AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1435 OF 2003 Kishor Sukdeo Satpute, Convict prisoner No.C/4017, at presently confined at, Nashik Road, Central Prison, Nashik. ) ) ) ) ... Appellant Versus The State of Maharashtra, through P.I. of City Police Station, Manmad, Dist. Nashik. ) ) ) ... Respondent Mr. Abhaykumar Apte for the appellant. Ms. P.H. Kantharia, A.P.P. for respondent-State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE ORDER IS RESERVED : 7TH JULY, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: ___ JULY, 2010. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The appellant was tried by the Sessions Judge, Malegaon in Sessions Case No.86 of 2000 for offences AJN 2 punishable under Sections 302, 363, 384 and 201 of the Indian Penal Code (for short, “the IPC”). By impugned judgment and order dated 31/12/2002, the appellant has been convicted for offences punishable under Sections 363, 384 and 201 of the IPC and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default, to suffer rigorous imprisonment for two months on each count. The appellant is also convicted for offence punishable under Section 302 of the IPC and sentenced to suffer life imprisonment and to pay fine of Rs.500/-, in default, to suffer rigorous imprisonment for six months. A specific direction is issued that the appellant shall serve out at least 20 years of imprisonment while undergoing the sentence of life imprisonment. The substantive sentences were ordered to run concurrently. 2. Being aggrieved by the said judgment and order, the appellant has preferred the present appeal. It is necessary to begin with the facts of the case. AJN 3 3. The complainant PW-1 Sunil Lodha is a resident of Manmad, Taluka Nandgaon, District Nashik. He was residing with his wife PW-9 Rekha, minor son Shubham (“the deceased”) aged 7 years and minor daughter Apurva, aged 2 years. PW-1 Sunil runs General Stores in the campus of S.T. Bus stand at Manmad. The appellant is also a resident of Manmad. He was working in the shop of PW-1 Sunil. The deceased was a student. He was studying in Standard II in Chatre New English School at Manmad. Since 12/8/2000 was a Saturday, the school hours were from 7.30 a.m. to 9.30 a.m. PW-1 Sunil had taken the deceased to the school at 7.30 a.m. on his scooter. Thereafter, he went to his shop. He received a telephone call from his wife PW-9 Rekha that the deceased had not returned home from school. She informed him that she was told by the friends of the deceased that the deceased was taken on bicycle by his uncle. PW-1 Sunil then came to his house. He and his wife PW-9 Rekha locked the house and went out in search of the deceased. The deceased, however, could not be AJN 4 traced. PW-2 Uttamchand, cousin of PW-1 Sunil went to Manmad City Police Station at about 12.00 O' clock in the noon and lodged a missing report. The search for the deceased was on. PW-1 Sunil then went to Sangam Cycle Mart. He found from the register of the said cycle mart that the appellant had hired a bicycle. He then went to the house of the appellant. He came to know that the appellant had not come to his house for the last one and half day. He took photograph of the appellant from the appellant's mother and showed it to PW-6 Roshan, friend of the deceased. PW-6 Roshan stated that the deceased was taken on bicycle by the person whose photogrpah was shown to him. PW-1 then went to Manmad Police Station and lodged his complaint at 5.30 p.m. on 13/8/2000, which is at Ex-13. On the basis of this complaint, investigation was set into motion. The appellant was arrested on 15/9/2000 from Manmad City. After completion of investigation, the appellant came to be charged as aforesaid. AJN 5 4. In support of its case, the prosecution examined as many as 18 witnesses. Apart from the complainant - PW-1 Sunil and PW-2 – Uttamchand, the uncle of the deceased, the prosecution examined PW-6 – Roshan, the friend of the deceased, PW-9 Rekha, the mother of the deceased, PW-4 Dr. Jadhav, who had done the postmortem on the deceased, PW-5 Vaibhav, another friend of the deceased and PW-7 Dilip, who had seen the appellant taking the deceased on the bicycle, PW-8 Vithabai, who had received the ransom call, PW-10 Akhtar, the owner of Sangam Cycle Mart, PW-11 Rajendra, who used to sell coconuts and who had seen the appellant with the deceased on 12/8/2000 between 10.30 a.m. to 10-45 a.m. and PW-12 Kadu, the Nayab Tahsildar, who held the identification parade. The details of investigation were given by the police personnel PW-14 HC Vithhal, PW-15 PSI Rajdeo and PW-16 PI Khairnar. The prosecution also examined panchas to prove the relevant panchnamas. 5. The defence of the appellant was one of total denial. AJN 6 According to the appellant, PW-1 was annoyed because the appellant had left his job and, hence, a false case was filed against him. After perusing the evidence on record, learned Sessions Judge convicted the appellant as aforesaid and, hence, this appeal. 6. We have heard, learned counsel appearing for the appellant and learned A.P.P. appearing for the State, at some length. With the help of learned counsel, we have gone through the record. 7. Mr. Apte, learned counsel for the appellant submitted that the prosecution has failed to adduce any evidence to substantiate its case that the appellant had kidnapped the deceased with intention to grab money from PW-1 Sunil. The case that ransom was demanded has not been proved. Counsel submitted that PW-8 Vithabai has stated that on 12/8/2000 at 10.30 a.m., when PW-1 Sunil and PW-9 Rekha, the father and mother of the deceased were not at their house, the phone in their house rang and, AJN 7 therefore, she opened the house and attended to the phone call. According to her, the caller asked for PW-1 Sunil and PW-9 Rekha and when he got to know that they were not at home, he told her to inform them that their son was with him and that they should keep an amount of Rs.50,000/- ready. Counsel submitted that PW-8 Vithabai did not disclose this fact to anybody. According to her, she informed her husband but her husband told her that she should not take the call seriously. According to her, because her daughter was to undergo an urgent operation, she left for Nasik. Counsel submitted that this conduct is absolutely unnatural. He submitted that in her police statement, PW-8 Vithabai has omitted to state that she went to Nasik because her daughter was to undergo an urgent operation, and that is why she did not inform PW-1 Sunil and PW-9 Rekha about the ransom call. Counsel submitted that apart from PW-8 Vithabai's evidence there is no other evidence on record to establish the prosecution case that such a call was received. Counsel submitted that according to PW-9 Rekha, the AJN 8 mother of the deceased, PW-8 Vithabai came in the evening of 13/8/2000 and told her about the ransom call. Counsel submitted that this story is inherently improbable and deserves to be rejected. Counsel submitted that if the ransom call is not proved, then there is no motive for the offence. He submitted that in a case which rests on circumstantial evidence, motive plays a very important role and if the motive is not proved, the prosecution must fail. Counsel submitted that the prosecution has also not been able to establish beyond reasonable doubt that it is the appellant who took the deceased to the Fort near Manmad and killed him. Counsel submitted that the evidence does not inspire confidence and in the circumstances, the order of conviction and sentence must be set aside. 8. Ms. Kantharia, learned A.P.P. on the other hand, submitted that the prosecution has proved its case beyond reasonable doubt. She submitted that PW-8 Vithabai's evidence inspires confidence. She submitted AJN 9 that PW-8 Vithabai could not inform PW-1 Sunil and PW-9 Rekha about the ransom call because she had to hurriedly leave for Nasik. She submitted that in any case, even if this case of the prosecution is kept out of consideration, there is sufficient evidence on record to establish the case of the prosecution that the appellant committed murder of the deceased. Counsel submitted that the impugned judgment and order does not merit any interference. 9. It is an admitted fact that PW-1 Sunil runs General Stores at Manmad and the appellant was working with him. PW-1 Sunil in his evidence has stated that on 12/8/2000, he had taken the deceased to the school at 7.30 a.m. and thereafter he had gone to his shop. He has stated that he received a call from his wife that the deceased had not come from school and that the friends of the deceased had told her that the deceased was taken somewhere on a bicycle by his uncle. According to PW-1 Sunil, he rushed home. He and his wife PW-9 Rekha then left their house in search of the deceased. He then went AJN 10 to the bicycle shop and found an entry in the register showing that the appellant had hired a bicycle from the said shop. According to him, he then went to the appellant's house and took a photograph of the appellant from his mother. He went to the friends of the deceased and showed the photograph of the appellant to them. He was informed by the friends of the deceased that the deceased was taken on bicycle by the person whose photograph was shown to them. He then went and lodged a complaint, which is at Ex-13. Ex-13 is lodged at 5.35 p.m. on 13/8/2000. According to PW-1 Sunil when he came home, his wife told him that PW-8 Vithabai, the neighbour had received a call that the deceased was with the caller and that they should arrange a sum of Rs.5 lakhs and that amount should reach near the Railway Bridge on Ankai Road within 30 minutes and if the police is informed about it, dire consequences will ensue. 10. Evidence of PW-1 Sunil is corroborated by the evidence of PW-9 Rekha. She has stated that the AJN 11 deceased was taken to the school by PW-1 Sunil. She has stated that the deceased was wearing school uniform i.e. blue shirt having checks and blue pant. According to her, a school bag of blue colour was with him and he was wearing chappels. According to her, as a practice, key of the house used to be with her neighbour PW-8 Vithabai. She has confirmed that on 12/8/2000, the deceased did not return home, hence, she went in search of him. According to her, the deceased's friends told her that his uncle had taken him away on a bicycle. She then phoned PW-1 Sunil and informed him about these facts. She has further confirmed that PW-1 Sunil came home and then they went in search of the deceased but, the deceased could not be traced. She has further stated that on 13/8/2000 when she came home at about 7.30 p.m., she told PW-8 Vithabai that the deceased was missing and PW-8 Vithabai told her that on the previous day, she had received a ransom call on her phone. Evidence of PW-1 Sunil and PW-9 Rekha confirms that on 12/8/2000, the deceased was dropped in the school in the morning by AJN 12 PW-1 Sunil but he did not return home. 11. The prosecution has examined four witnesses to establish its case that the deceased and the appellant were last seen together. PW-5 is Vaibhav Vanway, who was a classmate of the deceased. In his evidence, Vaibhav has stated that the deceased was his friend. The deceased was studying in the same school in which he was studying. According to him, on the day of incident at about 9.30 a.m., he along with his friends Girish, Roshan and Vrushabh was passing through the school yard. When they reached near the Neem tree, a tall and blackish man came on bicycle near the said tree. The deceased called him “kaka”. That man told the deceased that he would take him to his father's shop and he should accompany him. The deceased sat on the carrier of the bicycle. His blue colour bag was with him. The said person took away the deceased on bicycle. PW-5 Vaibhav identified the appellant in the court as the same person who had taken away the deceased with him. He has also AJN 13 stated that he identified the appellant in the Kacheri as the man, who had taken the deceased with him. PW-5 Vaibhav was obviously referring to the identification parade. When school bag of the deceased (article 11) was shown to him, he identified it as the school bag of the deceased. He has been cross-examined but he has not deviated from his version in the examination-in-chief. In the cross-examination, he has denied that before visiting Kacheri, the police had shown the accused to him. He has denied that the mother of the deceased showed him the photograph of the accused and told him to depose that this is the same person who had taken the deceased on bicycle. The evidence of PW-5 Vaibhav inspires confidence. 12. Prosecution has also examined another child witness PW-6 Roshan. He has also confirmed that when he along with the deceased, PW-5 Vaibhav and Vrushab were walking in the school yard, a man came on a bicycle near the Neem tree. The deceased called him as “kaka”. The AJN 14 man told him that he would take him to his father's shop. The deceased sat on the carrier of his bicycle with his school bag and went away with him. PW-6 Roshan has identified the appellant in the court as the same person who had taken the deceased on bicycle. He has also stated that he had identified the appellant as the same person in the Kacheri out of nine persons. He was also referring to the identification parade. In the cross- examination, he denied that in the Manmad court, he had seen the appellant. He denied that before the identification parade in the Kacheri, the police had shown him the appellant. His evidence also inspires confidence. It is pointed out to us that PW-6 Roshan has stated that on 13/8/2000, father of the deceased had shown him one photograph. He has stated that he had told the father of the deceased that this is the same man who had taken away the deceased on bicycle. Therefore, the identification of the appellant by this witness has no value. In our opinion, this admission does not have any adverse impact on PW-6 Roshan's evidence as, in fact, it is AJN 15 the case of the prosecution that PW-1 Sunil had been to the house of the friends of the deceased and had shown them the photograph of the appellant to find out whether it is the appellant who had taken away the deceased. The friends had confirmed that the appellant had taken away the deceased. After taking clue from this, PW-1 Sunil lodged the complaint naming the appellant and investigation disclosed that the appellant had taken the deceased away. Therefore, on the date of incident itself, PW-6 Roshan had identified the appellant. Hence, even if the identification parade in the court is left out, PW-6's evidence supports the prosecution case. 13. The prosecution has examined PW-7 Dilip Tejwani, the neighbour of the appellant. He owns “Sainath Dhaba” situated at Manmad-Nagar Road. According to him, on 12/8/2000, he came to his hotel at 9.00 a.m. as usual. At about 10.00 a.m., he saw the appellant riding on his bicycle with one child sitting on the carrier proceeding towards Ankai Fort. Though he gave a call to the AJN 16 appellant, the appellant did not stop. According to PW-7 Dilip, at about 12.30 noon, the appellant returned. He drank water at his hotel. When he inquired with the appellant about the deceased, the appellant told him that he had taken the deceased to his father at Ankai. In the cross-examination, this witness has denied that he did not know the appellant. He has made no damaging statement in the cross-examination. We find no difficulty in placing reliance on this witness. 14. The prosecution has examined PW-11 Rajendra Vaidya, who sells coconuts. According to this witness, on 12/8/2000, he had made arrangements to sell coconuts on the ota of his house. At about 10.30 – 10.45 a.m, a young man of 22 to 23 years came on a bicycle to his shop. A small boy of about 6 to 7 years of age was also with him on the bicycle. He was sitting on the carrier of the bicycle. The small boy was crying and calling out for his Mummy and Papa. He asked that man as to why the small boy was crying. That man told him that the parents of AJN 17 the small boy will be coming for Darshan and that the small boy was remembering them. That man purchased coconut from him, kept the bicycle and the school bag with him and went with the small boy towards Ankai Fort. According to this witness at 12.00 noon, the said man came back. He was alone. When he asked him as to where the small boy was, that man told him that the small boy was with his parents. That man then took away the school bag and went away on his bicycle. When the school bag (article 11) was shown to him, this witness identified the said school bag as the same school bag which the appellant was carrying. When clothes (articles 5 and 6) were shown to him, he stated that the said clothes were worn by the said person i.e. the appellant. He identified the appellant who was sitting in the court as the same man. He further stated that on 7/9/2000, he was called to Tahsil office Nandgaon. He identified the appellant in the identification parade. According to him, on 8/11/2000, he was again called to the Tahsil office at Nandgaon. He was shown seven photographs of small AJN 18 boys. He identified one photograph as that of the small boy who was brought on bicycle by the said man i.e. the appellant. That photograph is at Ex-38. He also identified the blue colour school bag (article 11) when it was shown to him. He has been cross-examined at length but he has stood firm in the cross-examination. The evidence of all these witnesses show that the appellant was last seen with the deceased on 12/8/2000. The appellant was with the deceased from 9.30 a.m. till 10.45 a.m. 15. The second clinching piece of evidence is the identification of the appellant in the identification parade held by PW-12 Kedu Dhargaon, Nayab Tahsildar. The appellant was arrested on 16/8/2000. The identification parade was held on 7/9/2000. In the identification parade, PW-5 Vaibhav, PW-6 Roshan and PW-11 Rajendra Vaidya identified the appellant. We have carefully read the evidence of PW-12 Kedu, Nayab Tahsildar. In our opinion, he took necessary precaution while holding the identification parade and we have no hesitation in AJN 19 accepting this evidence. In the cross-examination of PW-5 Vaibhav, PW-6 Roshan and PW-11 Rajendra Vaidya have stuck to their case that they had identified the appellant in the identification parade. The defence has not been able to elicit anything in their cross-examination which can have any adverse impact on the identification parade evidence. Though PW-6 Roshan has stated that on 13/8/2000, PW-1 Sunil had shown him the appellant's photograph, and he had told PW-1 Sunil that he is the same person who had taken the deceased away, it is pertinent to note that identification parade was held on 24/8/2000. 16. PW-12 Kedu, the Nayab Tahsildar also showed photographs of children of similar age group along with the photograph of the deceased to PW-11 Rajendra Vaidya. PW-11 Rajendra Vaidya identified the photograph (Ex-38) as that of the deceased. Thus the identification of the appellant done in the court by PW-5 Vaibhav, PW-6 Roshan and PW-11 Rajendra Vaidya is supported and AJN 20 corroborated by the memorandum of identification parade, which is at Ex-40. Identification of photograph of the deceased done by PW-11 Rajendra Vaidya supports the case of the prosecution that it is the appellant who took the deceased along with him on that day. 17. PW-15 API Rajdev has stated that on 16/8/2000, the appellant made a statement that he was ready to show the place where the dead body of the deceased was hidden. Memorandum (Ex-23) was recorded. The appellant then led the police and the panchas to Village Ankai. He took them to Ankai fort. He showed them the dead body of the deceased hidden under branches of the trees. Panchnama (Ex-24) was prepared. Inquest panchnama (Ex-17) was also prepared. Spot panchnama (Ex-19) was also prepared. PW-15 has stated that the dead body was identified by Dr. Pannalal Shingi relative of PW-1 as the dead body of deceased Shubham. PW-3 Ashok Sanap is the pancha to Memorandum (Ex-23) and panchnama (Ex-24). He has confirmed that the dead body AJN 21 of deceased Shubham was recovered at the instance of the appellant and it was identified by Dr. Shingi. Recovery of dead body of the deceased at the instance of the appellant is a clinching circumstance. It lends great support to the prosecution case. 18. We must now go to the seizure of bicycle which was used by the appellant to take the deceased to the Ankai Fort. PW-10 Akhtar Sikander is the owner of Sangam Cycle Mart situated near S.T. Bus stand at Manmad. He knows both the appellant as well as the complainant PW-1 Sunil. According to him, on 12/8/2000 at 9.25 a.m., the appellant came to his shop and hired a black coloured bicycle (no.32) having carrier and brought it back at 1.00 p.m. The Register of Sangam Cycle Mart is Article 9 and relevant entry is at serial no.7. It shows that the appellant had hired bicycle on 12/8/2000 at 9.25 a.m. and had returned it at 1.00 p.m. He had paid Rs.8 as hire charges. PW-10 has identified the Register (article 9) and entry at serial no.7. He has stated that the complainant came to AJN 22 make inquiry on 13/8/2000 at 5.00 p.m. In the cross- examination, he has maintained his version in the examination-in-chief. He has only omitted to say that the complainant had come to him on 13/8/2000 to make inquiry. This omission is not a material omission. 19. PW-16 PI Khairnar, the investigating officer has stated that on 18/8/2000, a black bicycle (article 10) and Register (article 9) were seized under panchnama (Ex-50) in the presence of PW-17 Javed Shaikh. PW-17 Javed Shaikh has confirmed that bicycle (article 10) and Register (article 9) were seized under panchnama (Ex-50) from Sangam Cycle Mart. 20. PW-16 PI Khairnar has further stated that on 19/8/2000, the appellant made a statement that he will show the place where the deceased's school bag was hidden. Memorandum of statement was recorded. It is at Ex-51. The appellant led the police and panchas to Fauji Dhaba on Manmad-Yeola Road. From that place, he led AJN 23 them to one nala. The appellant produced school bag (article 11). There were total 14 articles in the said bag. All the articles were taken charge of under panchnama (Ex-52). PW-18 Kailas Patil is the pancha to this discovery panchnama. In his evidence, PW-18 Kailas Patil has confirmed the above facts. His evidence is free from any infirmity. PW-1 Sunil and PW-9 Rekha, the father and mother of the deceased have identified these