: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CONFIRMATION CASE NO.2 OF 2001 CONFIRMATION CASE NO.2 OF 2001 CONFIRMATION CASE NO.2 OF 2001 The State of Maharashtra )..Original ) Complainant Versus ) ) 1. Renukabai @ Rinku @ Ratan ) W/o Kiran Shinde ) ) 2. Seema @ Devki @ Devli Mohan ) Gavit )..Respondents )(Org.Accused ) Nos.1 & 2) W I T H W I T H W I T H CRIMINAL APPEAL NO.718 OF 2001 CRIMINAL APPEAL NO.718 OF 2001 CRIMINAL APPEAL NO.718 OF 2001 1. Renukabai @ Rinku @ Ratan ) W/o Kiran Shinde ) ) 2. Seema @ Devki @ Devli Mohan ) Gavit )..Appellants )(Org.Accused Versus ) Nos.1 & 2) ) The State of Maharashtra )..Respondents ---- Mrs.S.A.Pai, Additional Public Prosecutor for the State of Maharashtra. Mr.H.S.Venegaonkar Advocate for Respondent Nos.1 and 2. ---- Coram : R.M.S.Khandeparkar & Coram : R.M.S.Khandeparkar & Coram : R.M.S.Khandeparkar & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : Judgment :- ( Per : Mohite, J) Judgment :- ( Per : Mohite, J) Judgment :- ( Per : Mohite, J) 1. Criminal Appeal No.718 of 2001 has been filed by Renukabai @ Rinku @ Ratan, wife of Kiran Shinde ( Here-in-after referred to as ‘Renuka’ ) and Seema @ : 2 : Devki @ Devli Mohan Gavit ( Here-in-after referred to as ‘Seema’). The Appeal seeks to quash and set aside a Judgment and order passed by the Additional Sessions Judge, Kolhapur on 28.06.2001 in Session Case Nos.55 and 56 of 1997. In the aforesaid two Session cases the present 2 accused were tried for having kidnapped 13 children, attempting to kidnap one more child and committing the murder of 9 of the 13 children kidnapped by them. Since the trial involved the kidnapping and murder of children over a long period of time, commencing in June-1990 and ending in October-1996, it would be convenient to deal with the facts as separate incidents. These incidents, the related convictions and the sentences imposed by the trial court can be categorised as under :- (A) The conspiracy entered into between the accused, accused Anjanabai (Here-in-after referred to as ‘Anjanabai’) and approvar Kiran Shinde (Here-in-after referred to as ‘Kiran’) in June-1990 in the house of one Saste in Pune city. For this act of conspiracy the trial court has convicted the accused under Section 120-B of the Penal Code and has sentenced them to death by hanging, subject to confirmation by the High Court. (B) The kidnapping of a child named Santosh aged about 1 & 1/2 years in the first week of July-1990 : 3 : at Kolhapur by the accused and Anjanabai, his subsequent murder by Anjanabai on instigation by the accused at S.T.Stand Kolhapur and the disposal of the dead body by accused no.1 Anjanabai and Kiran at a spot near a rikshaw parked at about 15 minutes walking distance from the said S.T.Stand. For these incidents, the accused have been convicted and sentenced as under :- (i) Under Section 302 read with Section 120-B of the Indian Penal Code, the sentence being death by hanging subject to confirmation by the High court. (ii) Under Section 363 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 3 years with a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for one year on each count. (iii) Under Sections 364, 365, 344 and 466 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 2 years and to pay a fine of Rs.2000/- each, in default to suffer further rigorous imprisonment for one year each on each count. (iv) Under Section 201 read with Section 120-B of the Indian Penal Code, the sentence being to suffer rigorous imprisonment for 5 years and to pay fine of : 4 : Rs.5000/- each, in default to suffer rigorous imprisonment for 2 years. (C) The kidnapping of a child named Naresh aged about 9 months from Thane S.T.Stand in December-1991, causing of hurt to this child, the abandoning of this child on 28.2.1992 at Ramkunj Temple situated near Panchavati Ganga Ghat at Nasik and the filing of a false and forged application in the court by accused no.1 seeking the custody of this child. For these incidents, the accused are convicted and sentenced as under :- (i) For the offence punishable under Section 364 read with Section 120-B of the Penal Code to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for one year each. (ii) For offences punishable under Sections 468, 469, read with Section 120-B of the Penal Code, being sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for 1 year each on each count. (iii) For offences punishable under Section 323 read with Section 120-B of the Indian Penal Code, being : 5 : sentenced to suffer rigorous imprisonment for 6 months and to pay a fine of Rs.1000/- each, in default to suffer rigorous imprisonment for 3 months. (D) The kidnapping of a male child named Bunty aged about 1 year and a girl child Swati aged about 2 years in April-1993 by the accused and Anjanabai from Kalyan Railway station, the kidnapping of a male child named Guddu aged about 2 & 1/2 years and a girl child named Meena aged about 3 years by the accused and Anjanabai in May-1993 from the V.T.Station at Bombay, the release of Swati in the bazar at Loni Karbhor along Solapur road at Pune in or about July-1993, the murder of Bunty and Guddu by the accused in a car near Khandala ghat, the throwing of the dead body of Bunty in the Khandala ghat valley by Anjanabai, the throwing of the dead body of Guddu on the side of the road at Shil-phata by Anjanabai, the rescue of Meena from Matwad chawl situated at Kothrud Pune by the Police. For these incidents, the accused are convicted as under :- (i) Under Sections 363, 364 read with Section 120-B of the Penal Code for the kidnapping of Bunty, the sentence being rigorous imprisonment for 3 years and a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for 1 year each, on each count. ( It may be mentioned here that though both : 6 : the accused were charged for the offence punishable under Section 302 & 201 read with Section 120-B of Indian Penal Code for the killing and disposal of the body of Bunty, they were acquitted of the said charge by partially dis-believing the accomplice Kiran Shinde (PW 1). It may further be mentioned that though the trial court in its reasoning found the accused guilty of the kidnapping of Swati in the operative order, the trial court appears to have missed convicting and sentencing the accused for this offence. (ii) For offences punishable under Sections 363, 364, 342, 323, 344 read with Section 120-B of the Indian Penal Code for the kidnapping of Guddu and Mina, the sentence being rigorous imprisonment for 1 year and a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for 6 months each on each count. ( The accused were acquitted for the charges under Section 302 read with Sections 120-B and 201 read with 120-B framed in connection with the murder of the child Guddu). (E) The kidnapping of Anjali @ Pinky, a girl child aged about 2 years by the accused and Anjanabai from Kalika Mandir, Nasik on 18.10.1994, killing of the said child by accused and Anjanabai in November-1994 at the house of one Khopde situated at Gondhalinagar, Hadapsar Pune and the disposal of the : 7 : dead body of this child by Kiran, Anjanabai and accused no.1 near Saswad road at Pune. For this incident, the accused have been convicted and sentenced as under :- (i) Under Section 302 read with Section 120-B of the Indian Penal Code, the sentence being death by hanging subject to confirmation by the High court. (ii) Under Sections 363, 364 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 3 years with a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for 1 year each, on each count. (iii) For offences punishable under Sections 344, 346 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 2 years with a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for 1 year each, on each count. (iv) For offences punishable under Section 201 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 5 years with a fine of Rs.5000/- each, in default to suffer rigorous imprisonment for 2 years on each count. (F) The kidnapping of Swapnil @ Raja, a male child : 8 : aged about 7 months in the first week of March-1995 by the accused, Anjanabai and Kiran from S.T.stand Kolhapur, the killing of the said child in the 2nd week of March-1995 by accused no.2 in the house of Khopde, situated at Gondhalinagar, Hadapsar, Pune and the disposal of the dead body of this child by throwing the same in the area of Khandala ghat. For these incidents, the accused have been convicted and sentenced as under :- (i) Under Section 302 read with Section 120-B of the Indian Penal Code, the sentence being death by hanging subject to confirmation by the High Court. (ii) Under Sections 363, 365, and 342 read with Section 120-B of the Penal Code, the sentence being rigorous imprisonment for 2 years with a fine of Rs.2000/- each, on each count, in default to suffer rigorous imprisonment for 1 year each, on each count. (iii) For offences punishable under Section 201 read with Section 120-B of Indian Penal Code, the sentence being rigorous imprisonment for 5 years with a fine of Rs.5000/-, in default to suffer rigorous imprisonment for 2 years each, on each count. (G) The kidnapping of a girl child named Shradha @ : 9 : Rani @ Bhagyashri, aged about 1 year & 9 months by the accused and Anjanabai from Mahalaxmi Temple, Kolhapur, the killing of this child in the last week of May by Anjanabai on the suggestions given by the accused, in a taxi, on the road leading to Surat and the disposal of the dead body of Shradha by accused no.1. For these incidents accused have been convicted and sentenced as under :- (i) For the offence punishable under Section 302 read with Section 120-B of the Indian Penal Code, the punishment being death by hanging subject to confirmation by the High Court. (ii) For the offences punishable under Sections 363, 364 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 3 years with a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for 1 year each, on each count. (iii) For offence punishable under Section 201 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 5 years with a fine of Rs.5000/- each, in default to suffer rigorous imprisonment for 2 years each, on each count. (H) The kidnapping of the child Kranti aged about 9 : 10 : years by the accused from the house of her father on 29.8.1995 and the killing of Kranti by the accused in the sugar crane crop situated on a land near Narsoba-wadi, Dist-Kolhapur. For these incidents, the conviction and sentence of the accused are as under :- (i) For offences punishable under Sections 363, 364, 365 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 3 years with a fine of Rs.2000/- each, in default to suffer rigorous imprisonment for 1 year each, on each count. (ii) For offences punishable under Sections 342, 343, 344 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 1 year with a fine of Rs.5000/-, in default to suffer rigorous imprisonment for 6 months each, on each count. ( It may be mentioned here that by partially dis-believing the story of the approvar Kiran Shinde (PW 1) in respect to the murder and disposal of the dead body of Kranti, the trial court has acquitted the accused of the charges under Sections 302 read with Section 120-B of the Indian Penal Code as well as the charge under Section 201 read with Section 120-B of the Indian Penal Code. (I) The attempt to kidnap a child by the name of : 11 : Devli from Rani Laxmibai Primary school, Nasik on 10.10.1996 by the accused. For this incident, the accused have been convicted as under :- (i) Under Sections 363, 364, 365 read with 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 3 years with a fine of Rs.2000/-, in default to suffer rigorous imprisonment for 1 year each on each count. ( It is noted here that though the charge was for an attempt, the conviction appears to be wrongly made for the offence of kidnapping and its aggravated forms without the use of section 511 of the Indian Penal Code. (J) The kidnapping of a girl child named Gauri @ Bhavna aged about 1 & 1/2 years on 3.1.1996 by the accused and Kiran from the Ganga ghat vegetable market in Nasik, killing of this child by Anjanabai at the instigation of accused no.2 on 12.5.1996 at Pallavi Lodge, Kolhapur and the disposal of the dead body of this child on the same day in the womens lavoratory in Usha Theatre situated near the said lodge. For these incidents, the accused have been convicted and sentenced as under :- (i) For the offence punishable under Section 302 read with Section 120-B of the Indian Penal Code, the sentence being death by hanging subject to confirmation by the High court. : 12 : (ii) For the offences punishable under Sections 363, 364, 365 read with Section 120-B of the Indian Penal Code, the sentence being to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.2000/-, in default to suffer rigorous imprisonment for 1 year each, on each count. (iii) For the offences punishable under Sections 342, 344 read with Section 120-B of the Indian Penal Code, being sentenced to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.5000/- each, in default to suffer rigorous imprisonment for 6 months each on each count. (iv) For the offence punishable under Section 201 read with Section 120-B of the Indian Penal Code, being sentenced to suffer rigorous imprisonment for 5 years with a fine of Rs.5000/-, in default to suffer rigorous imprisonment for 2 years each. (K) The kidnapping of a male child named Pankaj aged about 4 years on 27.7.1996 from Vithal Mandir, Wadala, Mumbai by the accused, killing of this child in September-1996 in the house of Indirabai Mahimkar situated at Shivshahi Apartment, Kothrud, Pune and the disposal of this child in a gunny bag thrown in the area of Karve Nagar in Pune. For these incidents, the accused have been convicted and : 13 : sentenced as under :- (i) For the offences punishable under Section 363, 364 and 365 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 2 years with a fine of Rs.2000/-, in default to suffer further rigorous imprisonment for 1 year each, on each count. (ii) For the offences punishable under Sections 342, 344 & 346 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 1 year with a fine of Rs.5000/-, in default to suffer rigorous imprisonment for 6 months each, on each count. (iii) For the offence punishable under Section 201 read with Section 120-B of the Indian Penal Code, the sentence being rigorous imprisonment for 5 years with a fine of Rs.5000/-, in default to suffer further rigorous imprisonment for 2 years each, on each count. . (It may be stated that as regards each of the aforesaid incidents pertaining to kidnapping and murder, there was also a charge relating to the substantial offences read with Section 34 of the Indian Penal Code but the conviction has not been made with the aid of Section 34). : 14 : 2. The brief prosecution case sought to be brought on record through the evidence of approvar Kiran Shinde (PW 1) as also through 155 other witnesses examined by the prosecution and several documents, narrated in a chronological sequence was as under :- (a) that (PW 1) approver Kiran is a person who hailed from Pune. He was educated upto the 7th standard but left his school in the year 1982 when he was in the 7th standard. On leaving school he was learning the work of tailoring in the shop of one Suresh Tailor in Hadapsar area. While he was so working in the tailoring shop he came into contact with accused no.1 Renuka in 1983. Kiran fell in love with Renuka and consequently on 17.12.1989 he married Renuka at Shirdi in the temple of Saibaba. Subsequently, in the year 1990 Kiran and accused no.1 Renuka alongwith accused no.2 Seema, Ashish, the son of Renuka from her first marriage and Anjanabai came to reside as tenants in the house of one Saste at Gondhalinagar situated in Hadapsar area of Pune. Anjanabai, Renuka and Seema were thieves who used to commit theft of articles like mangalsutra, indulged in chain snatching and the entire family as aforesaid used to maintain itself out of income derived from such thefts. In such circumstances, the first of 3 children of Renuka & Kiran i.e. Kishor was born on 23.3.1991, the second : 15 : son Tushar was born on 6.2.1994 and the 3rd son Gaurav was born on 19.1.1995. HATCHING OF A CONSPIRACY :- . That in April-1990, while the aforesaid family was residing in the house of Saste, Kiran, accused no.1 Renuka and Ashish had gone to Chatursinghi for darshan. At that place Renuka who was with Ashish tried to snatch a purse from a person in the mob but was caught by the said person. Renuka started to raise a hue and cry and she gave abuses to the person who had caught her asking him as to why he was holding his hand when she was having a child with her. Many persons gathered at the spot and helped in getting Renuka released. The person who had caught Renuka, seeing the mob gathering, left the spot. In the month of June-1990, Kiran, Renuka and Seema had a meeting in the house of Saste in which Renuka narrated the incident that had occurred in Chatursinghi and as to how she had got herself released by taking advantage of having a child with her. By that time, Anjanabai has been arrested in about 15 to 16 cases of theft, Renuka had been arrested on about 5 to 6 occasions and even Seema had been arrested on 2 to 3 occasions. Renuka raised an issue as to what was required to be done to evade such arrests. It was concluded by them at that meeting that if small children could be taken : 16 : with them at the time of incident of theft, they could, if caught, get the sympathy of persons and there was a reduced possibility of being involved in the offence. They decided to kidnap small children below 5 years of age as such children would not be able to follow what was going on and would not be in a position to speak out. They arrived at this device to reduce the possibility of arrest. They decided to kidnap such children from public places such as railway stations, temples, fairs, public gardens etc. as such places usually had a big crowd. They further decided that if the children caused any trouble in the course of their work or if there was any possibility of their being involved by such kidnapped children then the children would be killed. It is the prosecution case that a criminal conspiracy to kidnap and kill was thus hatched by Kiran, Renuka and Seema in this meeting and in pursuance of this criminal conspiracy, from June-1990 to October-1996, the accused, Anjanabai and Kiran kidnapped 13 children from various public places like Thane, Kalyan, Mumbai, Nasik, Kolhapur etc., attempted to kidnap one child and killed 9 of the children whom they had succeeded in kidnapping. INCIDENTS RELATING TO SANTOSH :- (b) That after the hatching of the aforesaid conspiracy in July-1990, the accused and Anjanabai : 17 : had gone to Kolhapur. There, Renuka met a female begger with a child on the S.T.stand. She gave an assurance to that begger that she would get her a job and under this pretext brought her to Karad. There, Renuka took the child, gave a slip to the begger and alongwith Seema and Anjanabai returned to their house at Pune alongwith this child who was named by them as Santosh. Later in July-1990 Renuka & Seema had gone to Shirdi for the purposes of committing thefts. Kiran remained behind in the house of Saste at Pune. As Renuka and Seema did not return for 5 to 6 days, Anjanabai alongwith Ashish had gone to Shirdi in order to find out as to what had happened to them. About 6 to 7 days thereafter, Shirdi police alongwith Anjanabai, Renuka & Seema came to the house of Saste at Pune alongwith the 2 children Ashish & Santosh. Renuka, Seema and Anjanabai had been arrested by the Shirdi police for theft and they had come to take the search of their house at Pune. Upon taking search the police attached various stolen items like tape-recorder, T.V., Camera and some ornaments. Kiran gave some amount to the Shirdi police in order to evade his arrest. After some time, Renuka, Seema and Anjanabai alongwith 2 children were transferred by the Shirdi police to the Pune police and were kept at the lock-up of Faraskhana police station at Pune. In the month of February-1991 Renuka was released from jail. She came out of the jail alongwith child : 18 : Ashish. After about 4 to 5 days, Seema was also released from jail. In the first week of March-1991 Anjanabai was released from jail and Santosh came out of the jail alongwith her. On 23.3.1991 Renuka delivered her first child Kishor. On 14.4.1991 Kiran, Ashish, Kishor, Santosh, Renuka, Seema & Anjanabai left for Kolhapur in order to commit petty thefts. They halted at Mahalaxmi Dharmashala at Kolhapur where they reached at about 8.00 P.M. The room in the Dharmashala was taken in the name of Seema. After keeping their articles in the room, they proceeded towards Mahalaxmi temple where a crowd was likely to gather in the evening. Kishor was with Kiran and Ashish was with Renuka, Anjanabai was carrying Santosh. Seema attempted to snatch a purse from one person but was caught and beaten. Anjanabai then intervened and threw Santosh on the ground. Santosh fell down and sufferred a bleeding injury on his head. Many persons gathered on the spot and due to the pleas and apologies of Anjanabai and on seeing the bleeding wound caused to the child Santosh, the matter was not carried further to the police. Renuka then suggested that they should go to Kolhapur S.T.stand for committing further thefts. They accordingly, came to Kolhapur S.T.stand at about 11.00 P.M. Renuka & Seema alongwith Kishor & Santosh had gone to commit theft while Kiran & Anjanabai were sitting in one corner of the S.T.stand alongwith Ashish. After about 1 & 1/2 : 19 : hours, Renuka & Seema alongwith the children returned back alongwith 2 to 3 purses. They