1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. Criminal Appeal No. 759/2003 Vijay s/o Tulshiram Maskare, Aged about 26 years, Occupation: Labour, R/o: Akot, District: Akola. ....Appellant. .versus. The State of Maharashtra, Through P.S.O., Police Station, Akot, District: Akola. .... Respondent. Mr. V.M.Deshpande, Advocate for the appellant. Mr. T.A.Mirza, learned A.P.P. for the respondent. ------------------------------------------------------------------------ Criminal Appeal No. 82/2004 Suresh s/o Laltaprasad Shukla, Aged about 27 years, Occu. Labourer, R/o: Akot, Taluka Akot, District: Akola. .....Appellant. .versus. The State of Maharashtra, Through P.S.O. Police Station, Akot, District : Akola. .....Respondent. Mr. A.V.Bhide, Advocate for the appellant. Mr. T.A.Mirza, learned A.P.P. for the respondent. ------------------------------------------------------------------------ 2 Criminal Appeal No. 429/2004 Prashant s/o Arjun Mande, Aged 30 years, Occu. Labourer, Resident of Akot, District: Akola. ...Appellant .versus. The State of Maharashtra, Through P.S.O. Akot, District: Akola. ...Respondent. ------------------------------------------------------------------------ Mr. R.M. Daga, Advocate for the appellant. Mr. T.A.Mirza, learned A.P.P. for the respondent. ------------------------------------------------------------------------ CORAM : A.P. LAVANDE & P.D.KODE, JJ DATE OF RESERVING : 13.01.2010 DATE OF PRONOUNCEMENT : 28.01.2010 JUDGMENT (PER A.P.LAVANDE, J) All these appeals are being disposed of by common Judgment since they arise out of the Judgment and order dated 20.10.2003 passed by the Sessions Judge, Akola in Sessions Trial No. 28/2003. The appellant in Criminal Appeal No. 759/2003 was the accused no.2, appellant in Criminal Appeal No. 82/2004 was the accused no.3 and appellant in Criminal Appeal No. 429/2004 was the accused no.1 in 3 Sessions Trial No. 28/2003. The appellants shall be hereinafter referred to as per their status before the trial Court. 2. By the impugned Judgment and order the accused 1 to 3 have been convicted for the offence punishable under Section 120 (B) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- each and in default of payment of fine to undergo rigorous imprisonment for the period of six months. All the three accused have been also convicted for the offence punishable under Section 364- A read with Section 34 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs. 500/- each and in default of payment of fine to undergo further rigorous imprisonment for the period of six months. They have been also convicted for the offences punishable under Sections 386 and 411 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for the period of five years and to pay a fine of Rs. 3000/- each and in default of payment of fine to undergo rigorous imprisonment for the period of three months. 4 Accused 1 and 2 have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and to suffer life imprisonment and to pay a fine of Rs. 500/- each and in default of payment of fine to under rigorous imprisonment for six months. All the accused also have been convicted for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for the period of two years and to pay a fine of Rs. 3000/- each and in default of payment of fine to undergo rigorous imprisonment for two months. All the sentences are ordered to run concurrently. Approver Pappu Rambhau Berad who was the original accused no. 4 has been discharged. 3. Prosecution case, in brief, is as follows; Bhaiyyalal Gaur is a fish merchant at Akot. Prashant Mande ( A -1) and Suresh Shukla ( A – 3) were working with him. Prashant worked with him for more than two years before the incident and Suresh Shukla worked with him for few days prior to the incident. Bhaiyyalal had hired a jeep 5 owned by Vijay Maskare (A-2) for his business purpose. He, therefore, used to visit the shop of Bhaiyyalal. Due to frequent visits to the shop of Bhaiyyalal, Vijay had developed friendship with Prashant and Suresh. Pappu Berad (approver) was classmate of Vijay Maskare. 4. On 26.10.2002 Vijay went to the house of Pappu and asked him to come with him for roaming in the town for a while. While both of them were roaming in the town on the street Vijay informed Pappu that he and his friends had prepared a plan. Pappu was taken to the premises of Urban Bank. While they were sitting for a while in the premises of the Bank Prashant asked Vijay as to what progress was made by him in respect of the plan. Thereafter, the plan of kidnapping Naresh son of Bhaiyyalal Gaur for ransom was disclosed. It was stated by Prashant that for the purpose of kidnapping of Naresh they would use jeep of Vijay and would contact Bhayyalal on phone for ransom. Pappu was asked to make telephone call to Bhayyalal for demanding ransom. Pappu asked as to why he was asked to make a telephone call to 6 Bhaiyyalal to which he was told that Bhaiyyalal was familiar with the voice of the other accused and as such Bhaiyyalal would recognize their voice and police might catch them. Pappu expressed suspicion that there was possibility of tracing of the call by Police if the same was made from the public telephone booth. It was, therefore, decided that call should be made from the telephone pole as per the suggestion of Suresh. Pappu stated that for making such a call from telephone pole telephone instrument would be necessary. Vijay undertook the responsibility of arranging funds for purchasing telephone instrument and for filling diesel in jeep. Thereafter, all the accused dispersed from the spot. 5. On the next day in the evening Pappu met Vijay in the premises of Urban Bank. Vijay informed him that he had pledged a gold ring for Rs. 1500/- and had made arrangement of funds for purchase of telephone instrument and for filling diesel in the jeep. On 28.10.2002 Vijay had been to the place of Pappu. Both of them went in the market for purchasing telephone instrument. In the afternoon they went to Jeswani 7 Stores and purchased the telephone instrument. After purchasing the instrument Pappu was informed by Vijay that he should come to the premises of Shivaji High School in the eventing around 9.00 p.m. as they were going to execute the plan on that day. Accordingly, at about 9.00 p.m. Pappu went to the premises of Shivaji High School where Vijay had already arrived in a jeep bearing registration no. MZQ 371 along with Prashant and Suresh. Pappu asked them as to what was the next step. Prashant told him that Naresh was to reach at that spot within a moment. Within few minutes, all of them noticed Suresh proceeding on bicycle towards his house. Prashant called him and asked him as to where he was going to which Naresh replied that he was proceedings to his house. Prashant invited him for taking ride in the jeep. When Naresh refused Prashant assured him that he would be dropped to his house within 15 minutes. He was informed that Pappu would take care of his bicycle. Naresh was convinced and he handed over his bicycle to Pappu and asked him to convey the message at his house that he would be reaching his house within 15 minutes. Pappu took the bicycle near a shop called 8 Pavan Video and thereafter he proceeded towards the jeep. Vijay took his jeep to Sonu Chowk and thereafter brought it to Shivaji Chowk and then proceeded towards Hiwarkhed road. After covering some distance from Shivaji Chowk jeep was stopped for facilitating Pappu to board the jeep. When Pappu boarded the jeep he noticed that the mouth of Naresh was gagged with piece of cloth. The accused along with the approver went to the premises of spinning mill. Prashant asked Suresh to proceed to make telephone call to Bhaiyyalal. Pappu told Prashant that there was danger in making telephone call at that time as there was a risk of someone noticing them while making a call from telephone pole. The decision was taken by all of them to wait for about one hour. All of them waited for about one hour in the vicinity of Ganesh Temple which was situated in the premises of Spinning Mill. They halted the jeep on Hiwarkhed road. After about one hour Naresh was left in the custody of Prashant and Suresh. Vijay and Pappu went to Sarswati Nagar. After halting the jeep near the telephone pole Suresh climbed on the jeep and he connected the wire of telephone instrument to the main line. 9 Pappu called at the place of Bhaiyyalal Gaur. He told him that his son Naresh was in their custody and that Bhaiyyalal should come to the premises of spinning mill with an amount of Rs. 7 lacs. He was also threatened that in the event report was lodged to the Police Naresh would be killed. After making the telephone call the accused went to the premises of spinning mill. When they reached there Prashant told them that since Naresh was knowing all of them it was necessary to kill him and there was risk of keeping him alive as he was likely to disclose their names to the Police. Pappu agreed for the same on account of fear of Prashant. Thereafter, Vijay and Prashant took Naresh with them in the jeep. They asked Pappu and Suresh to wait at that spot for receiving ransom from Bhaiyyalal. Prashant and Vijay also informed them that they would wait for them near Radhaswami Santsang Tents on Hiwarkhed Road. 6. After some time Pappu Berad and Suresh Shukla noticed a mob of around 40 to 50 people proceeding towards the spinning mill. Both of them got frightened and ran towards Radhaswami Satsang Tents. They noticed Prashant and Vijay. 10 Prashant asked Pappu and Suresh as to whether they have received ransom from Bhaiyyalal to which Pappu replied that they had noticed a mob proceeding towards the spinning mill and as such they were frightened and, therefore, they had fled from the premises of spinning mill without receiving ransom. Prashant abused Pappu and Suresh in filthy language. Thereafter, Pappu asked Prashant and Vijay as to where they had been and where Naresh Gaur was. Prashant informed that Naresh Gaur was killed and they had buried his dead body in the stream let. All the accused thereafter proceeded in the jeep towards stream let and Vijay pointed out the spot where Naresh was killed and buried. Thereafter, accused went in a jeep towards Chittalwaid phata (bye-pass road). When the jeep reached near the bye-pass road Vijay stopped the vehicle. Prashant handed over the blood stained clothes and blood stained chappal of deceased Naresh to Suresh and he was asked to burn them. Accordingly, the articles were burnt by Suresh and Pappu at a distance of about 10 to 15 ft. away from the road on the southern side of the bridge. Thereafter, the accused and the approver Pappu proceeded in the jeep. 11 Prashant informed the other accused that he was asked to proceed to Pune by Bhaiyyalal in the after noon on 28.10.2002. He asked Vijay Maskare to drop him at Akola Bus Stand. When they were proceeding towards Akola they halted the jeep at Deori phata for filling diesel. Prashant purchased three liters of diesel and three liters of kerosene from one hotel at Deori phata. He told the persons in the hotel that he was carrying a patient in the jeep. While the accused were on their way to Akola Prashant handed over blood stained knife to Pappu and he was asked to dispose it of. His blood stained shirt was handed over to Suresh and he was asked to dispose it of. After leaving Prashant at Akola S.T. Stand for boarding a bus which was proceeding to Aurangabad at 7.00 a.m.. Vijay, Suresh and Pappu returned to Akot . On their way back to Akot Pappu threw blood stained knife in the bush on the bank of river Khai on Akot- Daryapur road. After reaching his house Pappu kept telephone instrument in the cupboard . 7. Since Naresh had not returned home at night of 28th October, 2002 Bhaiyyalal and his family members started his 12 search at the places of their friends, relatives and servants. The brothers of Naresh went to one Indore to find out where Naresh had gone. Ramesh also took search of Naresh. Ramesh went to Deori by road where he was informed by the people of the hotel that Prashant had arrived in the hotel late in the night. 8. At about 11.30 p.m. when Bhaiyyalal received the telephone call he got frightened. The news of kidnapping of Naresh spread in the area. The close friends and relatives of Bhaiyyalal rushed to his house. One Sanjay Deshmukh who was residing in the neighbourhood of Bhaiyyalal went to the house of one Durgesh Gaur and informed him about the incident. Durgesh went to the house of Bhaiyyalal and he noticed that Bhaiyyalal was in frightened state of mind. Durgesh told Bhaiyyalal that he would go to the police to lodge a report. Accordingly, Durgesh went to Akot Police Station and lodged report. In spite of receipt of report the Police did not register the crime since Durgesh did not personally receive telephone call. However, police went towards the premises of 13 spinning mill for taking search of kidnappers of Naresh. However, they could not trace anybody in or around the premises of spinning mill. 9. On the next day in order to ascertain whether Naresh had gone to Pune along with Prashant Bhaiyyalal contacted Nagesh Pardeshi a merchant from Pune to whom Prashant was supposed to meet. On inquiry Bhaiyyalal was told that Prashant had not reached Pune. After receiving this information Bhaiyyalal suspected involvement of Prashant in the kidnapping of Naresh. He, therefore, went to Akola Police Station and lodged report on the basis of which Crime No. 219/2002 was registered. 10. During the course of investigation Suresh Shukla (A-3) was arrested on 30.10.2002 and Pappu Berad (approver), Prashant Mande (A-1) and Vijay Maskare were arrested on 31.10.2002. 11. In the course of investigation telephone instrument 14 was recovered at the instance of Pappu from his house on 1.11.2002 and on 7.11.2002 knife was recovered at his instance. On 2.11.2002 blood stained clothes of Pappu were seized. Police also seized gold ring pledged by accused Vijay from the goldsmith Raju Bhore. On 31.12.2002 Prashant pointed out the place where the dead body of Naresh was buried by him and accused Vijay. The blood stained pant of Prashant was seized by the police from his house on 1.11.2002. On 1.11.2002 Vijay expressed his desire to point out the place where the blood stained clothes and Chappal of Naresh were burnt by them. Police recovered the pieces of burnt clothes and chappal of Naresh. The vehicle used in the commission of the crime were also seized on 1.11.2002. On 7.11.2002 the blood stained clothes of Suresh were sized by the police from his house. 12. Dr. Kolte conducted post mortem on the dead body of Naresh on 31.12.2002 on the spot since body was in decomposed state. The body was identified by his uncle and name of the deceased was found tattooed on his forearm. 15 13. The telephone instrument seized from the custody of Pappu was sent to the office of Sub Divisional Engineer for opinion. Accordingly, the officer opined that instrument was in a working condition and it was possible to connect it to the wires on the pole for making a telephone call. 14. After completion of investigation, charge sheet was filed by the Police in the Court of Judicial Magistrate, First Class, Akot who committed the case to the Court of Sessions since the offence punishable under Section 302 read with Section 34 of the Indian Penal Code was exclusively triable by the Court of Sessions. 15. Initially the charge against the four accused including the approver was framed for commission of offences punishable under Sections 364 read with Section 34, 384 read with Section 34, 302 read with Section 34 and 201 read with Section 34 of the Indian Penal Code. On 20.8.2003 when the matter was fixed for recording the evidence Pappu Berad (original accused no. 4) expressed his desire to disclose all 16 facts within his knowledge before the court. The application was supported by the prosecution. Pappu was referred to the Chief Judicial Magistrate for recording his statement. The Chief Judicial Magistrate recorded the statement of Pappu. The learned Additional Sessions Judge after going through the statement of Pappu and after hearing all the accused allowed the application and granted pardon to Pappu in terms of Section 307 of the Code of Criminal Procedure. Thereafter, charge was framed against the three accused under Sections 120 (B), 364-A read with Section 34, 386, 511 read with Section 34, 302 read with Section 34 and 201 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. 16. The prosecution in order to bring home the guilt to the accused examined seventeen witnesses including the approver Harshad @ Pappu Berad and produced several documents. The defence of the accused was of total denial. After the statements of all the three accused were recorded under Section 313 of the Code of Criminal Procedure the 17 accused examined Shrikrishna Gowardhan Tali, P.S.O. Police Station, Akot and Balchandra Sapkal, A.S.I., Akot as defence witnesses. 17. Upon appreciation of the evidence led by the prosecution and the accused and after hearing the prosecution and the accused learned Additional Sessions Judge convicted all the three accused for the offences as mentioned hereinabove and awarded them different period of imprisonment as mentioned hereinabove. 18. Aggrieved by the conviction and sentences imposed on them all the three accused filed the above appeals. 19. We have heard Mr. V.M. Deshpande, learned counsel appearing for the appellant ( original accused no.2) in Criminal Appeal No. 759/2003, Mr. R.M. Daga, learned counsel for the appellant (Original accused no. 1) in Criminal Appeal No. 429/2004 and Mr. A.V.Bhide appearing for appellant (original accused no. 3) in Criminal Appeal No. 18 82/2004 adopted the synopsis/ submissions filed by him earlier. We have also heard Mr. T.A. Mirza, learned A.P.P. for the respondents in all the three appeals and with the assistance of the learned counsel for the accused and learned A.P.P. perused the record minutely. 20. Mr. Deshpande, learned counsel appearing for the appellant (accused no. 2) in Criminal Appeal No. 759/2003 submitted that the evidence tendered by the prosecution is not sufficient to bring home the guilt to the accused no. 2 and, therefore, the conviction recorded and the sentences imposed on the appellant for different offences are unsustainable in law. He further submitted that the evidence of the approver Pappu Berad does not inspire confidence. The learned counsel further submitted that the evidence of the approver is not also corroborated on the material aspects by independent evidence. According to the learned counsel the tests laid down by the Apex Court in respect of the approver in the case of Sarwan Singh Rattan Singh vs. State of Punjab (AIR 1957 Supreme Court, 637) have not been satisfied. The learned 19 counsel further submitted that the approver was pressurized by the investigating officer Susatkar to turn approver and support the false case set up by the prosecution against all the accused. The learned counsel took us to the evidence of the approver and submitted that the deposition of the approver is inherently improbable and the corroboration through different prosecution witnesses has been fabricated by the prosecution. The learned counsel further submitted that the evidence of the approver is unnatural and in the absence of any intimacy between the approver and the appellant, it is difficult to accept the prosecution case that the approver along with the other accused hatched conspiracy to kidnap Naresh. He further submitted that there is absolutely no evidence on record as to what amount was to be demanded from Bhaiyyalal and in what manner the ransom would be shared between the accused and the approver. It further submitted that there is absolutely no evidence on record as to how the approver came to know the telephone no. (23742) of Bhaiyyalal and as such the version of approver that he gave a call with the use of telephone instrument by connecting it to 20 the pole is inherently improbable. He further submitted that there is absolutely no evidence on record that the accused tied the hands of Naresh after he was kidnapped and as such the version of the approver becomes improbable. He further submitted that the identification of telephone instrument by Santosh from whom the appellant is alleged to have purchased the telephone instrument is doubtful. The learned counsel further submitted that it is difficult to believe that the appellant pledged gold ring with Raju Bhore (P.W.2) although on the previous day he had refused to pledge the gold ring. He, therefore, submitted that the said witness has been planted by the prosecution to support the false case set up by the prosecution against the accused. He further submitted that the evidence of Suresh Shahakar (P.W.10) who claimed to have seen deceased Naresh with the accused at about 9.00 p.m. on the date of the incident is inherently improbable and his conduct in not disclosing the incident for more than three days clearly casts suspicion on his testimony. Similarly the evidence of P.W. 3 Ramesh Indore that the accused no. 1 had come to Deori phata at 3.30 a.m. on 29.10.2002 also is 21 inherently improbable. The learned counsel further submitted that the alleged discovery of the dead body of Naresh at the instance of accused no.1 is inherently improbable. The learned counsel further submitted that in view of the version of the investigation officer Susatkar that the dead body was buried about 3½ ft. below the ground the prosecution version is inherently improbable since it is difficult to believe that the accused would dig a pit without any instruments for digging. The learned counsel further submitted that the prosecution has not produced any instruments which must have been used by the accused for digging the pit. He, therefore, submitted that the story of the prosecution that the dead body of Naresh was buried about 3½ ft. below the ground is inherently improbable. The learned counsel further submitted that the approver was granted pardon on 22.8.2003 when the matter was fixed for evidence and since the pardon was granted at a very late stage the same creates serious doubt about the prosecution case. He further submitted that according to the prosecution the clothes of the approver were stained with blood which is inherently improbable since it is the case of the 22 prosecution itself that the appellant did not accompany the accused 1 and 3 when they allegedly killed deceased Naresh. He, therefore, submitted that this circumstance creates serious doubt about the credibility of the approver's version. He further submitted that there is nothing on record to state that on account of the repentance the approver decided to disclose the details of the crime and, therefore, the evidence of the approver does not inspire confidence. He further submitted that the prosecution evidence itself suggests that there were telephone booths in the spinning mill and as such the story of the prosecution that the telephone instrument was connected to the pole on Hiwarkhed road is doubtful. The learned counsel further submitted that it is difficult to accept the prosecution version that the approver by climbing on the top of the jeep which was made of rexzine made a telephone call to Bhaiyyalal. The learned counsel further submitted that the arrest panchanama (Exh. 111) of the approver