1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 240 OF 2000 Rajesh Suryakant Dhaka ...Appellant Age 21 years, Residing at (Org. Accused No.2) Flat No.30, 3rd floor, 'C' Building, Damodar Bhavan, Station Road, Vile Parle (West), Mumbai- 400 056. At present imprisoned at District Prison, Yerwada, Pune. Vs. 1. The State of Maharashtra At the instance of Juhu Police Station, C.R.No.277 of 1992) 2. Bhishma @ Akki S/o. Niranjan Shah 201- 202, Vandana Apartments, Juhu, Bombay. ...Respondents Mr.Mundargi for the Appellant in Cr. Appeal No.240 of 2000 Mrs. Kejriwal, A.P.P for the State. AND CRIMINAL APPEAL NO.241 OF 2000 Manish Suryakant Dhaka ...Appellant Age 26 years, Residing at (Org. Accused No.1) Flat No.30, 3rd floor, 'C' Building, Damodar Bhavan, Station Road, Vile Parle (West), Mumbai- 400 056. At present imprisoned at District Prison, 2 Yerwada, Pune. Vs. 1. The State of Maharashtra At the instance of Juhu Police Station, C.R.No.277 of 1992) 2. Bhishma @ Akki S/o. Niranjan Shah 201- 202, Vandana Apartments, Juhu, Bombay. ...Respondents Accused in person (at his request) in Cr. Appeal No.241 of 2000 Mrs. Kejriwal, A.P.P for the State. CORAM: SHRI J.N.PATEL & SMT. ROSHAN DALVI, JJ. DATED: 28TH AUGUST, 2006 JUDGMENT (PER SMT. ROSHAN DALVI, J.) 1. The accused, in the above appeals, are brothers. They have been charged, convicted and sentenced for having committed various distinct offences in conspiracy with one another and with common intention over a period of time. 2. They are charged with having secured a flat in a posh locality in Bombay between 4th May, 1992 and 10 th August, 1992, by preparing forged documents and using them as genuine, to induce the owner of the flat to deliver possession of the flat to them and having cheated another owner to 3 obtain possession of another flat at another place. 3. They are also charged with having kidnapped and abducted the victim child Vatsal Niranjan Shah @ Kukky aged about 8 years and having wrongfully confined and murdered the said victim child and having caused disappearance of evidence. 4. They are further charged with having committed extortion on separate and distinct dates being 13.7.1992, 25.7.1992, 30.7.1992, 1.8.1992, 2.8.1992, 3.8.1992, 4.8.1992, 7.8.1992, 9.8.1992 and 10.8.1992 by demanding ransom from the relatives of the victim child after intimidating them and attempting to put them in fear of death of the victim child. The prosecution case is in several parts : (a) The accused, obtained a flat being Flat No.702 in Vandana Apartments at Juhu, Bombay, the building in which the victim child lived along with his relatives, on the 2nd floor and having 2 more vacant flats on the 3rd floor. To secure the said flat the accused contacted certain Estate Agents and brokers who purportedly contacted the owner of 4 the flat who demanded their identification and photograph, required them to execute certain agreement and affidavit and get the same notarised and for which purpose the accused got printed certain letter- heads and visiting cards showing that they were Hoteliers conducting the hotel business in Gujarat under assumed names of Bharat and Ram Sahy. (b) After having secured the said flat, the accused on 13 th July, 1992 kidnapped/abducted the victim child Vatsal @ Kukky when he returned from his school. After confining the said child in their flat No.702 they made telephone calls to the grand- mother of the child and instructed her to see a parcel (which contained a stencilled ransom note, photographs of the child and his school articles) which they left near their 3rd floor flats after which they absconded with the child. ( c ) Thereafter they made various phone- calls from time to time threatening the relatives of the child with dire consequences for the child and giving detailed instructions of how much and how the ransom has to be paid to them by another stencilled ransom note. 5 (d) In the mean time the accused murdered the said child by smothering the child and administering an overdose of chloroform and caused disappearance of the dead- body of the child by taking another flat in Mathadi Workers Colony in Kandivali (East) on leave and license basis in another assumed name of Rajesh/Rakesh Shah and burying the child below the kitchen platform (Otla) after purchasing various building materials and other allied articles for that purpose. (e) Upon having traced the telephone calls made by the accused to the relatives of the victim child, the accused came to be arrested near the Kandivli telephone exchange outside one telephone booth on 10 th August, 1992 and after which a search and seizure panchanama was prepared which yielded recovery of various incriminating articles. (f) Thereafter at the instance of the accused the dead- body of the child as well as various other incriminating documents came to be recovered from the flat at Kandivli. The dead body of the child was sent for Post Mortem as well as superimposition test 6 of his skull for his perfect identification. (g) At the instance of the accused the prosecution recovered further documents showing that the accused were residents of Dubai, who had come to India only recently and lived in various hotels in Gujarat and Mumbai after their arrival in India. (h) It is upon collecting the evidence showing the exercise undertaken by the accused to obtain the flat in the building where the victim child lived, another flat licensed in a Mathadi Workers Colony and from the recovery of articles connecting the ransom note and the other documents of the accused, that the prosecution obtained the specimen handwriting of both the accused and sent various documents to the Handwriting Expert for comparison and for obtaining his opinion thereon. 5. The fact that the accused lived in Dubai for many years since their childhood for many years and until a couple of months prior to the incident is admitted. A number of documents recovered from the accused including their Passports Exhibit- 79 and 80 bare out that fact. The fact that they came to India only in May, 1992 is also admitted. 7 The accused have given their justification for their departure from Dubai and arrival in Mumbai after many years. They have stated that because their father gave financial assistance to their cousin, which their mother disapproved of, there were several quarrels between their parents which prompted them to break away, so they left their home to take a holiday in India. They arrived in Mumbai on 3rd May, 1992. They went for pilgrimage to various places in Rajasthan via Ahmedabad and Abu. The prosecution has collected documents of some of the hotels in which they lived, at certain places in Gujarat and Rajasthan in May, 1992. 6. The accused had their family residence at C-30 Damodar Bhawan, Near Vile Parle Railway Station, Mumbai . A neighbor and a family friend examined by the prosecution saw the accused in the said flat. His evidence has not been challenged by the accused. The evidence of the family friend shows that because the accused were not traceable by his father in Dubai, his father had requested the said family friend to ascertain whether the accused were in Mumbai. The family friend had visited the family flat of the accused, enquired of the accused, and the accused had told him that they would contact their father. 8 7. It is therefore clear upon the admission of the accused that their parents were not informed about the holiday that both the accused desired to take in India. 8. It is upon such admitted position that the acts of the accused alleged by the prosecution would be required to be seen upon the evidence produced by the prosecution. 9. The case of the accused is largely of denial simiplicitor aside from the above position. 10. It is for the prosecution to show if and how the accused came to acquire a flat in the same building where the victim child lived. To further see any illegal acts committed by the accused, the prosecution has sought to show the procuration of the flat in Vandana Apartments, the building where the victim child lived through the evidence of as many as 14 witnesses. 11. The P.W.No.1 and 2 are the brokers and Estate Agents, who introduced the accused no.1 with the owner of the flat. P.W.27, the owner of the flat No.702 in Vandana Apartments, Juhu, Mumbai, insisted upon accused no.1 furnishing his identification since he was unimpressed by the financial capability of the accused to license his flat. He 9 was shown certain letters on certain letter- heads showing the accused as hoteliers from Gujarat named Ram & Bharat Sahy. The letter- heads were printed by P.W.36 and P.W.9 and on one of which P.W.8 typed the contents. 12. The owner of the flat P.W.27, not being satisfied with the credentials of the accused no.1, who had contacted the owner through the brokers, required him to make a notarised affidavit containing his photograph on a stamp paper aside from executing an agreement and insisting upon a guarantee letter to be given by a Broker. The accused no.1 therefore, got himself photographed at the studio of P.W.39, the photographer. Upon preparation of his affidavit containing his photograph accused no.1 was to contact P.W. 4 the Commercial Manager of the owner P.W.27. He executed the affidavit as required by the owner in the assumed name of Ram Sahy which was given to and produced by P.W.4 in evidence as Exhibit- 17. Accused no.1 was identified by an Advocate P.W.14, who drafted the affidavit on his instructions and got it notorised from P.W.6 to whom accused no.1 was introduced by the said Advocate and before whom the accused No.1 signed as Ram Sahy. 13. The accused no.1 was required to pay Rs.3,00,000 as the deposit for the said flat to be taken on leave and license 10 upon the execution of the leave and license agreement and to pay a license fee of Rs.35,000/- per month. The owner P.W.27 whom accused no.1 met, introduced by P.W.1 and 2, refused to accept cash and insisted on being given the deposit amount by Demand Draft. 14. The accused no.1 obtained the demand draft from Tamilnad Mercantile Co-operative Bank Ltd to whose Manager P.W.38, he was introduced by one Dharmendra Karia P.W.29. He obtained 7 demand drafts in various names for payment of the deposit amount to the owner of the flat, which were produced by the Manager of the issuing Bank P.W.-38 as Exhibit 68 colly. 15. Upon having undertaken the exercise demanded by the owner of flat No.702 in Vandana Apartments, the owner executed the Leave and License Agreement Exhibit 15 with Accused No.1 as Ram Sahy. Both the accused secured possession of the said flat and started to occupy the flat. They were seen by the lift-man of the building P.W.3 whilst they were coming from and going to the flat. They were also seen by P.W.26, the maid of the adjoining flat No.701 since on a given day she had lost the keys of the flat where she served as maid and hence enquired in the adjoining flat No.702 whether they had seen the same. It was then that 11 she saw the accused in flat No.702. 16. It can therefore, be seen that the evidence of the aforesaid witnesses would show the initial aspect of the prosecution case in which the accused are stated to have set the stage for the kidnap and murder of the victim boy which was to follow. 17. It must be remembered that this was in 1992 at the height of the Securities Scam in which interalia one Harshad Mehta was involved. The family of the victim boy is stated to be known to or distantly related with the said broker concerned in the said scam. Their house was raided by the Tax Authorities at around the same time. The accused are businessmen, well settled and admittedly hailing from a prosperous family in Dubai, his father having migrated there as a businessman and the accused having been born there. The accused would know the current financial news in India and can be imputed such knowledge. It is in this scenario that, as per the prosecution case, the accused together came to Mumbai and after their initial pilgrimage/holidays in Rajasthan and Gujarat set about to laying a foundation for the illegal acts to follow. License of Flat No.702 in Vandana Apartments, 12 Juhu, Mumbai. 18. The evidence of P.W.1 and 2 shows that accused no.1 who represented himself as Ram Sahy was introduced to the owner of the flat 702. They have shown various meetings held for the transaction to go through including one to take him to a photographer. They have identified accused no.1 as Ram Sahy in Court. P.W.1 produced a letter dated 25th June, 1992 from Ram Sahy to one Jayant Pardhanani Exhibit 14 in which accused no.1, who signed as Ram Sahy on is stated to have mentioned that he had paid all the amounts to the owner of the flat and had taken possession for 11 months and indemnified Jayant Pardhanani against any damage thereto and assured that he would not carry out any illegal activities in the said flat while he stayed there during the period of license. 19. The evidence of P.W.4, the Commercial Manager of the owner shows how he got executed the requirements of his master for licensing the said flat to the accused no.1. It further shows the inspection that accused no.1 took of the flat to agree to the various terms and conditions required by the owner. He was sent with P.W.2 to the photographer as insisted upon by the owner. 13 20. The deposition of P.W.2 shows the visit to the photographer along with accused no.1. He was also told to notarise the affidavit to be prepared bearing the said photograph. The evidence of P.W.2 also shows how he had accompanied the accused with the said Jayant Pardhanani to Bandra Court for making the affidavit through the Advocate P.W.14 and then having it notarised through the Notory P.W.6 on 25th June, 1992. 21. The evidence of P.W.2 and 4 is corroborated by P.W.14, the Advocate and P.W.6, the Notary who have detailed how instructions were given for the preparation of the affidavit by accused no.1 and how he was introduced to the Notary by P.W.14. The evidence of P.W.4 shows how after preparation of the documents to the satisfaction of the owner the consideration was paid by the accused no.1 to the owner, again following the specific mandate from the owner. 22. The evidence of P.W.39, the photographer shows that one regular customer by name Pawan (P.W.1) had brought 3 other persons to him in June, 1992 one of whom was accused no.1, to whom he had delivered a polaroid instant photograph. His deposition shows that he had been shown the said photograph later by the police. He identified the accused in Court as the same person albeit one wearing 14 spectacles as appeared in the photograph whilst he was brought to his shop by his regular customer Pawan (P.W.1). 23. The evidence of P.W.29 shows how at the instance of the said Jayant Pardhanani, who had brought interalia accused no.1 to him, he introduced the accused no.1 to the Manager of The Tamilnad Mercantile Bank Limited with whom his company had banking transactions, and hence, was known to the Manager. His evidence shows how he was introduced to the accused no.1 whom he introduced to the Bank Manager to obtain the Bank drafts for the payment of the deposit amount to the owner of the flat No.702. He not only identified the accused no.1 but described him as he was at the time of the transaction, complete with the spectacles. 24. The evidence of P.W.38, the Manager of the Bank of Tamilnad Mercantile Co-op. Bank Ltd shows how 7 demand drafts were issued in various names. He produced Exhibit 68 being the original demand drafts from the records of the bank along with the applications for the issuance of the demand drafts made in different names on the same day. These demand drafts have also been sent to the Handwriting Expert for his opinion and comparison of the handwriting with the specimen handwriting of the accused no.1. 15 25. The evidence of P.W.9, the printer owning Bharat Printing Press at Malad (E) shows that his accused No.1 got printed visiting cards and letter- heads in his press in English and Gujarati languages. The letter Exhibit- 22 has been identified by that witness as having been printed by him. P.W.8 the Typist has typed the contents of the letter- heads which came to be signed by one Bharat Sahy, whom accused no.2 represented to be. The letter- head shows a restaurant in Gujarat run in the name of “Sahy’s” . It is signed by Bharat Sahy stating that he and his brother Ram Sahy desire to rent the flat of the addressee in Vandana Apartments. 26. Certain further blank letter- heads of the same print Exhibit- 64 colly having been recovered by the police, have been identified by P.W.9 as having been printed by him. 27. P.W.27, the owner of flat No.702 has identified the said letter and deposed about how the credentials of the accused were sought to be shown to him, to which he remained dissatisfied for letting out his flat. He, therefore, insisted upon a stamped, notorised affidavit with the photograph of the proposed Licensee, and the deposit amount by demand drafts or cheques aside from the execution of the Leave and License Agreement and the Guarantee Letter of the broker. 16 28. The evidence of P.W.26 the maid servant and P.W.3 the liftman show how the two accused upon obtaining the flat started occupying it. The evidence of the P.W.3 shows that they were two persons residing in flat no.702 who were coming and going by lift. He did not see those persons after the news of the missing of the child was made known. He could remember them by face and had seen them only coming and going in the lift through the gate of the building. His evidence further shows his knowledge that flat no.701 was closed as the resident had gone somewhere. His evidence, therefore, shows his knowledge of the occupants of the building. The accused nos.1 and 2 have been shown to be occupants from 25 th June, 1992 when they licensed the flat until 13 th July, 1992 when the victim boy was kidnapped and the accused left the flat. 29. Such oral and documentary evidence together shows the role played by the two brothers in perpetuating the first of their fabrications. It was the first step towards the offences they were due to commit in the forthcoming days. 30. The exercise of the accused in impersonating themselves and fabricating documents is evident from the documents Exhibits 14,15, 17 and 22 prepared right from the pre- incident period. 17 31. The evidence of each of the aforesaid witnesses is corroborating one another. It is so inextricably interlinked with one another as to appear repeatedly with regard to the material facts relating to the transaction that took place over a period of days for licensing the said flat by the accused. 32. Each of these witnesses have attended and identified the accused at a Test Identification Parade (TIP) held during the investigation. However, the identification is fraught with certain errors and anomalies. It is, therefore, prudent to disregard the entire Test Identification Parade all together. 33. Each of these witnesses have identified the accused in Court and the evidence of each of them is credible enough to require acceptance of their identification of the accused for the first time in Court. 34. The documents Exhibits 14,15,17, 22, 64 and 68, have all been sent to the handwriting expert P.W.51 for comparison with the admitted handwriting of the accused and opined to be written by accused no.1. The blank letter heads are opined to be of the same material as the letter Exhibit- 22. The applications for Demand Drafts are not opined to be in the handwriting of any of the accused. 18 35. The case of the accused with regard to this entire evidence is one of denial. They deny impersonating in the name of Ram Sahy and Bharat Sahy, or showing that they were in hotel business in Gujarat or of meeting any of these witnesses for licensing a flat No.702 in Vandana Apartment. The accused claim that they have their own flat No.30 in Damodar Bhavan near Vile Parle Railway station and hence had no need to license any other flat. Consequently the entire cross examination of these witnesses and the case put to them centers around only showing minor and irrelevant omissions and contradictions and the case of denial simplicitor. 36. From the untiring efforts of the prosecution to examine a number of witnesses, most of whom, are relevant witnesses, to bring home the varied acts of the accused, the climax of this case is reached in the perseverance of the trial court in examining three witnesses as Court witnesses which give a complete lie to the case of denial of the accused. This relates to licensing of the flat in 702, Vandana Apartments from the owner PW 27. 37. CW1 is the Advocate who acted on the instructions of the mother of the accused D.W.1, after the date of the 19 incident to send a notice by registered post A.D to PW 27, marked Exhibit A. The notice Exhibit A refers to her sons Rajesh and Manish accused nos. 2 and 1 respectively, giving a deposit of Rs.3,00,000 /- in June 1992 for the flat owned by the addressee of the notice. It mentions that the client of the advocate under whose instructions the notice is sent, Mrs K.S.Dhaka (the mother of the accused), requested the addressee to return the amount of Rs.3 lakhs after deducting the compensation for the month of June 1992 upon her return to Mumbai in June 1992 (and not in August 1992 as is the case of the accused). It alleges that the addressee was withholding the same without any valid reason and called upon him to return the amount immediately. 38. CW 2 is the Advocate who represented both the accused in the Metropolitan Magistrate Court at Andheri under their Vakalatnama for return of the deposit amount upon settlement between the parties to remove the lock and to hand over possession of the flat to its owner. This evidence shows that the owner wanted return of his flat upon removal of the lock put by the police thereon and the accused demanded return of the amount of deposit paid by them less the amount payable by way of monthly compensation and other expenses. His evidence further shows that the accused received a sum of Rs.1,00,000 /- 20 from the owner PW 27 for flat no. 702 in Vandana Apartments. 39. Exhibit B is a xerox copy of the receipt dated 6th November 1992 in favour of ”Ram Sahy (Manish) “ (the assumed name and real name of accused no.1 who was then in the custody of Juhu police station who was the respondent in that application). It shows receipt of cheque no.124984 dated 6th November, 1992 for Rs.1,00,000 /- in full and final settlement for flat no. 702 on the 7th floor at Vandana Apts. The receipt is signed by “Ram Sahy (Manish)”. 40. Exhibit- C shows application of PW 27. It inter alia states that he owned the said flat No.702 and that one Ram Sahy (Manish) entered into a Leave and License Agreement with him on 26 th June 1992 when he agreed to give his well furnished flat for 11 months on leave and license basis to him. Subsequently, he learnt that the