1 cri.appeal no.863-876 of 2004 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICITON CRIMINAL APPEAL NO. 863 OF 2004 1. Yovel Vijaykumar Gauri, age 23 years, Occupation Nil, resident of Gadag, Betgiri, (Karnataka State), 2. Salim Khudbuddin Shaikh, age 42 years, Occupation Nil, Resident of Revani Valli, Marg, Taluka Miraj, District Sangli, 3. Prabhakar alias Balasaheb Mohansing Rajput, age 40 years, Occupation : Rickshaw driver, R/o. Rajput Wada, Revani Galli, Miraj, Taluka Miraj, Dist. Sangli. Presently all languishing in Kalamba Jail at Kolhapur . ... Appellants Versus State of Maharashtra through Miraj Police Station, Miraj. ... Respondents WITH CRIMINAL APPEAL NO. 876 OF 2004 State of Maharashtra, through Miraj Police Station, Miraj ... Appellant Versus 1. Yovel Vijaykumar Gauri, age 23 years, Occupation Nil, resident of Gadag, Betgiri, (Karnataka State), 2. Salim Khudbuddin Shaikh, age 42 years, Occupation Nil, Resident of Revani Valli, Marg, Taluka Miraj, District Sangli, 2 cri.appeal no.863-876 of 2004 3. Prabhakar alias Balasaheb Mohansing Rajput, age 40 years, Occupation : Rickshaw driver, R/o. Rajput Wada, Revani Galli, Miraj, Taluka Miraj, Dist. Sangli. ... Respondents Mr. D.N. Salvi for the appellant in Cri. Appeal No.863 of 2004 and respondents in Cri. Appeal No.876 of 2004. Mr. J.P. Yagnik A.P.P. for Applicant State in Cri.Appeal No. 876 of 2004 and for Respondent State in Cri.Appeal No.863 of 2004. CORAM : NARESH H. PATIL & K.U. CHANDIWAL,JJ. DATED : 12TH AUGUST, 2011 JUDGMENT (Per K.U. CHANDIWAL,J.): 1. The accused appellants have challenged the conviction recorded in Sessions Case No. 172 of 2004 by the Additional Sessions Judge, Sangli for the offence punishable under Section 120B, 364-A, section 302 read with 34 of I.P.C. convicting them to life imprisonment for the offence punishable under section 302 read with 120B and for the offences under section 120-B to suffer R.I. for seven years, and for offence under section 364A read with section 120B of I.P.C., the appellants are directed to suffer imprisonment for life and to pay fine of Rs.500/- each, by judgment and order dated 15.5.2004. FACTS : 2. On 2.8.2002 Ritesh Devtale aged 11 years had gone to attend his school. However, after school hours at 5.30 p.m., he was kidnapped for ransom of Rs. 7 lacs by carrying him on bicycle by a known person. Relentless search was made for the boy by the family members PW. 3 Rajendra Devtale, PW 5 Mogar Devtale. 3 cri.appeal no.863-876 of 2004 Telephone call was received by PW 5 Mogar Devtale by anonymous caller demanding ransom of Rs. 7 lacs. to release the kidnapped son Ritesh safely. Mogar Devtale was informed by the caller to attend the mid night call and desist from reporting the matter to police, else to face elimination of Ritesh. Missing report (Exh. 41) was lodged with police on 3.8.2002. Subsequently report Exh. 44 at Meeraj police station was lodged being Crime No. 93 of 2002. During the investigation, it revealed on 20.6. 2002 Dr. Mrs. Sangita Gaikawad (PW 25) had also filed identical report of receiving threats for kidnapping her son Nayanish. She suspected Yovel Gauri. PW 16 had seen Yovel Gauri with kidnapped boy Ritesh on 2.8.2002, which he informed the police on 7.8.2002 before the dead body of Ritesh could be traced. 3. The accused Yovel Gauri was arrested from Gadag in Karnataka by PW 31 on 10.8.2002 and he was produced before I.O. on 11.8.2002. The accused Raju Jadhav (Approver) and Salim Shaikh were arrested on 11.8.2002. 4. Dead body of Ritesh was found on 9.8.2002 in hollow pipelines, situated at Gavanepatil Industries, lying near its curing tank. Inquest panchanmaa Exh, 64 was drawn. The Post mortem of dead body was performed by PW No. 33 Dr. Ajit on 9.8.2002. In the opinion of Medical Officer the probable cause of death was asphexia due to restriction on neck with ligature. 5. Accused Baslasaheb Mohansing Rajput (hereafter referred to as "Balasaheb") was arrested by police on 18.8.2002. After arrest of these suspects at their behest recovery was made. 4 cri.appeal no.863-876 of 2004 6. The incriminating articles like dress, wrist watch on the person of Ritesh, bicycle produced by accused Salim Shaikh, apparels of Yovel Gauri were taken charge. The articles like school bag, the tiffin, the water bag compass box belonging to Ritesh was seized from the house of approver Raju Jadhav. The investigation revealed after killing Ritesh in the room at Rakhamabai Chawl by strangulation his dead body was kept in gunny bag and accused carried gunny bag in an auto rickshaw to the site of Gavanepatil Industries. witnessed by few persons. The gunny bag and nylon rope was taken charge from the house of Balasaheb on 20.08.2002. In the identification parade held by Tahsildar, witnesses had identified accused as well articles belonging to Ritesh. 7. On 29th and 30th October, 2002, Raju Jadhav expressed willingness for confessional statement. He was accordingly brought before the learned Magistrate. Such statement is at Exh. 31 and 33. In his statement recorded under section 164 Cr.P.C. the approver Raju Jadhav furnished minute account of the offence of hatching of conspiracy initiated by Balasaheb, agreed to be actuated and complied by him and other two accused. He informed, in pursuance of the arrangement he was to make a phone call to Mogar Devtale. which indeed he complied from the booth belonging to PW 7. It was also decided at the instance of Balasaheb even if ransom of Rs. 7 lacs., is received from Mogal Devtale, Ritesh should not be spared as he has seen the suspects. He was to be killed and consequently on 5.8.2002 in the night Ritesh was killed by strangulation. The telephone diary was taken charge from the house of Yovel Gauri at Gadag containing telephone numbers of Devtale and others. The seizure of documents from K.H. Patil Hosptial at Hudkoti showed that during 5 cri.appeal no.863-876 of 2004 the relevant period, Yovel Gauri did not attend his job. PW 1 Sunil Satpute as directed by police being an architect, has prepared and produced sketch of Ideal English School, Rakhamabai Chawl, Gavane Patil Industries. The seized items were sent to the office of Chemical Analyzer for analysis. The chargesheet was submitted before the leaned J.M.F.C. Meeraj. He in turn committed the case to the Sessions Court. 8. The State feels that the imposition of life imprisonment to the accused/appellant is disproportionate and appeal for enhancement of sentence against appellant is also preferred by the State being Criminal Appeal No. 876 of 2004. The State feels that the act of accused was barbaric in nature. The idea of killing and demanding money though came from one of the accused, but it was discussed and approved by other accused each accused played identical role during the commission of crime and hence, death penalty should have been awarded. For the said purpose State placed reliance on the judgment in 2000 SCC Cri. Page 1546. 9. Owing to the application at Exh. 8 moved by Prosecutor in respect of confirmation of Raju Jadhav to be approver, the order was passed by the leaned Sessions Judge on 27.3.2003 and an application under Section 307 of Cr.P.C. was allowed. Pardon was tendered to accused Raju Jadhav (subsequently turned as PW 2) on a condition of his making full and true disclosure of whole circumstances within his knowledge relating to the offence involved and the transactions having taken place between him and the colleagues (other accused). Such powers were 6 cri.appeal no.863-876 of 2004 legally permissible to be exercised by the learned Sessions Judge. 10. Charge below Exh. 12 was explained to the accused. They denied the same. Accused Yovel Gauri claimed that at the material time he was daily wager at K.H. Patil Hospital, Hulkoti. He claimed he was apprehended on 9.8.2002 and brought at Meeraj Police Station. It was false case against him. The accused Balasaheb claim that initially he was driving auto rickshaw however since he became head of Shiv Sena Miraj, he has entered into cross terms with the police officers and Investigating Officer Shri. Bhure had with ulterior motive and vengeance in his mind falsely roped him in the case. Accused No. 2 Salim claim that he is innocent and falsely implicated. He submitted disclosure statement are under the compulsion as he was mercilessly assaulted by police. 11. Accused Yovel Gauri examined Dr. Nagnur of K.H. Patil Hospital as defence witness at Exh. 153. The prosecution has examined following 35 witnesses : PW NO.(Exh.) Name PW 1 (Exh.18) Sunil Satpute Architect who made site maps PW 2 (Exh.23) Raju Jadhav (Approver) Accused/approver PW 3 (Exh.40) Rajendra Devtale Cousin of deceased. He spoke of receiving phone call and lodging report at Miraj city Police Station. PW 4(Exh.42) Virupaksha Devtale Uncle of deceased. He is younger brother of Mogar. He attended telephone call at 7.30 pm on 2.8.2002 and being asked gave residential numbers as 226397 of Mogar Devtale. 7 cri.appeal no.863-876 of 2004 PW 5 (Exh.43) Mogara Devtale Father of deceased. He narrates receiving phone call. He lodged FIR (Exh.44) PW 6 (Exh.45) Suhas Kapse Friend of (PW 5) Asked to install caller ID & tape recorder on phone. PW 7 (Exh.46) Vishwanath Vithal Kalgutgi Phone operator (Sai Communication) from where PW 2 made phone call to Mogar Devtale. PW 8 (Exh.47) Manisha Devtale Sister of deceased identified dead body and various articles. PW 9 (Exh.48) Aaabasaheb Bapu Patil Friend of PW 5 Saw Acc.1 take Ritesh on cycle. PW10 (Exh.49) Gopal Shinde Pan shop owner where Yovel kept cycle PW11 (Exh.51) Sanjay Gauraje Medical shop salesman who sold Alprax tablets to Salim. PW12 (Exh.53) Shivaji Kore Mechanic, who met the accused when rickshaw was punctured. PW13 (Exh.56) Mahavir Rukade One who saw accused with gunny bag. PW14 (Exh.61) Dasasaheb Devtale Cousin of Mogar Devtale (PW 5) Uncle of deceased. PW15 (Exh.62) Rajendra Gavane Owner of Gavane Patil cement factory PW16 (Exh.67) Uday Shah Witness near Pan shop PW17 (Exh.70) Suleman Shiralkar Sold rickshaw to Balasaheb PW18 (Exh.71) Jalinder Kadam Met accused at night of murder PW19 (Exh.72) Rajgonda Patil Pancha witness-sketch pens (Panchanama Exh.30-30A). PW20 (Exh.73) Jitendra Dhole Pancha witness - Youvel clothes (Exh. 74-74A) PW21 (Exh.75) Mayur Jadhav Ritish's friend (Deceased's friend) PW22 (Exh.79) Sambhaji Gurappa Kabade Pancha witenss- tiffin from Balasaheb, gunny bag. (Exh.80-80A). PW23 (Exh.82) Datta Shankar Karnde Pancha witness-Salim wrist watch (Exh. 82-82A). PW24 (Exh.85) Mahesh Madkum Pancha witness PW25 (Exh.88) Dr. Sangeeta Gaikwad Yovel trying to kidnap her son knows Salim. PW26 (Exh.92) Mahesh Islampure Watch seller to Manisha Devtale PW 8. 8 cri.appeal no.863-876 of 2004 PW27 (Exh.94) Sadashiv Edake Magistrate who held ID parade. Parade Memo proved (Exh.99,103) PW28 (Exh. 104) Altaf Shaikh One who came on 2/08/2002 at Rakhmabai chawl hearing screams of Ritesh. PW29 (Exh.108) Suryakant Khandagale Magistrate who recorded PW-2 confession. PW30 (Exh.110) Subodh Prabhakar Gore Photographer. PW31 (Exh.118) Alhirao Mahadev Pol PSI arresetd Yovel. PW32 (Exh.122) Somnath Narayan Chawan Pancha - seizure from Yovel's house PW33 (Exh.125) Dr. Ajit Prakeshchandra Malani Medical officer, post mortem. PW34 (Exh.135) Ranjit Dadasaheb Dhure PI - IO DW1 (Exh.153) Dr.Shankargauda Ramangauda Nagnur Medical Officer (to prove that on 1.8.02 and 6.8.02 Yovel was on duty. He has confirmed the entries does not show that on 4.8.2002 and 5.8.2002 Yovel attending on duty, for want of entries. 12. Dr. Ajit Malani, PW-33 carried post mortem on the dead body of Ritesh on 9.8.2002. He completely ruled out possibility of accidental strangulation or accidental constriction of neck. He found the ligature mark over interior aspect of neck below level of thyroid cartilage, horizontally placed, size 9.5 c.m. x 1.5 c.m. x 0.6 c.m. The posterior aspect of neck soft tissue was eaten by maggots. The injury were antimortem. According to him, such injury was sufficient in ordinary course of nature to cause death. Injury was possible by strangulation with a rope article 28 which was shown to him in Court. The post mortem reports are at Exhibit 126. He confirmed issuance of advance death certificate (Exhibit 127). 13. The learned defence Counsel submits that the death of Ritesh could not be on 5.8.2002. It must be in all probabilities on or about 2nd August 2002. The learned defence Counsel submits that age of maggots are not given. Alprax, a seditive tablet 9 cri.appeal no.863-876 of 2004 which was given prior to death of Ritesh should have its traces in the blood. If the rope article 28 was tied twice beyond the neck circumference, it should have parallel marks around the neck. 14. This theory of two marks around the neck is belied due to the decomposition of the dead body and the disappearance of the marks of rope. It was also possible as the rope was immediately removed after killing Ritesh. PW-33 has accepted in cross-examination, if the rope around neck is pulled with strength, then, a man may sustain jerk. If the rope is around the entire neck and pulled, then there will be full marks of ligature. In this case, it was not possible to record the circumference of neck due to maggots. Normally, a boy of 11 years shall have neck circumference of 25 to 30 c.m. or more. It is pertinent that PW-33 has disputed “it cannot be said that in this case as I wrote the Iigature marks of 9.5 c.m. around the neck, such marks were not around the entire neck.” He has disputed, “the ligature marks on the dead body of Ritesh were not homicidal”. 15. The learned APP has placed extracts from book of Medical Jurisprudence, wherein the author has observed that maggots have been found living particularly in the areas on account of poor hygienic or purulent discharge. The author has said the maggots do not eat away the human body. However, PW-33 categorically informs that certain neck portion of deceased was eaten away by maggots. This is even referred in the post mortem notes. We have no reason to dispute the same. 16. Taking these aspects into consideration, the defence contention of death of Ritesh on 2.8.2002 and not on 5.8.2002 is contrary to the record and even the evidence. 17. Even if Raju (PW-2) has said about applying force to the neck of Ritesh while strangulating, however, one does not know its strength including manner of such force. 10 cri.appeal no.863-876 of 2004 18. So far, tablet Alprax is concerned, PW-33 has opined that such tablets cannot be administered to a boy below 12 years. However, that does not mean, if anybody has administered the same, he was prevented from doing so. Alprax was lastly administered to Ritesh at 10 a.m. on 5.8.2002, by diluting in water and Ritesh was forced to drink, Thereafter, at around 1.00 noon, he was served with two mouthful of spoons of rice. Ritesh was killed at 5.30 p.m. when he was unconscious. The time spent in between would not allow to detect seditive (Alprax) in blood of Ritesh. In this situation of the matter, the objection to no traces in lungs is unsustainable. 19. The learned defence Counsel has submitted that (a) Evidence of PW-2 Raju is totally unreliable and unworthy, he has not come out with complete disclosure of offence. (b) The circumstances are not established or its chain is also not established. (c) The demeanor of PW-2 before the Court is contrary to his behaviour when Ritesh was allegedly kidnapped. (d) The recovery of hair in the gunny bag is false and for want of its test with family members of accused Balasaheb, the C.A. report (Exhibit 34) loose significance. (e) The prosecution should have produced the C.A. report concerning age of maggots it deliberately suppressed. (f) The story of PW-28 Altaf Shaikh having seen the accused in the room at Rakhmabai Chawl with the deceased is unreliable. (g) The story of rope projected by PW-2 Raju is falsify by recovery of lace tied on the right hand of victim which was also tied on the neck of the victim so tied that it was required to be cut open by the Doctor at the time of post mortem. (h) The recovery of tiffin, rope, gunny bag can not be believed because no man of ordinary prudence would senselessly allow these worthless items in his house when few recovery was already made from arrested accused prior to 18th August 2002. The photographs of the dead body are suppressed, else it could have shown wrist watch on dead body. 20. The learned APP submits that a 11/12 years boy was mercilessly killed. The witnesses are honest. Medical evidence supports theory of prosecution. The allegation of planting against Balasaheb is unrealistic. The child was kidnapped for ransom and was killed as part of conspiracy, it was decided motive. The learned APP 11 cri.appeal no.863-876 of 2004 asserts, this is a fit case to award rarest capital punishment as victim of murder is innocent child while the accused were in a dominating position. 21. On analysis of evidence, documents tendered, tenor of cross examination, it is established that Ritesh Devtale below 11 years was killed by strangulation. It was a homicidal death. PW 33 Dr. Ajit at Exh. 125 established injuries noticed by him. Post mortem notes are tendered at Exh. 146. The evidence of PW 8, PW 2 Raju Jadhav, PW 4 Viru Devtale, PW 5 Mogar, father of the deceased, PW 6 Suhas, establish that Ritesh was killed and it was a homicidal death. 22. The entire case revolves to the chain of circumstances coupled with evidence of approver PW 2 Raju Jadhav. He has met severe criticism from the learned defence counsel. KIDNAPPING OF RITESH FROM SCHOOL : 23. PW 9 Abasaheb Patil has identified accused no. 1 Yovel Gauri to be the person who under the pretext of leaving Ritesh carried him on bicycle with tiffin box and school bag. PW 16 had also seen accused Yovel Gauri carrying the deceased on 2.8.2002 at 5.30 p.m. He has accosted the accused Yovel Gauri as to how he was moving with Ritesh and in reply the accused informed him of dropping the boy to his residence. The witness was going for gymnasium at the ground of Bhau Talim and on the way he had stopped near Pan shop. Incidentally he met his friend Milind and saw accused Yovel Gauri on the bicycle with Ritesh. It is curious that he made inquiries even with Ritesh about his school performance and Ritesh replied that he was doing well. Since Ritesh was carried on bicycle, the accused Yovel Gauri 12 cri.appeal no.863-876 of 2004 replied that there was puncture to cycle to the rear side. The witness had travelled out of Meeraj to Pune and thereafter to Mumbai. He reached in the night of 7.8.2002 and learnt from his wife that on 2.8.2002 Ritesh was kidnapped for ransom. Then PW 16 rushed to police and narrated what he had seen near Pan shop. His statement was recorded on 7.8.2002. Thus the evidence of PW 16 is unblemished without adding any spice, recorded by the I.O. at the earliest when even the dead body of Ritesh was not found and investigator was in dark about the clue of suspects. It was this statement, which has prompted acceleration in the investigation as needle of suspicion turned to Yovel Gauri. This feature of Yovel Gauri with identical incident has been cemented by the evidence of PW 25 Dr. Gaikawad who had also raised suspicion by her application on 20.6.2002 (nearly 45 days earlier) against Yovel Gauri with apprehension of kidnapping her son. PW 16 had proved his journey by placing on record the travel tickets at Exh. 69 which are not at all controverted to its worth. The above narration congeal and cement the prosecution case that Ritesh was abducted and kidnapped from the school at 5.30 p.m. on 2.8.2002 by Yovel Gauri. 24. Though Ritesh after his removal from the school was carried and thereafter he was shifted in rickshaw of accused Balasaheb, PW 12 Shivaji incidentally saw all the accused with approver Raju with Ritesh in Auto rickshaw and he, in natural parlance made enquiry as to what had happened. Balasaheb hurriedly tried to discharge him under the pretext that the rickshaw suffered puncture and he need not bother. His statement was recorded belatedly on 18.8.2002. It is because, as explanation is offered in para 3 of his evidence that he has gone to pilgrimage of Shri Shailya in 13 cri.appeal no.863-876 of 2004 Andhra Pradesh as per pre-scheduled programme and returned from daity on 17.8.2002 and having learnt from his wife of Ritesh being kidnapped by unknown persons, he realised having seen accused with Ritesh, he rushed to police and informed having seen Yovel Gauri, Raju, Salim and Balasaheb and auto rickshaw driven by Balasaheb. It is curious, Balasaheb was arrested on 18.8.2002. Therefore, it cannot be said that the narration of PW 12 is false, projected and planned and artificially created to implicate accused Balasaheb. 25. The next evidence against all the accused is of PW 28 Altaf Shaikh who had heard yelling and cries of the boy emanating from Rakhmabai Chawl and had gone in the said direction. PW. 28 knows all the accused including approver. However, Ritesh was unknown to him. He knows Rakhmabai chawl belongs to Balasaheb. He knows the mother and sister of Balasaheb. The said premises of Rakhmabai Chawl is situated at the distance of 15 ft. from his residence. He had on 30.7.2002 seen Hirabai and Shila with their bags leaving the chawl and on being asked they replied to be proceeding for pilgrimage to return within a week. 26. In the night of 2.8.2002 while PW 28 was to go asleep he heard cries of the boy from Rakhmabai chawl and in particular from the residence of Hirabai and Shila. Consequently he went and knocked the door and his identification was questioned by Balasaheb. The door was opened. Balasaheb scrabbled, told that the boy in the room was his sister's son and boy was scolded for not drinking the milk. The witness had seen the boy screaming and insisting to be released. Boy was threatened by Balasaheb to keep quiet. 14 cri.appeal no.863-876 of 2004 27. The defence tried to create confusion about the residence of this witness by pointing that he had at one place stated to be residing near Sub Divisional Officer (Prant Office) and thereafter by changing version had stated to be residing near Rakhmabai chawl in the rented premises of Dastagir. Non disclosure of house number or non production of rent receipt will not by itself dilute the testimony of PW 28. The topography given even in the cross examination in para 8 indeed match to the sketch drawn by Architect PW 1. He had identified accused persons in the identification parade conducted by Tahsildar and informed S.E.O. having seen the accused including Raju in the morning at Rakhmabai chawl with Ritesh. The belated approach of the witness to police on 19.8.2002 is explained by him by stating the Balasaheb approached him on 12.8.2002 and threatened him not to communicate police and inform anything that he had seen in the room. It was in these circumstances, he was prevented by his wife to approach the police on 10.8.2002 even after he learnt of killing of Ritesh by reading the same in the newspaper and having realized that it was the same boy who was seen in the company of the accused in the said room. The narration of PW 28 need not be doubted to be an artificial articulated stitching of events to book Balasaheb. 28. PW 13 Mahavir resides in Miraj engaged in sale and purchase of plots. In the mid night of 5th August, 2002 he was returning after attending the transaction of plot while he was passing nearby Rakhmabai Chawl he noticed that accused, carrying loaded gunny bag while Yovel Gauri was following them with a school bag with him. Gunny bag was kept in