion
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the time gap of 2 to 2 ½ hours cannot be termed as inordinate
delay in lodging FIR.
70. The trial Court has convicted both the accused for
commission of offence of causing disappearance of evidence, which
is punishable under Section 201 of the Indian Penal Code. So far as
the accused no.2 is concerned, the finding of guilt in that regard is
well justified. It has come on record that accused no.2 had not only
buried the dead body, but, had concealed the clothes of the child
beneath garbage, therefore, it shows that the accused no.2 had
caused the evidence to disappear, to screen the offence. However,
as regards accused no.1 is concerned, we find that without any
material, the trial Court has convicted accused no.1 for said offence.
The evidence discloses that accused no.1 had only shown the place
where he had handed over the child to the accused no.2. While
inspecting the place, the police found two bicycles and a sandal of
child lying on the spot. It is not the case that accused no.1 had
concealed these things so as to screen the offence. Therefore, in our
opinion the trial Court erred in convicting the accused no.1 for the
offence punishable under Section 201 of the Indian Penal Code,
which is required to be reversed.
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71. In every criminal case, court should search for motive.
Always motive is hidden in the mind of the culprit. Therefore, it is
very difficult to prove. In the earlier part of judgment we have held
that the prosecution has failed to prove the demand for ransom.
Though there is no evidence on the point of demand of ransom,
but, there could be hardly any other reason for the accused. The
intention might be to raise demand but, out of fear, the plan was
abandoned in half way. The mindset of culprit cannot be
unrevealed. Therefore, definite motive has not come on record. We
may add that proof of motive is not sinequanon to prove the guit,
if other evidence is of conclusive nature.
72. 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, the following :
1) Homicidal death.
2) Acquaintance of accused with each other;
3) Entrustment of Child with accused no.1.
4) Both the accused were last seen together with the child.
5) Child died while in exclusive custody of accused no.2.
6) Time gap between last sighting of the deceased in the
company of the accused and the death of child, is very
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short.
7) Dead body was recovered at the instance of accused
no.2.
8) Recovery of incriminating material at the instance of the
accused no.1.
9) Recovery of incriminating material at the instance of the
accused no.2.
10)Seizure of blood stained clothes of accused no.2.
11)Finding of blood of “B” group of deceased on the
clothes of accused no.2.
12)False and misleading explanation by accused no.1.
73. We have tested the prosecution evidence in the
background of legal principles and found that the prosecution has
unerringly established the chain of circumstance to prove that
accused no.2 has caused death of innocent child. Likewise, we hold
that both the accused hatched conspiracy to kidnap the child. So
also accused no.2 has concealed the evidence to screen the offence.
Though there was charge of Section 66A of The Information and
Technology Act, 2000 there is no iota of evidence to support said
charge. Therefore, we affirm the findings of trial Court in all respect,
except finding of guilt of accused no.1 relating to charge under
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Section 201 of the Indian Penal Code.
74. Now, the last aspect remains about the imposition of
appropriate sentence. The informant in his appeal prayed for
awarding capital punishment. It is argued that the accused killed
innocent defenseless child, which is an example of brutality.
Therefore, he deserves capital punishment.
75. Imposition of appropriate sentence is a delicate task in
criminal cases. It is the responsibility of the Court to appropriately
punish the accused in proportion to the atrocities committed by
him. No doubt the accused no.2 has killed an innocent child aged 2
½ years, however, whether such an act of accused constitutes
“rarest of rare case” to warrant capital punishment, is a matter for
consideration.
76. Recently this Court, in reported case of State of
Maharashtra .vrs. Rajesh Dhannalal Daware [2016 (2) Crimes
(HC) 592], has elaborately dealt with the aspect of imposing death
penalty in paragraph no.95 of its judgment. The same reads as
under :
“ The law as to in what circumstances death penalty would
be warranted or not, has been succinctly laid down by the
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Constitution Benches of the Hon'ble Supreme 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, the
Hon'ble Supreme Court have again reiterated the legal
position. It will be appropriate to reproduce 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 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
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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.”
It could further be seen that the Hon'ble Supreme Court
in its various decisions has culled out various aggravating and
mitigating circumstances. The principles have been laid down by the
Hon'ble Supreme 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
be consciously exercised having regard to the nature and
circumstances of the crime and all relevant circumstances. It has
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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.
77. Keeping in view the above settled principles, the case in
hand is to be decided on its own facts to see whether it falls in the
category of rarest of rare case to attract capital punishment. We
have briefly recapitulated the entire episode. Besides death of a
child, there is nothing uncommon to turn it as a most heinous or
rare case. One must remember that the accused was just 19 years
of age at the time of commission of crime who has no anticidents.
There was no previous enmity between accused no.2 and informant.
There are no circumstances to indicate that life imprisonment can be
construed as inadequate punishment. We do not find any reason to
believe that the accused cannot be reformed. There is no material
to hold that it is a crime of extreme brutality and would shatter
social fabric.
78. Considering all these circumstances, we are of the view
that the case in hand does not fall in the exceptional category of
rarest of rare case. The alternative punishment imposed by the trial
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court is of life imprisonment, which is well justified. As regards the
rest of the sentence is concerned, they appear to be in proportion to
the act committed by the respective accused, and does not call for
interference.
In view of the above discussion, we hold that the
appeals filed by accused no.2, State and informant are devoid of
any merit. The appeal of accused no.1 deserves to be partially
allowed only to the extent of setting aside his conviction and
sentence punishable under Section 201 of the Indian Penal Code.
Hence, we pass the following order.
ORDER
(1) Criminal Appeal No. 171/2017 filed by Accused
no.2 Akshay Kailash Purohit, stands dismissed.
(2) Criminal Appeal No. 409/2017 filed by State of
Maharashtra and Criminal Appeal No.410/2017
filed by informantSagar Bagani, also stand
dismissed.
(3) Criminal Appeal No. 220/2016 filed by accused
No.1Akshay Datta Pachange, is partly allowed to
the extent of quashing of sentence under Section
201 of the Indian Penal Code. Rest of the sentences
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passed by the Trial Court, are maintained as it is,
and to operate accordingly.
(4) The bail bonds of accused No. 1 shall stand
canceled. He shall surrender forthwith before the
trial Court to serve the remaining part of the
sentence.
(5) Muddemal property be dealt with after the appeal
period.
(6) The fees of the learned Advocate appointed to
represent the appellant – Akshay Kailash Purohit be
quantified as per Rules.
JUDGE JUDGE
Rgd.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NOS. 171/2017, 409/2017,
410/2017 AND 220/2016.
….
CRIMINAL APPEAL NO. 171/2017.
Akshay Kailash Purohit,
Aged about 19 years,
Occupation Labour, resident
of Sai Nagar, Telhara, Tahsil
Telhara, District Akola.
Convict No. C4884, detained
in Central Prison, Amravati. ... APPELLANT.
VERSUS
State of Maharashtra,
through P.S.O., Police Station
Telhara, Tahsil Telhara,
District Akola. … RESPONDENT.
–
Shri R.M. Daruwala, Advocate (Appointed) for the Appellant.
Shri S.S. Doifode, A.P.P. for the Respondent State.
WITH
CRIMINAL APPEAL NO. 220/2016.
Akshay @ Santosh Datta Pachange,
Aged about 19 years,
Occupation Labour, resident
of Gadegaon Road, Telhara, Tahsil
Telhara, District Akola. ... APPELLANT.
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VERSUS
State of Maharashtra,
through P.S.O., Police Station
Telhara, Tahsil Telhara,
District Akola. … RESPONDENT.
–
Shri S.V. Sirpurkar, Advocate for the Appellant.
Shri S.S. Doifode, A.P.P. for the Respondent State.
WITH
CRIMINAL APPEAL NO. 409/2017.
State of Maharashtra,
through P.S.O., Police Station
Telhara, Tahsil Telhara,
District Akola. ... APPELLANT.
VERSUS
Akshay @ Santosh Datta Pachange,
Aged about 19 years,
Occupation Labour, resident
of Gadegaon Road, Telhara, Tahsil
Telhara, District Akola. … RESPONDENT.
–
Shri S.S. Doifode, A.P.P. for the Appellant State.
Mrs. Jyoti Wajani, Advocate for the Respondent.
WITH
CRIMINAL APPEAL NO. 410/2017.
Sagar s/o Kedarkumar Bagani,
Aged about 31 years, Occupation
Business, resident of Telhara,
Tq. Telhara, District Akola. ... APPELLANT.
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VERSUS
1.State of Maharashtra,
through Police Station Officer,
Police Station Telhara, Tahsil Telhara,
District Akola.
2.Akshay @ Santosh Datta Pachange,
Aged about 21 years, Occupation
Labour, resident of Gadegaon Road,
Telhara, Tahsil Telhara,
District Akola.
3.Akshay Kailash Purohit,
Aged about 11 years,
Occupation Labour, resident
of Sai Nagar, Telhara, Tahsil
Telhara, District Akola.
(Respondent Nos. 3 presently
in jail at Akola). … RESPONDENTS.
–
Mrs. P.M. Chandekar, Advocate for the Appellant.
Shri S.S. Doifode, A.P.P. for the Respondent No.1 State.
Shri S.V. Sirpurkar, Advocate for the Respondent No.2.
CORAM : Z. A. HAQ AND
VINAY JOSHI, JJ.
Date of reserving the Judgment : 20.03.2019
Date of pronouncing the Judgment : 16.04.2019
JUDGMENT (PER VINAY JOSHI, J.) :
These appeals are arising out of judgment and order of
conviction dated 01.06.2016, passed by the learned Sessions Judge,
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Akot in Sessions Trial No.21/2014. Accused No.1 Akshay
Pachange and Accused No.2 – Akshay Purohit, were charged for
offences punishable under Sections 363, 364A, 302, 201, 120B read
with Section 34 of The Indian Penal Code, and Section 66A of The
Information Technology Act.
After holding full fledged trial, the learned Sessions
Judge has convicted accused No.1 for offences punishable under
Sections 363, 120B and 201 read with 34 of The Indian Penal Code,
whilst acquitted him for the offence punishable under Sections 302,
364A of The Indian Penal Code and Section 66A of The
Information Technology Act. Likewise, the learned Sessions Judge
has convicted accused No.2 for the offence punishable under
Sections 302, 363, 120B, 201 of The Indian Penal Code and
acquitted him for the offence punishable under Section 364A of The
Indian Penal Code and Section 66A of The Information Technology
Act. Different quantum of sentences have been awarded for the
proved offences, and directed to run them concurrently.
2. Accused No.2 Akshay Purohit has filed Criminal
Appeal No. 171/2017, challenging the order of conviction for the
offences stated above. Accused No.1 Akshay Pachange has also
challenged his conviction and sentence by filing Appeal No.
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220/2016. The State has challenged acquittal of Accused No.1
Akshay Pachanage for offence punishable under Sections 302, 364A
of the Indian Penal Code, vide Criminal Appeal No. 409/2017.
Likewise, the original informant vide Criminal Appeal no. 410/2017,
has challenged the acquittal of both the accused for respective
offences, and also sought for enhancement of the punishment.
3. During the trial, Accused No.2 refused to take legal
assistance from the Legal Aid Panel. The learned Sessions Judge
made every endeavor to convince him for seeking assistance of a
competent Lawyer from the panel of Legal Aid, but, he refused.
Since accused No.2 was under trial prisoner, and there was
considerable delay in the progress of the trial, the learned Sessions
Judge aptly appointed Advocate Ajit Deshpande as Amicus Curiae
to defend accused no.2. It emerges from the record that the learned
Sessions Judge took every care to see that the accused were properly
and ably represented and every opportunity was given to put up
their defence. In the appeal, no grievance is made that there was
no proper representation to accused no.2 before the trial Court. We
are satisfied from the record that every opportunity was given to
accused no.2 Purohit, and he was properly defended.
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4. The prosecution case, as emerges from the record, can
be stated as follows :
The informant Sagar Bagani, was running a hardware
shop at village Telhara, District Akola. His residence was abutting
his shop precisely on the rear side of his shop. He was residing with
his family, including his minor daughter Vishaka @ Lado,
( deceased) aged 2½ years. The informant had employed five
servants at his shop which included Accused no.1 – Pachange.
Minor Lado was looked after by accused no.1. The informant had
specifically directed accused no.1 that the child shall not be taken
anywhere except the shop and residence. On 27.02.2014, around 6
p.m., the informant was at his shop with the child. He asked the
accused no.1 to leave the child at his residence with her mother.
After half an hour, the informant returned to his residence after
closing the shop, but, did not find his daughter Lado. He searched
for Lado, and also tried to contact accused no.1. Within short
while, he had received a phone call from accused no.1, informing
that the accused no.2 – Purohit, had assaulted him, snatched Lado
and had taken her away. Immediately, the informant rushed to the
place i.e. near petrol pump, where he found accused no.1. On
enquiry, the accused no.1 gave evasive answers. The informant
suspected foul play, hence, he took accused no.1 to the police
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station. The Informant suspected that accused no.1 alongwith
accused no.2, had hatched conspiracy and had kidnapped Lado.
5. Accordingly, P.W.1 informant Sagar Bagani lodged the
report regarding kidnapping of his daughter Lado by accused no.1
Pachange and accused no.2 Purohit. On the basis of said oral report
regarding cognizable offence, initially crime came to be registered
vide crime No.121/2014 for the offence punishable under Section
363 read with Section 34 of the Indian Penal Code and P.W.13 P.I.
Nikam, commenced investigation.
6. During the course of investigation, the informant had
shown the place where he had entrusted Lado to accused no.1 of
which police drew panchnama. While accused no.1 was in
custody, he showed his willingness to show the place where he had
handed over Lado to accused no.2, of which memorandum
panchnama was drawn. Accused no.1 led police party towards the
Ther Road and took them to a field of gram. The police seized two
bicycles, one sandal of small child, one broken knife blade from said
place under panchnama. Accused no.2 was arrested around 3.30
p.m. on the following day i.e. on 28.02.2014. His blood stained
clothes were seized under panchnama. Accused no.2 expressed
desire to show the place where dead body of minor Lado was
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buried. Police recorded his memorandum statement. Accused no.2
led police to the field where maize crop was sown. He had shown
the place where Lado was buried, which was in between two rows
of maize crops. Accused no.2 had removed the soil under which
naked body of Lado was found. There was white colored string
around her neck. Police had collected mud from said place and had
drawn panchnama. Again after few days, accused no.2 expressed
that he is ready to show the place where he had concealed certain
articles. Accused no.2 led police to a field where maize crop was
sown, and there was some waste material near the Neem tree.
Accused no.2 removed the waste material and took out one Sandal
and clothes of child, so also he took out one broken grip of knife.
Police had seized all these articles and panchnama was drawn. The
seized articles were sent for chemical analysis. Statement of
relevant witnesses were recoded. After completion of investigation,
as there was sufficient material against both accused, police filed
final report in the Court of concerned Magistrate.
7. On trial, both the accused denied the guilt and put the
prosecution to the task of establishing the charges levelled against
them. The prosecution examined fifteen witnesses to establish the
charges levelled against the accused including the informant, panch
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witnesses, medical officer, witnesses who had last seen the victim
alongwith the accused and investigating officers. The prosecution
also banks upon certain documents of which contextual reference is
made.
8. The Trial Court recorded statement of the accused for
obtaining their explanation on incriminating material. Accused no.1
took a specific defence. It is his stand that on 27.02.2014, he was
proceeding with minor Lado towards the house of owner
(informant), however, on the way he was accosted by three
unknown persons, who assaulted and forcibly snatched Lado. After
said incident, he had conveyed about the incident to the informant
and had gone to police station. He had given report regarding the
incident, however, police had not taken cognizance. He was sent
for medical examination, since he had sustained injuries in the
assault. In short, he stated that he himself was the victim of the
incident, however, at the behest of the informant, he was falsely
implicated in the crime. Defence of accused no.2 – Purohit, is of
simplicitor denial and of false implication. He raised a faint plea of
alibi.
9. At the conclusion of the trial, the learned Trial Judge
convicted both the accused for the offence punishable under Section
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363 read with Section 34 of the Indian Penal Code and sentenced
them to suffer rigorous imprisonment for five years and fine of
Rs.5000/ and in default to suffer further rigorous imprisonment for
six months. The learned trial Judge also convicted both the accused
for the offence punishable under Section 201 of the I.P.C., and
sentenced them to suffer R.I. for 3 years and fine of Rs. 3500/, with
stipulation of default. Both are also convicted for the offence
punishable under Section 120B of the I.P.C. and sentenced to suffer
R.I. for 3 years and fine of Rs. 2000/ with default clause. The
learned trial Judge convicted accused no.2 Purohit for the offence
punishable under Section 302 of the I.P.C. and sentenced him to
suffer imprisonment for life and to pay fine of Rs. 10,000/, in
default further R.I. for eight months. However, the trial Judge
acquitted accused no.1 Pachange, for the offence punishable under
section 302 of the I.P.C. The trial Court acquitted both the accused
for the offence punishable under Section 364A of The I.P.C. and
Section 66A of The Information Technology Act.
10. Heard the learned Advocates for the parties,
exhaustively. With the assistance of learned Advocates appearing
for the parties, we have scrutinized the entire material on record.
Several citations have been referred by the learned Advocates.
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However, we do not wish to reproduce or refer to all of them, which
would unnecessarily flex the size of the judgment. Needless to
mention that we will be referring the judgments, which we consider
to be relevant.
11. Learned Public Prosecutor for the State, submitted that
in the present case the prosecution has proved all the incriminating
circumstances beyond reasonable doubt. He further submitted that
the prosecution has also established complete chain of events which
has proved every hypothesis about the guilt of accused and the
evidence on the circumstance of deceased last seen in the company
is finally established. He submitted that the time gap between the
deceased and accused seen together and the death of child occurring
is so narrow that it cannot lead to any other conclusion except that
the accused is guilty. He argued that several incriminating articles
were seized at the instance of the accused, particularly dead body
was recovered on memorandum under Section 27 of the Evidence
Act at the instance of the accused No.2. He further submitted that
the chemical analysis report and SMS for ransom are proved beyond
doubt to establish the guilt of the accused.
Learned Advocate for the informant argued on similar
line and urged for capital punishment.
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12. The learned Advocates for the accused No. 1 and
accused No. 2 advanced their submissions separately regarding the
respective accused, and generally on the prosecution case. It is
submitted that the prosecution case is full of lacuna. The witness on
last seen theory is planted and unreliable. Stock panch witness is
examined for recovery. The learned Advocates further submitted
that all the witnesses are acquainted with informant and they have
falsely deposed at the behest of the informant. It is submitted that
accused no.1 himself is victim of incident but is falsely implicated in
the crime. It is further submitted that the alleged recoveries at the
instance of accused are farcical and planted. The place from where
dead body was recovered was already known to the police. In the
totality of circumstances, it is submitted that prosecution case is
fabricated; chain of circumstances is incomplete and therefore, both
the accused deserve acquittal by allowing their respective appeals.
13. After examining the matter, we find that this case is
an example of heartless and perverse youth which recedes to the
lowest level. This case demonstrates distracted mind of youth,
which has left the informant and his family in sufferings.
14. 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 well crystallized by Their Lordships of the
Apex Court in the case of Sharad Birdhichand Sarda .vs. State of
Maharashtra (AIR 1984 SC 1622) . At the inception, it will be
appropriate to refer to the following observations of Their Lordships
in paragraph nos. 152 and 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
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that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency.
(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
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conclusion consistent with the innocence of the accused and
must show that in all human probability the acts must have
been done by the accused.”
15. The principle for basing conviction on the basis of
circumstantial evidences has been discussed in number of
decisions and the law is well settled that each and every
incriminating circumstance must be clearly established by reliable
and clinching evidence and the circumstances so proved must form
a chain of events from which the only irresistible conclusion about
the guilt of the accused can be safely drawn and no other hypothesis
against the guilt is possible. Various judgments clearly sounded a
note of caution that in a case depending largely upon circumstantial
evidence, there is always a danger that conjecture or suspicion may
take the place of legal proof. The Court must satisfy itself that
various circumstances in the chain of events have been established
clearly and such completed chain of events must be such as to rule
out a reasonable likelihood of the innocence of the accused. It has
also been indicated that when the important link goes, the chain of
circumstances gets snapped and the other circumstances cannot in
any manner, establish the guilt of the accused beyond all reasonable
doubts.
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16. At the inception, the learned Advocate for the accused
no.2 submitted that mere suspicion cannot take the shape of proof,
but, to establish the offence, the prosecution has to prove the case
beyond reasonable doubt. In this regard, he relied upon the
reported judgment in case of Sujit Biswas .vrs. State of Assam
[(2013) 12 SCC 406]. In the said case, the Hon'ble Supreme Court
held that it is the duty of the Court to ensure that mere conjectures
or suspicion do not take place of legal proof. Clear, cogent and
unimpeachable evidence is must before the accused is condemned
as convict.
17. Contextually, we wish to state that while appreciating
the oral testimony of witnesses and the circumstantial evidence in a
criminal case, the Courts shall advert to the observations laid down
in case of State of Punjab vrs. Jagbir Singh, Baljit Singh & Karam
Singh [1974 (3) SCC 277] wherein it is laid down as under :
"A criminal trial is not like a fairy tale wherein one is free
to give fight to one's imagination and fantasy. It concerns
itself with the question whether the accused arraigned at
the trial is guilty of the crime with which he is charged.
Crime is an event in real life and is the product of
interplay of different human emotions. In arriving at the
conclusion about the guilt of the accused charged with the
commission of a crime, the court has to judge the evidence
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by the yardstick of probabilities, its intrinsic worth and
the animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although the
benefit of every reasonable doubt should be given to the
accused, the courts should not at the same time reject
evidence which is ex facie trustworthy on grounds which
are fanciful or in the nature of conjectures."
18. Keeping in mind these principles of law, the evidence
needs to be scrutinized. However, before adverting to the evidence,
we find it apposite to make brief reference of undisputed facts, for
quick appreciation. There is no dispute that the deceased Lado was
daughter of the informant, the accused no.1 Pachange was servant
of informant and was looking after the child, on the date of
occurrence i.e. 27.02.2014, the informant had entrusted Lado to
accused no.1 for leaving the child at his residence. Besides that the
homicidal death of Lado is, undisputed. In the compass of these
admitted facts, we proceed further.
19. The prosecution relied on various of circumstances to
establish the charges. We have culled out the following
circumstances on which the prosecution relied and claimed that
these circumstances are firm, consistent and the chain is complete.
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1) Homicidal death of child by strangulation.
2) Both the accused were well acquainted with each other;
3) Entrustment of child to accused no.1.
4) Both the accused were last seen together with the child.
5) Child died while in custody of accused no.2.
6) Dead body of the child was recovered at the instance of
accused no.2.
7) Accused no.1 disclosed the place of occurrence from
where incriminating articles were seized.
8) Recovery of incriminating articles at the instance of
accused no.2.
9) Seizure of blood stained clothes of accused no.2.
10) Finding of blood Group “B” on the clothes of accused
no.2, which was the blood group of deceased Lado.
11) False and misleading explanation by accused no.1.
12) Demand of ransom.
13) Motive of ransom.
20. In order to establish aforesaid circumstances, the
prosecution has examined fifteen witnesses. The trial Court has
analyzed in detail the evidence of all the witnesses. We have
minutely gone through the evidence of relevant witnesses and all
documents which are held to be proved in the case.
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21. We will deal with each of the circumstance
independently. Since the circumstance of death of the child being
homicidal, is not disputed, we are not discussing the medical
evidence in detail.
22. It is the case of prosecution that Lado met with a
homicidal death. Defence has not challenged the homicidal death of
Lado, however, to establish charge of murder, it is prerequisite for
the prosecution to independently establish that the deceased met
with a homicidal death. In this regard the prosecution has
examined P.W.10 – Dr. Tapadia, who conducted autopsy around
8.50 p.m. on 28.02.2014. Besides that, the prosecution relied on
postmortem notes [Exh.99] and inquest panchnama [Exh.73]. A
bare look at the evidence of Dr. Tapadia, discloses that the cause of
death is due to “Asphyxia due to strangulation.” On external
examination, following injuries were found on the person of the
deceased :
(a) Abrasion 2.5 x 4 cms reddish in colour, Lft side of
nose above the lip.
(b) Ligature mark in form of abrasion with contusion 22
cm by 36 mm reddish brown in colour encircling the
neck upper part, prominent and broad anteriorly,
hemorrhage under the subcutaneous tissue under
mark.
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(c) Laceration circular 3 mm by 1 mm on right wrist
extensa surface.
At the time of postmortem examination, a white ligature was found
on the neck of the deceased. The defence has not projected any
other possibility of cause of death. The cause of death by way of
strangulation is not challenged. Since the death was by way of
strangulation, much exercise is not required to be undertaken, to
decide the nature of death. Therefore, we have no hesitation to
hold that the prosecution has ably proved that Lado died a
homicidal death.
23. This brings us to the evidence of informant – P.W.1 –
Sagar Bagani, who is father of ill fated child. It is his evidence,
that at the relevant time, he had entrusted Lado to his servant,
accused no.1, for leaving the child at his house. Accused no.1 had
taken the child somewhere else than leaving the child at the house.
As the child was not found in the house, he called accused no.1 and
learnt that accused no.2 had snatched the child and went away.
Since accused no.1 gave evasive answers, informant suspected and
took him to police station. Evidence of this witness is on the point
of entrustment of the child with accused no.1, and disclosure by
accused no.1 that the child was taken away by accused no.2.
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24. So far as the first aspect of entrustment is concerned, it
is not in dispute. Moreover, the informant has stated that the
accused no.1 had disclosed that the child was snatched by accused
no.2. It is the specific stand of accused no.1 that while he was on
the way along with the child, towards the informants house, three
unknown persons had assaulted him and had snatched the child.
Rather his defence is that he himself is victim of incident, but, has
been falsely implicated.
25. In support of said defence, the learned Advocate for the
accused no.1, has taken us through several admissions and has
referred to some documents to impress that accused no.1 sustained
bleeding injuries in the assault. True, there is material to disclose
that accused no.1 sustained injuries at relevant time. However, that
by itself is not sufficient to accept his contention and it requires
deeper scrutiny of all the circumstances to find worth of his
contention. The learned Advocate for the accused no.1 submitted
that the prosecution has not explained the injuries on the person of
accused, therefore, the prosecution's case is doubtful. In this regard
the defence placed reliance on the reported judgment in the case of
Lakshmi Singh and others .vrs. State of Bihar '(1975) 4 SCC
394)]. It was a case of assault in which the prosecution/victim
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failed to explain the injuries on the person of accused. In such
peculiar facts, it was held that the failure of prosecution to explain
the injuries caused to the accused would weaken the prosecution's
case. The case in hand has peculiar facts of its own. It is not a case
of an assault on prosecution witness, on which one could expect that
the witness should explain the injuries sustained by accused. It is to
be remembered that this is a case based on circumstantial evidence.
There are no witnesses who have seen the incident. All the
witnesses are on various circumstances. In such facts it is not
possible to expect the explanation from the prosecution witnesses.
Certainly the law would not expect such evidence in the facts of the
present case. Therefore, in the peculiar facts of this case, the
general proposition pressed into service would not apply.
26. It requires scrutiny of the prosecution's evidence to
decide the trustfulness of explanation given by the accused no.1.
Rather it requires serious consideration because, apparently accused
no.1 sustained certain injuries on his person at relevant time.
However, the learned prosecutor vehemently pointed out that the
accused no.1 is hiding the real state of affairs, and has given evasive
and different statement on said point. The circumstances reveal
that accused no.1 can only throw light on said aspect, therefore, we
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have gone through the relevant portion of the evidence. We find
that each time accused no.1 has changed colors. While answering
question no.11 in the statement recorded under Section 313 of the
Criminal Procedure Code, he came out with a story that at the
relevant time, it being Mahashivratri, he had gone to the temple
with the child, where people assaulted him. He stated that two
persons had assaulted and had snatched the child. At first blush
itself, this explanation seems to be unacceptable. When it was
festival of Mahashivratri, presumably there would be heavy rush in
the temple, and at such a busy place, the incident of snatching
child would not have gone unnoticed by the devotees. Pertinent to
note that the incident took place at Telhara, which is a small village.
Naturally most of the villagers are known to each other. If such
incident of snatching of child took place in the evening at the
temple, then the news would spread like a wind in the village.
However, the said story does not get support from any corner,
hence, it is unreliable.
27. The accused no.1 also gave written explanation in his
statement under Section 313 of the Code. This time he says that at
relevant time, he was proceeding from shop towards house of the
informant on bicycle with the child, but, three persons accosted him
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and forcibly snatched the child. Notably, this time he has changed
the alleged place of incident. Earlier he stated that the so called
incident of snatching took place at a temple, whilst later, he stated
that it occurred in between the shop and house of the informant.
28. Contextually, we may note that the informant's house
was just behind the shop, meaning thereby one is not required to
pass long distance to reach the house. It has come in the evidence
that his residence is just 2025 feet behind the shop. The said aspect
is not disputed by the defence. Therefore, even if it is presumed for
a moment that while accused no.1 was carrying the child from shop
to the house, and the incident occurred on the way, then certainly
the nearby persons would have witnessed the incident. The alleged
occurrence took place around 6 p.m. in the evening. In the
circumstances, if the horrifying incident of snatching a child had
taken place at a distance of 20 to 25 feet away from the informant's
shop, then certainly there would have been commotion and
informant would have known of the incident then and there only.
In that case, naturally accused no.1 would have gone to the owner's
shop to inform about the incidents, instead of going towards the
petrol pump which is quite away. Therefore, apparently the accused
no.1 was hiding the reality, and gave untrue and false explanation.
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Therefore, explanation given by the accused no.1 in this regard is
totally unacceptable and works against him.
29. There is another reason to discard his explanation.
Within few minutes of the occurrence of the incident, the accused
no.1 had stated to the informant that accused no.2 assaulted and
snatched the child. The said statement has come in the evidence of
P.W.1 Sagar Balani, as well as corroborated by FIR [Exh.41], which
was recorded within 2/3 hours from the occurrence of the incidnet.
However, accused no.1 had not disclosed that the accused no.2 was
involved in the alleged incident, but, stated about unknown
assailants. Thus, apparently he tried to screen the accused no.2,
which again adds a cause to disbelieve his explanation.
30. It is argued that as per the station diary entry no.152,
the police also investigated about the third assailant, therefore, the
explanation given by accused no.1 about unknown assailant is
acceptable. No doubt, the station diary entry no.152, speaks about
the third assailant, however, it very much bears the name of
accused no.2 along with accused no.1. It is the case of the
prosecution that accused no.1 gave misleading information,
therefore, such initial entry based on the information given by the
accused no.1 would not affect the prosecution case.
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31. Reverting back to the evidence of P.W.1 – informant,
he deposed that no sooner he met accused no.1 near petrol pump,
the later disclosed that the child was taken away by accused no.2. It
has come on record that accused no.1 and accused no.2 were friends
and frequently met each other. Therefore, it is difficult to accept
that accused no.2 forcibly took the child from accused no.1. In the
result, we are not satisfied about the explanation offered by accused
no.1, about the story of assault by unknown persons and snatching
of the child.
32. It brings us to consider the prosecution's case about the
conspiracy in between both accused to kidnap the child, raise
demand for ransom and eliminate the child. We may recapitulate
that the trial Court held that the prosecution has proved the
conspiracy to the extent of kidnapping of the child. Since the State
as well as the Original informant have challenged the acquittal of
both the accused from the charge of conspiracy on the point of
demand of ransom, and charge of murder as far as accused no.1 is
concerned, we are required to scan the evidence from said angle
also.
33. On the point of conspiracy, we must advert to the
settled principles in the field. It is difficult to prove conspiracy by
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direct evidence. The law with regard to the conspiracy has been
discussed by Their Lordships of the Apex Court in the case of
Damodar .vs. State of Rajasthan, (2004) 12 Supreme Court Cases
336 .
“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 120B of the
Indian Penal Code 1860.”
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
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a matter of common experience that direct evidence to prove
conspiracy is seldom found. Therefore, the circumstances proved
before, during and after the occurrence have to be considered to
decide the complicity of the accused.
34. Section 120A of The Indian Penal Code defines criminal
conspiracy, as under:
"120A. Definition of criminal conspiracy. When two or
more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is
designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
Explanation. It is immaterial whether the illegal act is the
ultimate object of such agreement, or is merely incidental
to that object."
Section 120B of The I.P.C. provides for punishment for
an offence of criminal conspiracy. The basic ingredients of the
offence of criminal conspiracy are:
(i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing to be
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done either (a) an illegal act; or (b) an act which is
not illegal in itself but is done by illegal means.
It is, therefore, plain that meeting of minds of two or
more persons for doing or causing to be done an illegal act or an act
by illegal means is sine qua non of criminal conspiracy. A
conspiracy is always hatched in secrecy and it is impossible to
adduce direct evidence of the common intention of the conspirators.
Therefore, the meeting of minds of the conspirators can be inferred
from the circumstances proved by the prosecution, if such inference
is possible.
In case of Mohammad Usman Mohammad Hussain
Maniyar & Ors. Vs. State of Maharashtra , (1981) 2 SCC 443) it
was observed that for an offence punishable under Section 120B of
The Indian Penal Code, the prosecution need not necessarily prove
that the perpetrators expressly agree to do and/or cause to be done
the illegal act, the agreement may be proved by necessary
implication.
In another case of Kehar Singh & Ors. Vs. State (Delhi
Administration) [(1988) 3 SCC 609] , the gist of the offence of the
conspiracy has been explained succinctly in the following words:
"The gist of the offence of conspiracy then lies, not in doing the act,
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or effecting the purpose for which the conspiracy is formed, nor in
attempting to do them, nor in inciting others to do them, but in the
forming of the scheme or agreement between the parties.
Agreement is essential. Mere knowledge, or even discussion, of the
plan is not, per se, enough.
35. Then in case of State (NCT of Delhi) Vs. Navjot
Sandhu @ Afsan Guru [(2005) 11 SCC 600], making exhaustive
reference to several decisions on the point, including in State
Through Superintendent of Police, CBI/SIT Vs. Nalini & Ors.,
Venkatarama Reddi, J. observed thus:
"Mostly, the conspiracies are proved by the
circumstantial evidence, as the conspiracy is seldom an
open affair. Usually both the existence of the conspiracy
and its objects have to be inferred from the
circumstances and the conduct of the accused (per
Wadhwa, J. in Nalini’s case at page 516). The well
known rule governing circumstantial evidence is that
each and every incriminating circumstance must be
clearly established by reliable evidence and "the
circumstances proved must form a chain of events from
which the only irresistible conclusion about the guilt of
the accused can be safely drawn and no other hypothesis
against the guilt is possible." (Tanviben Pankajkumar
case, SCC page 185, para 45). G.N. Ray, J. in
Tanibeert Pankajkumar observed that this Court should
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not allow the suspicion to take the place of legal proof."
Thus, it is manifest that the meeting of minds of two or
more persons for doing an illegal act or an act by illegal means is
sine qua non of the criminal conspiracy, but it may not be possible
to prove the agreement between them by direct proof. Nevertheless,
existence of the conspiracy and its objective can be inferred from the
surrounding circumstances and the conduct of the accused. But the
incriminating circumstances must form a chain of events from which
a conclusion about the guilt of the accused could be drawn. It is well
settled that an offence of conspiracy is a substantive offence and
renders the mere agreement to commit an offence punishable even
if an offence does not take place pursuant to the illegal agreement.
36. Though the nature of proof to prove conspiracy is
diluted, however, there must be circumstances, from which an
agreement to do an illegal act can be inferred. We are conscious
that the conspiracy is hatched in the mind of a conspirator,
therefore, it is hard nut to crack, but, still the material must disclose
that a reasonable inference of conspiracy could be safely drawn
from these circumstances. It is the prosecution case that both the
accused were well acquainted with each other, rather they were
friends. It has come in the evidence of P.W.6 – Vijay Chormale, that
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the accused no.1 was well acquainted with accused no.2, who lived
at his house. He has deposed that accused no.1 occasionally used to
meet accused no.2 and both used to go out for a walk. P.W.8 –
Madanmohan Oza, had stated that on 27.02.2014, he had seen both
the accused near temple. P.W.7 – Dirajkumar Padiya, has stated
about the incident dated 25.02.2015, when he saw both the
accused together at Dattawadi. P.W.9 Gajanan Gothe, has also
stated that on 2/3 occasions, he had seen both the accused sitting
together near the Neem tree in the field. The consistent evidence of
these witnesses clearly conveys that these two conspirators had
intimacy with each other.
The evidence of these witnesses further discloses that
two days prior to the occurrence they had gone to Dattawadi, along
with the child. Moreover, on the date of occurrence, accused no.1
took the child in the evening in the field, where accused no.2
arrived. These circumstances indicate that there was well designed
plan, since accused no.2 was well aware, about the place and went
to the place as per design.
37. After arrest, the accused no.1 had expressed desire to
show the place where he had handed over the child to the accused
no.2. Police recorded memorandum statement in presence of P.W. 3
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Prashant Vikhe. The police visited the place and seized the bicycle
of informant used by accused no.1 and another bicycle of Hero Jet
Company. Contextually, we have gone through the evidence of
P.W.6 – Vijay Chormale, where it has come on record that on
27.02.2014, in the evening at the request of accused no.2 he had
given his bicycle to him. He has identified the bicycle owned by
him. His evidence strengthened the presence of accused no.2 on
the spot where the girl was handed over. These circumstances,
clearly convey that both had engineered a plan and in pursuance
thereof, accused no.2 was waiting at the specified place i.e. gram
field, where accused no.1 went with the child, as designed.
Therefore, it can be well inferred that at least there was a prior
meeting of mind in between both the accused to kidnap the minor
from lawful custody of her parents, and we hold accordingly.
38. The learned Advocate for the accused no.1 vehemently
argued that the offence of kidnapping cannot be proved against
accused no.1. It is submitted that accused no.1 himself was lawful
custodian of the child, therefore, the offence of kidnapping cannot
be established against him. According to him,the offence can be
said to be committed/completed when the child was taken from his
custody [custody of accused no.1]. In short, it is the contention
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that accused no.1 being lawfully entrusted with the custody of the
child, he cannot be charged with the offence of kidnapping. In
order to impress said submission, initially he relied on the reported
judgment in case of State .vrs. Harabsingh Kisansing (AIR 1954
Bom 339) . In said case, this Court has explained the term “lawful
guardian”, as employed in Section 361 of the Indian penal Code. It
is observed that as per the explanation to Section 361 of the Indian
Penal Code, the term “lawful guardian” includes any person lawfully
entrusted with the care or custody of a minor. In short, the term
“lawful guardian”, is to be liberally construed and not in the strict
sense like “Legal Guardian”. The observations of said case can be
read only to that limited extent. Rest of the conclusions are on the
basis of the facts of that case.
In said case, one Abbas, who was second husband of
the mother of child, filed complaint with the police about
kidnapping. The mother of child was not examined to show that
the child was taken from her custody without consent. In that
context, it was ruled that a person to whom a child is entrusted
comes within the compass of term 'lawful guardian', and therefore,
his evidence is sufficient to prove kidnapping. Basically the object of
Section 361, seems as much to protect the minor child from being
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seduced for improper purpose and also to protect the rights and
privileges of the guardian. The legislature has specifically explained
the term 'legal guardian', so as to remove the mischief and to
constitute an offence of kidnapping even if the child is taken from
anybody, who was lawfully entrusted with the custody of the child.
39. The learned defence Advocate further relied on the
reported judgment in the case of Parkash .vrs. State of Haryana
[(2004) 1 SCC 339] , on very same aspect. In the said case, the
Hon'ble Supreme Court ruled that taking or enticing need not be
shown to have been by means of force or fraud, but, guardians
consent is material. These are the general principles explaining the
essential ingredients to constitute an offence of kidnapping, as
defined under Section 361 of the Indian Penal Code. The informant
also relied on the very same judgment to explain the meaning and
essentials to constitute the offence of kidnapping.
40. Coming to the submission that there cannot be an
offence of kidnapping against accused no.1, we do not find any
merit in said contention. The said argument is based on the
admitted fact that accused no.1 was entrusted with the custody of
child, and therefore, he being the lawful guardian, cannot be termed
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as a kidnapper. If said proposition is accepted, then a servant or
anybody who was temporarily entrusted with the custody of the
child would escape from the clutches of law, though he takes child
with deceitful intent. No doubt, in the case at hand, accused no.1
was lawfully entrusted with the custody of the child to hand it over
to her mother. Accused no.1 was under the umbrella of the term
'lawful guardian', till he acted in accordance with his role and
particularly, as per the directions of his master. No sooner, he
exceeded his limit or violated the specific direction, he comes out of
the purview of lawful guardian and would turn kidnapper, if rest of
the ingredients are proved.
41. It has come in the evidence of the informant that he
had specifically warned accused no.1, not to take the child
anywhere else, except his shop and house. At this juncture, we may
recall the evidence of P.W.7 – Padiya. It has come in his evidence
that two days prior to the incident i.e. on 25.02.2014, he had seen
accused no.1 with child near Dattawadi area, and he had informed
about it to the informant. In this regard, it has come in the evidence
of P.W.1 informant that on 25.02.2014, Padiya (PW 7), had come to
his shop and had enquired as to how accused no.1 went to
Dattawadi with child. Informant specifically deposed that after
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getting knowledge about the incident he had scolded accused no.1
and had strictly warned that the child should not be taken anywhere
except the house and the shop. This piece of evidence had gone
unchallenged as well as, there is no reason to disbelieve the same.
Moreover, informant deposed that, at the relevant time he had
entrusted the custody of the child with the accused no.1 and had
specifically asked him to hand over the child at his house to his wife.
In the circumstances, though accused no.1 temporarily assumed the
character of lawful guardian, but, as soon as he went to gram field,
against the directions of his master, he came out of that character,
and therefore, the argument advanced by the defence cannot be
accepted. The attempt of defence to clothe accused no.1 with the
character of lawful guardian cannot save him because he lost that
character when he took the child deceitfully to gram field and
handed over to his companion.
42. This takes us to the crucial aspect of the case relating
to the evidence on the point of last seen together, meaning thereby
the deceased was last seen in the company of the accused. It is
prosecution's case that on 27.02.2014, around 6 p.m., deceased
Lado was last seen with both accused and then within 24 hours, her
dead body was recovered. Undoubtedly, it is settled legal
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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,is so small that there may not be any possibility that any
person other than the accused may be the author of the crime.
The conviction on the basis of “last seen theory” and
the circumstantial evidence is accepted in our jurisprudence. The
“last seen together theory” will apply with greater force in cases
where the victim is of tendering age and / or where the mobility of
the victim is restricted because of some physical deficiency /
deformity. The time gap between sighting of the victim in the
company of the accused and death of the victim is a relevant factor
as there is a chance that after the victim was lastly seen in the
company of the accused, the victim might have moved away from
the accused and the death is caused by some person other than the
accused. But in a case where the victim is a child of tender age or
where the victim is suffering from physical deficiency / deformity
because of which independent mobility of the victim is restricted
and the victim is not able to move on his/her own, the time gap
between the sighting of the victim in the company of the accused
and the death of the victim will not be fatal to the case of
prosecution. Of course, this will depend on the other evidence on
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record also.
In the present case, the victim was aged about 2 ½
years and the evidence on record shows that the accused no. 1 had
been entrusted with the work of taking the child from the house of
the informant to the shop of the informant and from the shop of the
informant to the house of the informant. We have recorded that as
per the evidence on record, the child was handed over by accused
no. 1 to the accused no. 2. The accused no. 2 had taken away the
child and then dead body of the child was recovered on the
following day i.e. time gap was very short. In these facts, the “last
seen theory” would apply with full force and this is a strong
circumstance pointing out the guilt of the accused no. 2.
43. The prosecution has examined P.W. 9 Gothe, who is a
star witness on the point of last seen theory. It has come in his
evidence that on 27.02.2014, around 6.30 p.m., while returning
from the field, he had seen both accused along with the child. He
specifically deposed that both were talking with each other and
walking holding their bicycles. Evidence of this witness is largely
criticized on the ground of delay in recording of his statement. The
leaned Advocate for the appellant endeavored to draw home the
point that the credibility of the testimony of the said witness is
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impaired on account of delay in recording of his statement under
Section 161 of the Criminal Procedure Code. It is argued that
though this witness was very much available on the day of incident,
however, his statement was recorded after four days. In the context
of factual scenario, according to the learned Advocate for the
appellant, the delay is inordinate. It is trite, that mere delay in
recording the statement of witness by itself could not be a ground to
discard his testimony. Two factors assume significance, where
credibility of testimony of witness is questioned on account of
delayed interrogation (1) Whether there is plausible explanation for
such delay and secondly, are their any concomitant factors or
circumstances, coupled with delay, which renders it unsafe to place
reliance on the testimony of such witness.
In this context, a useful reference can be made to the
ruling of the Hon'ble Supreme Court in the case of State of U.P.
V/s. Satish [(2005) 3 SCC 114] , wherein the position is explained
in following words :
“18. As regards delayed examination of certain
witnesses, this Court in several decisions has held that
unless the Investigating Officer is categorically asked as
to why there was delay in examination of the witnesses
the defence cannot gain any advantage therefrom. It
cannot be laid down as a rule of universal application
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that if there is any delay in examination of a particular
witness the prosecution version becomes suspect. It would
depend upon several factors. If the explanation offered
for the delayed examination is plausible and acceptable
and the court accepts the same as plausible, there is no
reason to interfere with the conclusion [See Ranbir and
Ors. v. State of Punjab (1973) 2 SCC 444, Bodhraj
@Bodha and Ors. v. State of Jammu and Kashmir,
(2002) 8 SCC 45 and Banti @ Guddu v. State of M.P.
(2004) 1 SCC 414.
19. The High Court has placed reliance on a decision of
this Court in Ganesh Bhavan Patel and Anr. v. State of
Maharashtra, (1978) 4 SCC 371. A bare reading of the
fact situation of that case shows that the delayed
examination by IO was not the only factor which was
considered to be determinative. On the contrary it was
held that there were catena of factors which when taken
together with the delayed examination provided basis for
acquittal.
20. It is to be noted that the explanation when offered by
IO on being questioned on the aspect of delayed
examination, by the accused has to be tested by the
Court on the touchstone of credibility. If the explanation
is plausible then no adverse inference can be drawn. On
the other hand, if the explanation is found to be
implausible, certainly the Court can consider it to be one
of the factors to affect credibility of the witnesses who
were examined belatedly. It may not have any effect on
the credibility of prosecution's evidence tendered by the
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other witnesses”.
Reverting to the evidence of P.W.9 Gajanan, admittedly
his statement was recorded by the police on 05.03.2014. Notably,
defence has not categorically asked the explanation to the
investigating officer about delay in recording of statement. If such
explanation was sought and the investigating officer had offered
explanation, then it would have been tested on the touchstone of
credibility. In absence of that, mere delay ipso facto would not
affect the credibility of the witness.
44. P.W.9 Gajanan, during cross examination, though
admited that he was cultivating the field of informant, however, he
denied that he was in good relations with the informant's family.
The defence was not able to bring enmity of this witness with the
accused. Normally, a witness is considered to be an independent
unless he springs from the waves which appear to be tainted with
enmity. Here again it would depend on the facts of each case.
P.W. 9 Gajanan, had no enmity with the accused and he
is an independent and natural witness. Since he revealed the truth
after some time, that cannot be a factor to discard his evidence in
toto. There cannot be a prosecution case with cast iron perfection in
all respects, and it is obligatory for the Courts to analyze, sift and
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assess the evidence on record, with particular reference to its
trustworthiness and truthfulness and natural conduct of the parties.
The entire evidence with reference to broad and reasonable
probabilities of the case is to be seen.
45. To impeach the evidence on last seen theory, the
defence relied on the reported case of Ashraf Hussain Shah .vrs.
State of Maharashtra (1996 CLR L.J. 3147) . In said case, this
Court disbelieved the witness since there was delay in recoding
statement. Infact the said conclusion was based on the facts of that
case. In said case two witnesses had seen the incident, then they
were at police station for 1 ½ hours, still they had not disclosed the
incident to police, and therefore, their delayed disclosure was
disbelieved. The said case is distinguishable on facts, because, in
said case the witnesses had allegedly seen the actual incident of
assault, still they preferred to remain silent despite sitting in police
station. In case at hand, on the day of incident, P.W.9 Gajanan,
alongwith other villagers had gone to police station, but had not
disclosed that he had seen the child with the accused. The marked
distinction is that this witness had not seen any assault or gruesome
act so as to immediately disclose about the incident to the police, as
a natural reaction. What he had seen is just a routine affair that the
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servant was proceeding with master's kid and nothing else. Since it
was an usual affair for him, he had not paid attention nor thought it
to be of importance to disclose. It is to be remembered that this
witness is a rustic agriculturist. Therefore his nondisclosure of
routine affair for few days cannot be treated as a weakness in
prosecution's case, unless his evidence is found to be unworthy.
46. In view of the attaining facts and legal position coupled
with the circumstances in the case at hand, we are not persuaded to
accede to the submission made on behalf of the appellant that the
testimony of P.W.9 Gajanan is untrustworthy, solely on account of
delay in recording his statement under Section 161 of The Code of
Criminal Procedure. His evidence is found to be natural, truthful
and credit worthy, therefore we hold that the prosecution has
proved that on 27.02.2014, around 6.30 p.m. deceased Lado was
last seen alive in the company of both accused.
47. The defence submited that the last seen together theory
itself is not sufficient to rope the accused in the crime. To uphold
said submission, reliance is placed on the reported case of Gambhir
.vrs. State of Maharashtra [(1982) 2 SCC 351] . In the said case,
on the basis of the facts, it was observed that last seen together by
itself was not sufficient to connect the accused with the crime. True,
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it is risky to convict the accused only on the basis of last seen
together evidence, but, in case at hand, there are several other
circumstances which unerringly points the complicity of the
accused.
It has come in the evidence that dead body of Lado was
found at the instance of accused no.2, on the following day around
6.30 p.m. Apart from the recovery of dead body at the instance of
accused no.2, it is an well established fact that within 24 hours of
deceased seen in the company of accused, dead body was found. Of
course we are coming to the evidence on the point of discovery of
dead body at the instance of accused no.2 after short while. It is
evidence of P.W.10 Dr. Tapadia, that the death might have occurred
in between 12 to 24 hours prior to the postmortem, which was
conducted on 28.02.2014 around 8.50 p.m. Though the defence
tried to create doubt on the experts opinion on the point of death
on theoretical proposition, the expert's evidence cannot be lightly
brushed aside. As per his opinion, the death might have been
during the night between 27.02.2014 and 28.02.2014, meaning
thereby within few hours when the victim was “last seen”, with the
accused. In the circumstance, we found that the last seen theory is
very much intact due to very short time gap between the two things.
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Since the victim was child barely aged 2 ½ years having no mobility,
we hold that this is strong peace of circumstances against the
accused No.2.
48. Then the prosecution relied on various memorandum
and consequential discovery at the instance of both accused. Rather
this is an important link which prosecution tried to establish by
tendering various memorandum, seizure panchnamas and
examining the relevant witnesses in support thereof. For this
purpose, the prosecution heavily relied on the evidence of P.W.3 –
Prashant, who is Panch witness. The learned Advocate appearing
for the defence would submit that this witness was panch for all
disclosures and seizures, therefore, he cannot be relied upon, being
stock witness. Merely because the police repeatedly called him at
the time of execution of memorandum and seizure panchnamas,
that by itself cannot be the ground to discard his evidence, if
otherwise, found credit worthy. His evidence requires usual
scrutiny.
49. It is argued that P.W.15 – Dy.S.P. Rashni Nandekar, had
admitted that accused no.1 was takenout from lockup for
interrogation in between 2.25 a.m. to 4.35 a.m. on 28.02.2014, and
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therefore, the disclosure and recovery shown in the morning is not
reliable. It is submitted that the investigation was handed over to
Dy.S.P. Nandekar, on 01.03.2014, therefore, the same also creates
doubt. We are not ready to accept said submission because P.W.15
Dy.S.P. was a superior officer and had every right to monitor the
investigation, though formally it was not handed over to her.
Secondly, though she interrogated accused no.1 during the night
intervening 28.02.2014, and it does not mean that in the morning
again there was no interrogation and disclosure.
50. It has come in the evidence of P.W.3 – Vikhe that on
28.02.2014, in his presence accused no.1 had expressed willingness
to show the place where he had handed over child to accused no.2.
Accordingly memorandum panchnama [Exh.48], was prepared. It
is his evidence that thereafter, accused no.1 led all of them from
police station towards Thar road and had asked to halt vehicle near
a field of gram. The accused no.1 led all of them on foot to the
Neem tree. On inspection, police had found one cycle bearing name
on chain cover as K.S. Bagani (informant). Another cycle a sandal
of small child and one broken knife blade were seized from said
place and panchnama [Exh.49] was drawn. This witness is cross
examined at length, but, nothing has come out because of which his
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testimony can be discarded. This witness has shown the place
where child was transposed in the custody of accused no.2, which is
confirmed by the circumstance of finding of cycles of both the
accused as well as sandal of small child. This is an important
circumstance which lends support to the evidence of this witness
and it also speaks about involvement of both the accused.
51. The prosecution next relied on the vital circumstance of
finding dead body at the instance of accused no.2. On the point of
recovery of dead body, evidence of P.W.3 is crucial. P.W.3 Vikhe, is
a panch witness on the memorandum under Section 27 of The
Indian Evidence Act. He has stated that on the same day i.e.
28.02.2014, around 6 p.m. he was called by police to act as Panch
witness. In his presence accused no.2 had stated that he was ready
to show the place where Lado's dead body was buried. Accordingly
police had recorded memorandum panchnama – Exh.51.
Thereafter, accused no.2 had led them near the field of gram, and
then to the field where maize was sown. Accused no.2 had pointed
out a heap of soil between two rows of crop and had stated that he
had buried Lado at said place. Accused no.2 had removed the soil
and naked dead body of a small girl was found. There was a white
coloured string on her neck. The police called the informant for
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identification of the body, and accordingly panchnama [Exh.52] was
drawn. Except for the objection of using same panch for different
panchanma, nothing material is pointed from the side of defence to
discredit his evidence.
52. The defence, while criticizing the evidence on the point
of finding dead body at the instance of accused no.2, argued that
the policemen were already knowing the place where dead body
was buried, and therefore, the memorandum and discovery is of no
significance. This submission is primarily based on the informants
admission that when the dead body was found, he was present on
the spot. Infact this is a distorted submission, because it has come
in the evidence that no sooner the dead body was unearthed, the
police summoned the informant to identify the body. This was the
reason for the informant's presence at relevant time, therefore, the
said admission cannot be read out of context.
53. Defence tried to make a point about summons/notice
Exh.71, issued by police for calling this witness to act as panch.
True, summons [Exh.71] issued to the panch witness states that
accused no.1 and accused no.2 were to make disclosure statement,
for which panch witness was called. It is argued that P.W. 3 Vikhe,
received summons in the morning, which bears name of accused
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no.2 also, who was infact arrested in the afternoon at 3.30 p.m.
Therefore, according to the defence, the panchnamas are not
genuine, but, fabricated one. In this regard the defence took us
through the evidence of P.W.13 – P.I. Nikam, who admits that the
said summons/notice was served in the morning of 28.02.2014.
Though P.I. Nikam, admits accordingly, however, P.W.3 Vikhe,
clarified that Exh.71 is not the summons by which he was called in
the morning. He explained that he had received the Summons
Exh.71, in the evening and further added that he had received total
7 to 8 summons, therefore, inadvertent admission on the part of the
investigating officer would not discredit the prosecution case as
against the specific evidence of panch witness, P.W.3 Vikhe.
Though P.W.3 Vikhe has faced searching cross examination, it
remained abortive. Evidence on the point of memorandum and
disclosure of dead body at the instance of accused no.2 is specific
and credit worthy. This circumstance is duly proved by the evidence
of P.W.3 Vikhe coupled with the evidence of P.W. 13 PI Nikam.
Rather it is very important link to connect accused no.2, since the
place where dead body was buried was within his exclusive
knowledge. Though it is argued that the recovery from open place
is inadmissible, however, the evidence indicates that the dead body
was buried beneath the surface of land and therefore, it can be well
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presumed that accused no.2 was in exclusive knowledge of the
place where the body was buried. We must note that arrest
panchnama [Exh.72], of accused no.2 shows that there are bite
marks on his arm which reaffirms the complicity of accused no.2 in
the crime.
54. The leaned Advocate for the accused no.2 argued that
only on the basis of disclosure and recovery, the accused cannot be
convicted. In this regard he placed reliance on the judgment in case
of Vijay Thakur .vrs. State of Himachal Pradesh [(2014) 14 SCC
609] . In said case, the Hon'ble Supreme Court laid down a general
proposition that, it would be risky to convict a person solely on the
basis of alleged disclosure, when recovery is also shrouded with
element of doubt. This case is distinguishable on facts, since in case
at hand the recovery of dead body as well as other articles have
been proved through reliable evidence. Inasmuch as, the conclusion
of guilt is drawn as a cumulative effect of several circumstances, and
not only on the basis of disclosure and recovery. In substance,
finding of dead body from exclusive knowledge of accused no.2 is a
strong circumstance which heavily goes against him.
55. On 04.03.2014, again accused no.2 expressed desire to
disclose the place where certain incriminating articles were
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concealed by him. This time, police called P.W.4 – Balaji Kendre as
panch witness. It has come in his evidence that accused no.2 stated
that he had concealed clothes of deceased, knife, and sandal of child
which he was ready to show. Accordingly memorandum
panchnama [Exh.80] was drawn. It is his evidence that thereafter,
accused no.2 led them to the field where maize crop was sown.
Particularly he took them near waste material kept at the side of the
tree, and pointed that he had concealed the articles at said place.
The accused no.2 removed the waste and took out a sandal and
clothes of small child, namely reddish colour jacket with blood
stains, hosiery half shirt and hosiery full pant. Then accused no.2
took them at some distance and took out a broken knife and all
these articles were seized under panchnama Exh.82. The evidence
of this witness withstood to the scrutiny of cross examination.
Moreover, the evidence of P.W.15 – Dy.S.P. Smt. Nandedkar,
corroborates the memorandum and seizure panchnama. The trial
Court has rightly appreciated said evidence on memorandum and
consequential seizure of incriminating articles from accused no.2.
Finding of blood stained clothes of small kid at the instance of
accused no.2, is one another strong piece of circumstance against
accused No.2.
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56. The learned Advocate for accused no.2 submitted that
mere recovery is not admissible unless its link with the crime is
established. On said point he sought to rely on a reported judgment
in case of Digambar Vaishnav and another .vrs. State of
Chattisgarh [2019 Supreme (SC) 249]. In said case, it is ruled
that under Section 27 of The Indian Evidence Act, it is not discovery
of every fact that is admissible, but, discovery of relevant fact alone
is admissible. No doubt, recovery is nothing but a link between the
facts discovered with the crime. At the instance of accused no.1, the
place where Lado was handed over to accused no.2 was disclosed.
At said place, two bicycles, sandal and broken blade of knife was
found, which very much linked to the crime. Not only these articles
speaks about the occurrence, but, it also links accused no.2 as since
his bicycle was found and particularly, presence of child was
established at said place since one sandal was found. About
recovery on 04.03.2014 at the instance of accused no.2, is
concerned, it very much establishes a link between accused no.2 and
the crime. Blood stained clothes of a child were recovered, which is
highly incriminating circumstance in the background, that a naked
dead body of child was found. Moreover, recovery of a sandal and
broken knife, reaffirms the connection of accused no.2 with the
incident.
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57. One more circumstance which suggests complicity of
the accused is the chemical analyser's report. The prosecution has
relied upon the expert evidence. It has come in the evidence that in
presence of panch witnesses, clothes of deceased were seized at the
instance of accused no.2. The police also seized blood stained
clothes of accused no.2. All seized articles were forwarded to
chemical analyzer vide letter Exh.135. The chemical analyzer's
report Exh.18, indicates that on the half Tshirt of accused no.2,
blood of “B” group was found, which was of the deceased. Though
human blood was found on jeans of accused no.2, however, the
blood group was not detected. The defence argued that since there
were no bleeding injuries on the person of the deceased, the
evidence in this regard is of no significance. On perusal of the
postmortem notes, it reveals that the deceased had three injuries on
her person. Injury no.1 was Abrasion of reddish colour and injury
no.3 was laceration of circular shape. One must note that the
deceased was barely 2 ½ year old child, who had less mobility.
Therefore, the accused no.2 might have lifted the child in arms and
in such peculiar facts, the possibility of presecne of blood stains on
the front portion of clothes, may be from abrasion or laceration,
cannot be ruled out. It is pertinent to note that there were
moderate number of blood stains mostly on the front portion of the
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shirt and pant of accused no.2. Therefore, finding of blood of “B”
group, which is of deceased, on the clothes of accused no.2, is a
vital circumstance, which strongly goes against the accused no.2.
Moreover, there is no explanation by accused no.2 in this regard.
58. Now we propose to deal with the evidence on the point
of kidnapping for ransom, punishable under Section 364A of the
Indian Penal Code. The trial Court has held that the prosecution
failed to establish the charge of kidnapping for ransom against both
the accused. The State as well as the informant has challenged the
acquittal on said count by filing separate appeals. The learned
Advocate for accused no.2 vehemently argued that the trial court
acquitted the accused of said charge, therefore, inherent
presumption of innocence has been strengthened. According to
him, unless there is perversity in the reasoning and findings of trial
Court, the conclusion of acquittal can not be disturbed in appeal. In
order to buttress said submission, he relied on the reported
judgment in case of State of Rajasathan .vrs. Shera Ram @
Vishnu Dutta [(2012) 1 SCC 602]. In the said case, the Hon'ble
Supreme Court has explained the scope of appeal, against acquittal.
It is observed that on limited grounds, the acquittal may be
overturned. The presumption of innocence is fortified by acquittal
and therefore, unless the judgment of trial Court is contrary to the
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evidence, palpably erroneous or the view could not have been taken
by the Court, it cannot be reversed in the appeal. Also reliance is
placed on the judgment in case of Madathil Narayan and others
.vrs. State of Kerala and another [(2018) 14 SCC 513], wherein
the very same principle has been reiterated.
To amplify the settled position in the field, we may
refer to the decision of Hon'ble Supreme Court in case of Joginder
Singh and another .vrs. State of Haryana [(2010) 15 SCC 407) ,
wherein it is ruled that mere fact that a view other than one taken
by the trial Court can be legitimately arrived at by the Appellate
Court on reappraisal of evidence, cannot constitute a valid and
sufficient ground to interfere with the order of acquittal, unless
there is perversity.
In the light of this settled position of law, we have
examined the evidence on the point of demand for ransom. The
term 'ransom' has not been defined in the Code. The term “ransom”
means sum of money demanded or paid for release of a captive.
The learned Advocate appearing for the informant initially
submitted that it is not necessary for the prosecution to prove from
whom the ransom call was received. In this regard, he relied on the
reported case of Balaso Maruti Kale and another .vrs. State of
Maharashtra [2002 All MR (Cri) 2627]. He submited that there is
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no straight jacket formula that the demand of ransom has to be
made to a person who ultimately pays. In support he relied on the
judgment of Hon'ble Supreme Court in case of Malleshi .vrs. State
of Karnataka [2004EQ (SC) 898]. True, there can be no definite
manner/mode in which the demand can be made and to whom it is
made. Some time, kidnapper may make the demand to the parents
or some time to any other person who is closely connected to the
payee. Similarly, the culprit may raise demand by any mode of
communication for which there can be no set rules. However, the
prosecution has to establish the demand, may be by any mode of
communication to any connected person, which should appear to be
trustworthy in the facts and circumstances of the case.
59. To establish the case of demand for ransom, the
prosecution's case is based on the evidence of P.W.6 Vijay. It is his
evidence that he was well acquainted with accused no.2. On the
date of occurrence, accused no.2 took his bicycle, which fact has
been discussed earlier. Moreover, for some days accused no.2 was
also sojourn at his house. In such a background, he stated that he
had received a message in English language on his mobile, which
was allegedly the demand for ransom. He was quick enough to
clarify that he was not knowing English language. He deposed that,
he had shown the mobile to the informant, and then to police on
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which the police informed that the said mobile contained a message
of demand of Rs. 1 Crore for release of child. This is precisely the
evidence led by the prosecution to prove the demand of ransom.
Admittedly there is no other evidence to prove the demand for
ransom.
60. In present time, electronic evidence assumes great
significance, since it carries high value. The aspect of eevidence
and about its proof is elaborately discussed by the Hon'ble Supreme
Court in case of Anwar .vrs. Basheer [2014 (6) All MR (Cri) 951].
It is observed that eevidence is to be proved by producing original
electronic media as primary evidence or its copy as secondary
evidence with requisite certification. Mere production of mobile is
of no significance. Neither SMS print out, nor CD of contents is
produced. Investigating Officer has not taken pains to preserve and
prove this sole piece of evidence.
The trial Court has criticized said evidence from every
possible angle. It is held that the message for ransom is not at all
proved. Admittedly the electronic evidence about the text of the
ransom message has not been brought on record and proved by the
prosecution. Infact it was quite easy for the investigating agency to
lead such evidence when police had allegedly seen the ransom
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message and had seized the mobile. In absence of said evidence, it
is very difficult to rely on the evidence regarding demand of ransom.
61. The prosecution case is so nebulous, that even by any
stretch of imagination it cannot be held that there was demand for
ransom. P.W.6 Vijay, is merely an agriculturist and was tilling the
field of P.W.1 informant. The prosecution has not explained as to
what was the reason for the culprit to send the ransom message in
English to an agricultural labour, who was not knowing English
language. This witness is silent on the point as to who had sent the
said message. We fail to understand that when P.W.6 Vijay was
unable to understand English language, what occasioned him to
show said particular message to the informant and police. It is a
common phenomena that in present time, one receives number of
marketing messages on and often. In such a scenario, it is difficult
to understand how a person who was not knowing English language
had perceived that it was incriminating message and had
assiduously shown it to the informant. Therefore, at the threshold,
the story as has been projected by the prosecution about the
demand of ransom is fishy.
62. It is pertinent to note that the evidence is totally silent
on the point of text of so called ransom message. Had it been the
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fact that there was ransom message, then at least the informant
would have stated the same in his oral evidence, it being a vital
issue. Moreover, there is no evidence of any of the police officer
even to the extent that they had read the message of ransom or
about its script. Looking the matter from another angle, the things
are more worse. It is the prosecution case that the alleged ransom
message was received from the mobile of accused no.2. Police have
seized the mobile handset of Duos Blue Berry Company from
accused no.2, having sim No. 8421509583 of Uninor Company,
under panchnama Exh.53.The prosecution has examined P.W.14 –
Nodal Officer of Uninor Company. It has come in his evidence that
the sim no. 8421509583, was in the name of one Satyajit Male,
which was activated on 04.12.2013. Further it has come in his
evidence that the said mobile sim was reactivated on 19.11.2014,
in the name of one Kailash Dattatraya Bhandavale. The incident
took place on 27.02.2014. Thus, as per the record of the telecom
company, the said sim was in the name of one Satyajit Male at the
relevant time.
In such background, unless nexus of accused no.2 with
the said sim card or Satyajit Male is established, the evidence on
the point of demand of ransom cannot be accepted. In absence of
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link between the said sim number and accused no.2, it is difficult to
rely on the said piece of evidence.
63. To constitute the offence under Section 364A of The
Indian Penal Code, it is necessary to prove that not only such
kidnapping has taken place but, thereafter, accused threatened to
cause death, if the demand is not fulfilled. Though the first part of
kidnapping is proved, the later essential ingredient about demand
and threat is totally missing. In the circumstances, the conclusion
drawn by the trial court that the prosecution had miserably failed to
prove the demand of ransom, is irresistible and most probable,
therefore, we affirm the same.
64. The State as well as the Informant in their respective
appeals have challenged acquittal of accused no.1 from the charge
of murder. On the aforementioned parameters we have scrutinized
the evidence to find out whether there exists any evidence to clothe
accused no.1 with the charge of murder. We may recapitulate that
on 27.02.2014, around 6 to 6.30 p.m. the child was transposed in
the custody of accused no.2. Within half an hour, accused no.1
contacted the informant and then he was taken to police station
and was in police custody. Therefore, apparently he was not
physically present when the child was done to death. It has come in
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the evidence of P.W.10 Dr. Tapadia, that victim might have died
between the period of 12 to 24 hours prior to the conducting of
postmortem, which was conducted at 8.50 p.m. of 28.02.2014.
The learned Advocate for accused no.2 pointed that
rigor mortis had not fully developed, meaning thereby death
occurred within 12 hours prior to postmortem examination. For this
purpose he took us through the admission given by P.W.10 Dr.
Tapadia, that he had not stated in postmortem notes that rigor
mortis had fully developed. However, we may note that the doctor
has mentioned that rigor mortis was fully set in all the limbs. Rigor
mortis begins after 4 hours from the death. At this stage, we find it
relevant to advert to the decision of the Hon'ble Supreme Court in
case of Ram Udgar Singh .vrs. State of Bihar [(2004) 10 SCC
443] , wherein it is observed that the time which is usually 3 to 4
hours may vary according to climate condition. Rigor mortis thus
varies with climate and circumstance in which the dead body was
kept. Nothing has been brought about to disbelieve the medical
officer i.e. the expert's opinion that death occurred within 12 to 24
hours before postmortem.
65. Be that as it may, the death of child occurred in the
night intervening 27.02.2014 and 28.02.2014. The accused no.1
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was in the company of informant from 7 to 7.30 p.m. of 27.02.2014
and then was in police custody. Therefore, his physical presence at
the time of actual death of the child is next to impossible. Then the
question remains, whether he can be fastened with the liability
with the aid of principle of joint liability. In earlier part of the
judgment, we have held that the prosecution has proved the
conspiracy only to the extent of kidnapping. Accused no.1 had no
reason to call the informant, and disclose that the child was taken
away, if he was a conspirator to commit murder. The evidence
discloses that there was prior meeting of mind to kidnap, but, most
probably, due to differences, the accused no.1 might have
withdrawn from the plan, and therefore, the matter was made
known to the informant. In the circumstances, accused no.1 cannot
be held liable for homicidal death of the child, since he was neither
present at the time of death, nor there is evidence of hatching
conspiracy to that effect.
66. The learned Addl. Public Prosecutor submitted that,
when the fact of kidnapping is proved, then inference that deceased
remained in the custody of kidnapper till death can be drawn and
accused no.1 cannot be absolved from charge of murder. For this
purpose he relied on the reported judgment in case of Sunder @
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Sundararajan .vrs. State by Inspector of Police (AIR 2013 SC
777), wherein it is observed as under :
“ In case of kidnapping for ransom and murder once the
deceased has been proved to be kidnapped by accused the
onus shifts on the accused to establish how and when the
kidnapped person was released from his custody. In
absence of any material produced by the accusedappellant,
it has to be accepted, that the custody of deceased had
remained with the accusedappellant, till he was murdered.
The motive/reason for the accusedappellant, for taking the
extreme step was that ransom as demanded by him, had
not been paid. It cannot therefore, be said that thee is no
evidence on record on the basis whereof even the factum of
murder at the hands of the accusedappellant does not
stand established.”
In the case at hand, the said presumption would apply
with full force against accused no.2, but, due to distinct facts has no
application to accused no.1. The very circumstance that accused
no.1 was consistently in police custody right from one hour after last
seen, excludes his culpability in murder. The view expressed by the
trial court in this regard is quite probable and plausible one.
Therefore, we repel the submission of State and informant in this
regard and affirm the conclusions drawn by the trial Court regarding
acquittal of accused no.1 from the charge of murder.
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67. So far as the role of accused no.2 is concerned, it has
come on record that the child was handed over to him on
27.02.2014, around 6.30 p.m. There is “last seen together”
evidence on record on the point which is discussed in the earlier
part of the judgment. As per the medical evidence, the death
occurred during the night intervening 27.02.2014 and 28.02.2014,
when the child was in the custody of accused no.2. Therefore, there
cannot be two opinions on the point that the accused no.2 is the
author of the crime. The death of the child is by way of
strangulation, while in custody of accused no.2. Therefore, the
finding of the trial Court that the accused no.2 had caused death of
child is irresistible. Since, the defenseless child died due to
strangulation, we can hold without hiccup that it is a case of
homicidal death. The act of accused no.2 of strangulating the child
with string demonstrates the clear intention to cause such bodily
injury, with knowledge that it would cause death of the child. The
requisite intention to cause death and knowledge are very much
present and therefore, the act of accused would constitutes an
offence of murder. Therefore, we fully affirm the finding of trial
court that prosecution has duly proved that accused no.2 has
committed murder of innocent child.
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68. It is argued that there is inordinate delay in lodging of
First Information Report, and therefore, there are chances of false
implication. To support this contention, the defence relied on
reported case of Thulia Kali .vrs. State of Maharashtra [(1972) 3
SCC 393]. In the said case, the Hon'ble Supreme Court has
reiterated the well settled principles regarding importance of
prompt lodgment of First Information Report. It is observed that the
object of insisting upon prompt lodging of report eliminates the
charges of concoction. Delay in lodging FIR often results in
embellishment which is a creature of after thought.
69. What constitutes delay in lodgment of First Information
Report, is a matter of fact. In case at hand, the informant learnt
around 7 p.m. that his daughter was kidnapped. Initially some
misleading information was given by accused no.1 and therefore, he
was thoroughly interrogated, and then FIR (Exh.41), was lodged at
9.30 p.m. In the situation, time gap of 2 to 2 ½ hours can hardly be
termed as delay in lodging the First Information Report. Pertinent
to note that name of accused no.2 was disclosed in First Information
Report itself. One can understand the plight of a father whose
beloved daughter was kidnapped. The misery was added by
irrational responses given by accused no.1, therefore, in our opinion
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the time gap of 2 to 2 ½ hours cannot be termed as inordinate
delay in lodging FIR.
70. The trial Court has convicted both the accused for
commission of offence of causing disappearance of evidence, which
is punishable under Section 201 of the Indian Penal Code. So far as
the accused no.2 is concerned, the finding of guilt in that regard is
well justified. It has come on record that accused no.2 had not only
buried the dead body, but, had concealed the clothes of the child
beneath garbage, therefore, it shows that the accused no.2 had
caused the evidence to disappear, to screen the offence. However,
as regards accused no.1 is concerned, we find that without any
material, the trial Court has convicted accused no.1 for said offence.
The evidence discloses that accused no.1 had only shown the place
where he had handed over the child to the accused no.2. While
inspecting the place, the police found two bicycles and a sandal of
child lying on the spot. It is not the case that accused no.1 had
concealed these things so as to screen the offence. Therefore, in our
opinion the trial Court erred in convicting the accused no.1 for the
offence punishable under Section 201 of the Indian Penal Code,
which is required to be reversed.
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71. In every criminal case, court should search for motive.
Always motive is hidden in the mind of the culprit. Therefore, it is
very difficult to prove. In the earlier part of judgment we have held
that the prosecution has failed to prove the demand for ransom.
Though there is no evidence on the point of demand of ransom,
but, there could be hardly any other reason for the accused. The
intention might be to raise demand but, out of fear, the plan was
abandoned in half way. The mindset of culprit cannot be
unrevealed. Therefore, definite motive has not come on record. We
may add that proof of motive is not sinequanon to prove the guit,
if other evidence is of conclusive nature.
72. 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, the following :
1) Homicidal death.
2) Acquaintance of accused with each other;
3) Entrustment of Child with accused no.1.
4) Both the accused were last seen together with the child.
5) Child died while in exclusive custody of accused no.2.
6) Time gap between last sighting of the deceased in the
company of the accused and the death of child, is very
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short.
7) Dead body was recovered at the instance of accused
no.2.
8) Recovery of incriminating material at the instance of the
accused no.1.
9) Recovery of incriminating material at the instance of the
accused no.2.
10)Seizure of blood stained clothes of accused no.2.
11)Finding of blood of “B” group of deceased on the
clothes of accused no.2.
12)False and misleading explanation by accused no.1.
73. We have tested the prosecution evidence in the
background of legal principles and found that the prosecution has
unerringly established the chain of circumstance to prove that
accused no.2 has caused death of innocent child. Likewise, we hold
that both the accused hatched conspiracy to kidnap the child. So
also accused no.2 has concealed the evidence to screen the offence.
Though there was charge of Section 66A of The Information and
Technology Act, 2000 there is no iota of evidence to support said
charge. Therefore, we affirm the findings of trial Court in all respect,
except finding of guilt of accused no.1 relating to charge under
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Section 201 of the Indian Penal Code.
74. Now, the last aspect remains about the imposition of
appropriate sentence. The informant in his appeal prayed for
awarding capital punishment. It is argued that the accused killed
innocent defenseless child, which is an example of brutality.
Therefore, he deserves capital punishment.
75. Imposition of appropriate sentence is a delicate task in
criminal cases. It is the responsibility of the Court to appropriately
punish the accused in proportion to the atrocities committed by
him. No doubt the accused no.2 has killed an innocent child aged 2
½ years, however, whether such an act of accused constitutes
“rarest of rare case” to warrant capital punishment, is a matter for
consideration.
76. Recently this Court, in reported case of State of
Maharashtra .vrs. Rajesh Dhannalal Daware [2016 (2) Crimes
(HC) 592], has elaborately dealt with the aspect of imposing death
penalty in paragraph no.95 of its judgment. The same reads as
under :
“ The law as to in what circumstances death penalty would
be warranted or not, has been succinctly laid down by the
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Constitution Benches of the Hon'ble Supreme 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, the
Hon'ble Supreme Court have again reiterated the legal
position. It will be appropriate to reproduce 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 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
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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.”
It could further be seen that the Hon'ble Supreme Court
in its various decisions has culled out various aggravating and
mitigating circumstances. The principles have been laid down by the
Hon'ble Supreme 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
be consciously exercised having regard to the nature and
circumstances of the crime and all relevant circumstances. It has
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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.
77. Keeping in view the above settled principles, the case in
hand is to be decided on its own facts to see whether it falls in the
category of rarest of rare case to attract capital punishment. We
have briefly recapitulated the entire episode. Besides death of a
child, there is nothing uncommon to turn it as a most heinous or
rare case. One must remember that the accused was just 19 years
of age at the time of commission of crime who has no anticidents.
There was no previous enmity between accused no.2 and informant.
There are no circumstances to indicate that life imprisonment can be
construed as inadequate punishment. We do not find any reason to
believe that the accused cannot be reformed. There is no material
to hold that it is a crime of extreme brutality and would shatter
social fabric.
78. Considering all these circumstances, we are of the view
that the case in hand does not fall in the exceptional category of
rarest of rare case. The alternative punishment imposed by the trial
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court is of life imprisonment, which is well justified. As regards the
rest of the sentence is concerned, they appear to be in proportion to
the act committed by the respective accused, and does not call for
interference.
In view of the above discussion, we hold that the
appeals filed by accused no.2, State and informant are devoid of
any merit. The appeal of accused no.1 deserves to be partially
allowed only to the extent of setting aside his conviction and
sentence punishable under Section 201 of the Indian Penal Code.
Hence, we pass the following order.
ORDER
(1) Criminal Appeal No. 171/2017 filed by Accused
no.2 Akshay Kailash Purohit, stands dismissed.
(2) Criminal Appeal No. 409/2017 filed by State of
Maharashtra and Criminal Appeal No.410/2017
filed by informantSagar Bagani, also stand
dismissed.
(3) Criminal Appeal No. 220/2016 filed by accused
No.1Akshay Datta Pachange, is partly allowed to
the extent of quashing of sentence under Section
201 of the Indian Penal Code. Rest of the sentences
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passed by the Trial Court, are maintained as it is,
and to operate accordingly.
(4) The bail bonds of accused No. 1 shall stand
canceled. He shall surrender forthwith before the
trial Court to serve the remaining part of the
sentence.
(5) Muddemal property be dealt with after the appeal
period.
(6) The fees of the learned Advocate appointed to
represent the appellant – Akshay Kailash Purohit be
quantified as per Rules.
JUDGE JUDGE
Rgd.
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