1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CONFIRMATION CASE NO.1 OF 2005 State of Maharashtra Complainant Vs. 1. Dnyaneshwar Suresh Borkar 2. Amit @ Bapu Nanasaheb Bhandwalkar Accused. WITH CRIMINAL APPEAL NO.618 OF 2005 Shri Dnyaneshwar Suresh Borkar Appellant (Org.Accused No.1) Vs. State of Maharashtra & anr. Respondents WITH CRIMINAL APPEAL NO.38 OF 2005 AND CRIMINAL APPLICATION NO.4389 OF 2005 (FOR SEPARATING TRIAL) Amit @ Bapu Nanasaheb Bhandwalkar Appellant/ Applicant (Org.Accused No.2) Vs. State of Maharashtra Respondent Mr Vijay Sawant, Spl.P.P. with Mrs. P.H. Kantharia, APP for State. Mr. Abhaykumar Apte, Advocate appointed and Mr.M.S.Mohite with Mr.D.M.Gupte for accused no.1. Ms.Pranali Kakade for accused no.2. 2 CORAM: B.H.MARLAPALLE & SMT.R.S.DALVI,JJ. Reserved for Judgment on: 7th April 2006. Judgment pronounced on : 5th May, 2006. JUDGMENT (Per B.H.Marlapalle,J.): 1. The Confirmation Case under Section 366 and the Appeals under Section 374 of Cr.P.C. arise from the order of conviction and sentence dated 18th December 2004 passed by the learned Addl. Sessions Judge at Pune in Sessions Case No.236 of 2001. Though there were three accused initially, the trial against accused no.3, who was a juvenile accused, was separated and, therefore, accused nos.1 and 2 came to be tried in the said Sessions Case for the offences punishable under Sections 120B, 364A simplicitor or Section 364A read with Section 34, Section 302 simplicitor or Section 302 read with Section 34, Section 201 simplicitor or Section 201 read with Section 34, Section 384 simplicitor or Section 384 read with Section 34 and Section 506 simplicitor or Section 506 read with Section 34 of IPC. The learned Addl. Sessions Judge was pleased to acquit both the accused for the offences punishable under Section 120B, Section 384 read with Section 34, Section 506 3 read with Section 34, Section 364A read with Section 34 or simplicitor under all these Sections. However, accused no.1-Dnyaneshwar Suresh Borkar was found to be guilty of the offence punishable under Section 302 and he has been sentenced to death (hanging till death), subject to confirmation under Section 366 of the Code by this Court. Accused no.1-Dnyaneshwar has also been found guilty for the offence punishable under Section 364 of IPC and has been sentenced to imprisonment for life and to pay a fine of Rs.5000/-, in default thereof to suffer RI for six months. Accused no.2-Amit @ Bapu Nanasaheb Bhandwalkar has been found to be guilty of the offence punishable under Section 302 read with Section 34 and has been sentenced to life imprisonment and to pay a fine of Rs.5000/-, in default to suffer RI for six months. Both the accused have been found guilty for the offence punishable under Section 201 read with Section 34 of IPC and each of them has been sentenced to suffer RI for five years and to pay a fine of Rs.5000/-, in default to suffer RI for six months. Subject to the provisions of Section 31 of the Cr.P.C., the substantive sentences of imprisonment (excluding the death sentence) have been directed to run consecutively in the order they are given. 4 2. Dr.Ashok Mainkar - Gynaecologist and his wife Dr.Ashwini Mainkar - Ophthalmologist, who were amongst about 30 to 40 medical practitioners at Saswad, Purandar taluka, were blessed with two children - daughter-Ruta aged 14 years and son-Rishikesh aged 13 years at the relevant time and today they are a childless couple. On 4th February 2001 Dr.Mainkar left his home at Saswad for Pune between 4-30 and 5 p.m. to pick up his wife who was attending a medical transcription class and when he returned at 10 p.m. his daughter Ruta was waiting in the porch and informed that Rishikesh who had left home to attend the computer class at 6 p.m. had not returned till then. Little did the doctor know at that time that his son Rishikesh was kidnapped and murdered for a ransom. His daughter Ruta, while a college student at Pune, could not bear the shock of her brother’s gruesome murder, and committed suicide in October 2003. . The doctor started making enquiries about his son’s whereabouts from his teacher at the computer class as well as friends and around 11 p.m. went to 5 the Saswad police station to inform the police but was sent back by the duty police constable with a belief that the minor son must have gone out with one of the friends and would return may be late in the night or early morning. On 5th February 2001 when the doctor could not get any clue about the whereabouts of his son, he went to the police station around 10 a.m. and filed a missing report (Exhibit 122) on the basis of which PSI Kshirsagar (PW 41) of Saswad Police Station issued an alert call (Exh.140) to all the neighbouring police stations. On 4th February 2001 Rishikesh had left his home at about 6 p.m. on a Hercules bicycle, wearing wrist watch of Escort make with an apparel of greyish black colour jeans trouser and yellowish chocolate colour strip T-shirt. On 5th February 2001 the doctor couple continued their search for Rishikesh at various places but in vain. Ruta had received a call on 4th February 2001 at about 8 p.m. from a boy named Jagtap who had informed her that Rishikesh was with him and would return on the next day. Around 8.40 p.m. on 5/2/2001 he received a telephone call from a person who did not disclose his name but told the doctor "Tumhara bachha hamare pas hai. Internet khel raha hai, hamne use kuch nahi kiya". When the doctor 6 told the caller to return his son, the caller told the doctor to keep an amount of Rs.5 lakhs ready by next day morning. The doctor was advised not to inform the police and threatened "Amchyashi gath aahe" (You have to face us). On 6th February 2001 the doctor approached the police station once again at about 6 a.m. and informed about the telephone call. This complaint was also reduced in writing (Exhibit 123), and subsequently treated as the FIR. In the mean while the police officer had contacted the telephone engineer and requested him to keep the doctor’s telephone no.22553 under surveillance (the number was common for the residence as well as the hospital). Two police constables were posted at the doctor’s house to monitor his telephone from 6th February 2001 onwards. At about 6.45 p.m. the doctor received a call from the same person who had called him on the earlier day and the caller disclosed his name as Salimbhai. The caller asked the doctor "Hamara kam kiya kya" and the doctor answered in the affirmative and requested the caller to hand over the phone to his son. The doctor was informed on phone that his son was playing on internet and he could talk to him after one hour. The doctor was again threatened not to contact the 7 police and the caller disconnected the phone. The phone was monitored by the police. On 7th February 2001 the same person called the doctor at about 7.15 a.m. and asked whether the money was ready. The doctor informed him that the money was ready on the earlier day itself but nobody came to collect. The caller disclosed that he was busy and would contact the doctor around 12 noon. He received the second call at 7 p.m. and in the mean while nobody came to collect the money. In this call also the caller disclosed his name as Salimbhai and angrily asked the doctor why he had informed the police about the demand of Rs.5 lakhs. He also enquired with the doctor whether the telephone was tapped and threatened him with the consequences including elimination of his son and the entire family. The doctor was informed that on 8th February 2001 some unknown person would meet him at 12 noon and collect the money of Rs.5 lakhs and thereafter Rishikesh will be released. Both these telephone calls received on 7th February 2001 were monitored. On 8th February 2001 the doctor received the first call at 12.30 noon and the caller disclosed his name as Salimbhai and informed the doctor that the person would come to collect the money at 1 p.m. The second call came 8 between 1-45 p.m. and 2 p.m., whereas the third call was received at 3.30 p.m. when the caller shouted at the doctor and told him that his man had visited the hospital and found the police around it. The fourth call was received at 4 p.m. from the same Salimbhai informing the doctor that he was calling from Hadapsar, Pune and the money was required to be kept near the junk jeep lying in front of a small temple on the Pune - Jejuri road after village Belsar and on which the slogan "Chalo Nashik" was written. The doctor agreed and the phone was disconnected. This call was also monitored. Salimbhai called the fifth time at 5 p.m. and uttered only one sentence, "my man will not come" and the phone was cut off. The caller was taken in custody between 5.30 to 6 p.m. on 8th February 2001 by Ashok Dagadu Kshirsagar (PW-41) PSI, Saswad police station at the relevant time by drawing arrest panchanama at Exhibit 46, from the road near Jejuri side octroi post at Saswad. His house search was made to find out whether Rishikesh was confined / locked in the house but the police did not find Rishikesh and they had to be satisfied by seizing the clothes of the arrested accused no.1, under seizure panchanama (Exhibit 47). On 9th February 2001 and as per the disclosure made by 9 accused no.1 while in police custody, the police team went to the agricultural farm of accused no.1 at village Kumbhar valan which is also known as "chaver" and the accused no.1 showed the place where the dead body of Rishikesh was buried. The dead body was exhumed from the pit at about 9 a.m. and was found to be in a deteriorated condition. Dr.Mainkar was called and he identified the dead body to be of his son Rishikesh. 3. The police continued with the interrogation with accused no.1 and accused no.2 was arrested on 18th February 2001 along with the third accused Nilesh who was a juvenile under arrest panchanama Exh. 54. During the course of investigations statements of a number of persons were recorded, articles were recovered including the two-wheeler of accused no.1 and bicycle of Rishikesh. . On completion of the investigation, charge-sheets were filed against two accused on 2nd May 2001 before the learned Judicial Magistrate, First Class at Saswad who in turn committed the accused persons for trial to the Sessions Court at Pune on 6th July 2001. The charge was framed 10 (Exhibit 5) on 14/12/2001 and the prosecution examined in all 41 witnesses. The accused did not examine any witnesses in their defence and their statements under Section 313 of Cr.P.C. (Exhibit 6 and Exhibit 7/2) were recorded on 3rd December 2004. As per the learned Sessions Judge the prosecution proved its case against the accused persons on the basis of the circumstantial evidence. As per the prosecution the chain of circumstances unerringly proved before the trial Court is as under: (a) preparation for digging a pit by collecting the digging / burying equipments like arrow (fawda), tikas for burying the dead body; (b) purchase of salt to be used for burying the dead body on two different dates and from two different shops; (c) deceased Rishikesh last seen by Dr.Mainkar between 4 to 5 p.m. on 4/2/2001 and Rishikesh leaving the house at 6 p.m. on that day to go to Aptech Computer Institute as was seen by his sister-Ruta; 11 (d) Rishikesh met in Aptech Computer Institute to Atul (PW 26) around 6 p.m. and enquired about Rohit Jagtap. Accused no.1 had sent Dattatray Tupe (PW 25) to call Rishikesh from Aptech Computer Institute at 6 p.m. on 4/2/2001 and Dattatraya had gone to the said Institute but did not find Rishikesh there. PW 25 met Rishikesh in the company of accused no.1 immediately thereafter and he saw accused no.1 taking Rishikesh on his M-80. At that time Rishikesh was sitting on the rear seat of M-80 and accused no.1 was driving the said vehicle; (e) all the three accused seen by Vimal Borkar (PW 22) while going on M-80 and accused no.1 at about 7 p.m. coming from village Vir side and going through village Ambodi. Accused no.1 was driving the vehicle. Rahul Borkar (PW 23) had seen all the accused on 4/2/2001 at about 7.30 p.m. going on the M-80 of accused no.1 while the witness was sitting at the katta near Yeshwantrao temple along with his friends. Accused no.1 was driving the vehicle and they proceeded towards Saswad. Chandrakant Yadav (PW 21) had served tea to all the accused in the tea stall run by his maternal uncle Shri Tanaji Nivrutti Kamthe at Saswad at about 7.45 p.m. on 4/2/2001; 12 (f) At 8 p.m. on 4/2/2001 Ruta had received a telephone call from a person called Jagtap informing her that Rishikesh was with him and he would return in the morning of the next day. Dr.Mainkar returned from Pune at about 10 p.m. on 4/2/2001 and was informed by Ruta that Rishikesh had not returned from the Computer class; (g) Dr.Mainkar receiving the first telephone call at 8-40 p.m. on 5/2/2001 demanding a ransom of Rs.5 lakhs to release Rishikesh and on his complaint with the police station in the early hours of 6/2/2001 the Police Inspector directing the telephone tapping of Dr.Mainkar with the help of Asst. Engineer (Telephones); (h) complaint at Exhibit 123 registered and police constables posted at the house of Dr.Mainkar to monitor the telephones; (i) on 6/2/2001 second telephone call at 6.45 p.m. received by Dr.Mainkar from a person called Salimbhai asking whether the amount was kept ready and threatening not to report to the police; 13 (j) on 7/2/2001 two telephone calls received by Dr.Mainkar, the first call at 7.15 a.m. and the second call at 7 p.m. On 8/2/2001 Dr.Mainkar received in all five telephone calls starting from 12.30 noon and the last call was at 5 p.m. from the same Salimbhai. All the calls were monitored and after the last call the accused no.1 was taken in custody, with Jotiba Ingawale (PW 40) alerting the police after the accused no.1 had made the telephone call at 4 p.m. (k) seizure of clothes of the accused and recovery of bicycle (article 28) in the night of 8/2/2001; (l) recovery of Herculus bicycle used by Rishikesh to go to Aptech computer class, in the midnight on 8/2/2001 from a well. (m) recovery of the dead body of Rishikesh on 9/2/2001 between 8 to 9 a.m. with one clutch wire seen around the neck of the deceased. Photographs taken by camera as well as video shooting also done; (n) recovery of wrist watch (article 18) worn by 14 the deceased on 11/2/2001 from the house of accused no.1, and recovery of wallet of the deceased (article 19) from the house of PW 27-Sudhakar and recovery of M-80 of accused no.1 from Khalad-Jejuri road; (o) recovery of the chappals (article 20) worn by the deceased from the well on the road from Ambodi to Waghapur chouphala; (p) recovery of Ghamele on 23/2/2001; (q) recovery of tikas on 23/2/2001; (r) accused no.1 met Sudhakar (PW 27) and had hidden the wallet of the deceased behind a photoframe in his house. PW 29-Pramod was asked to collect money from Dr.Mainkar on 6/2/2001 but he declined to search for a suitable man to collect the ransom from Dr.Mainkar; and (s) on 7/2/2001 the accused no.1 sold his gold chain and fetched an amount of Rs.520/- which amount he required to hire a person to collect the ransom amount from Dr.Mainkar. 15 (t) On 8/2/2001, the accused no.1 hired a person from Hadapsar and brought him to Saswad at about 4.30 p.m. under guise to work in the sugarcane juice shop and when he was told to go and pick up the bag, he had refused. In addition the prosecution case is based on extra judicial confession made by accused no.1 to Pramod Tekawade (PW 29), extra judicial confession made by accused no.2 to Gokul Khomane (PW 28) and the one made by accused no.3 to Rahul Borkar (PW 23). 4. The printed paper book in Confirmation Case No.1 of 2005 suffers from serious printing mistakes. For example on Issue No.7 framed in para 4 of the impugned judgment, the printed paper book records the findings in the affirmative whereas in the original judgment the findings recorded by the learned trial Judge on the said issue are in the negative and that is also clear in the operative part of the order of conviction and sentence. Wherever there was doubt or difficulty in appreciating the oral depositions appearing in the printed paper book, we have referred to the original Marathi depositions of the concerned witnesses keeping in mind the fact that the oral 16 depositions before the trial Court of the local witnesses are recorded in Marathi and they are simultaneously translated in English by the learned Presiding Officer. In case the oral depositions are in a language other than Marathi, the learned Presiding Officer translates the same in Marathi and this recording of oral depositions simultaneously in Marathi and English is followed by almost all the Sessions Courts in the State. We also have the advantage of Shri Vijay Savant, the learned Special Prosecutor before us who also acted in the same capacity before the trial Court. 5. Saswad is a town located on the Pune-Jejuri Road with a population of about 25 to 30 thousand at the relevant time and is about 40 Kms. away from Pune and about 10 Kms. before Jejuri. The accused are the residents of village Ambodi which is at a distance of about 2 1/2 to 3 Kms. from Saswad (on the North Eastern side) and it is not uncommon that the residents of Ambodi walk down to Saswad for work or for other purposes like education, visit to doctor, marketing and going to ST stand etc. Accused nos.1 and 2 were the students of Waghire college at Saswad which is located on the Pune-Saswad road and 17 the ST bus stand is at a short distance from the said college towards Pune side. Aptech computer class was located opposite the ST stand at the relevant time and within the municipal limits. 5A. The learned counsel for the accused no.1 submitted that the order of conviction and sentence passed by the learned Addl. Sessions Judge in the instant case is not supported by any cogent and reliable evidence. The prosecution has failed to prove its case beyond reasonable doubt, regarding the culpability of the accused no.1 in causing the murder of the victim viz. Rishikesh. The prosecution case is based entirely on the circumstantial evidence and the chain of circumstances has a number of missing links and, therefore, the prosecution story on the basis of such an evidence ought to have been rejected by the trial Court. The investigation was tardy, full of loopholes and strongly influenced by the public outcry in the form of processions and the media reporting etc. If the accused are from a tiny village Ambodi, it is surprising that on the 1st accused having been arrested on 8/2/2001, the other two accused were taken in custody only on 18/2/2001 and the evidence of the IO (PW 41) does not explain 18 as to how they zeroed on these other accused. The TI parade held on 15/3/2001 and conducted by the Tahsildar (PW 37) was full of procedural flaws thereby vitiating the identifications of the accused and the report of the TI parade was not available. The complainant (PW 38) being a well known doctor at Saswad, the investigation machinery was under tremendous pressure and innocent college and school boys were roped into as the accused. The recovery of the dead body of the victim and his belongings were sought to be proved by the witnesses who were either doctors or traders and it was unbelievable that these traders or telephone booth owners could identify accused no.1 after a gap of few years before the trial Court. As per the learned counsel the chain of circumstantial evidence did not remain unbroken so as to unerringly point out the involvement of accused no.1 alone or along with the accused and the prosecution failed to prove the charges as levelled at Exhibit 5. He placed reliance on the decision of the Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra [(1984) 4 SCC 116] [(1984) 4 SCC 116] [(1984) 4 SCC 116]. 6. Before we start sifting the evidence, it is pertinent to note that ordinary men and women on 19 hearing shocking news or incidents unfold their memories if they have any connection with such incidents. The police diary indicates that Saswad and its neighbouring area was already under a shock on account of two-three other incidents of kidnapping of children and the missing of Rishikesh further added to the fear and shock of these people. Public protests and processions further make the memories linger for longer. Ambodi is a small village with less than 100 families and all the accused are from such a hamlet and from the farmers’ families. The accused no.1, though a college student, had a two wheeler with him all the time and this vehicle certainly added to his identity in the college, at Saswad, with the shopkeepers and the telephone booths etc. and around the village life. The missing of a famous doctor’s son had swept the surrounding areas of Saswad town and for four days it remained a mystery. The accused no.1 was taken in custody and the victim’s dead body was recovered at his instance and from his agricultural land on 9/2/2001 at about 9 a.m. in the presence of a large number of people who had assembled at the spot as is clear from the photographs duly proved. The accused was in veil when the body was recovered at his instance. His 20 arrest and recovery of the dead body were shocking news which perhaps hit the headlines in the local press. No wonder then, that the men and women from Ambodi and Saswad recalled their memories of seeing all the accused together a few days before either on the M-80 vehicle, the telephone booths, grocery shops or tea stalls etc. In the restaurant he was a frequent visitor and the young tea server knew him but it is possible that he was also one of those stunned by the news of the arrest of accused no.1 and the recovery of the victim’s dead body at his instance. Obviously this tea server recalled the visit of accused no.1 along with other accused on 4/2/2001 at about 7.45 p.m. and more so when he was paid extra money and asked to retain it for the next day. The statements of most of the witnesses examined before the trial Court have been recorded on or after 9/2/2001, except those who were panch witnesses for the recovery of the victim’s cycle in the mid night on 8/2/2001. The extra judicial confessions made by accused no.2 and the juvenile accused are also after 9/2/2001. Though the accused were taken in veil for the TI parade on 15/3/2001, the report of the TI parade is not very significant for proving the case of the prosecution as most of 21 the concerned witnesses have identified the accused no.1 or accused no.2 before the trial Court. We have, therefore, to consider the prosecution case and the challenge to it on the backdrop of these circumstances and the human behaviour of ordinary men and women.