:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CONFIRMATION CASE NO.2 OF 2005 (Reference made by Sessions Judge, Daman, Diu and Dadra Nagar Haveli) The State of Maharashtra ...Appellant. (Original Complainant) V/s Anil alias Raju Namdeo Patil ...Respondent. (Original Accused) ---- Smt. Usha Kejriwal, A.P.P. for the appellant - State. Shri C.M. Kothari for the respondent. ---- ALONG WITH CRIMINAL APPEAL NO. 182 OF 2005 Anil alias Raju Namdeo Patil ...Appellant (Original Accused) V/s (1) Administration of Daman and Diu, Daman (2) The State of Maharashtra ...Respondents. (Original Complainants) --- Shri C.M. Kothari for the appellant. Shri Girish R. Agrawal for respondent No.1. Smt. Usha Kejriwal, APP for the respondent No.2. --- CORAM: D.G. DESHPANDE & V.M. KANADE, JJ. DATE : 29TH NOVEMBER, 2005 JUDGMENT: (Per V.M. Kanade, J.) 1. Confirmation Case No.2 of 2005 has been referred by the Sessions Judge, Daman at Silvassa to this Court for confirmation of the death sentence which was :2: passed in Sessions Case No.6 of 2000 against the accused Anil alias Raju Namdeo Patil. The accused Raju has filed criminal appeal No.182 of 2005 challenging the judgment and order passed by the Sessions Judge in Sessions Case No. 6 of 2000. The accused is convicted for an offence punishable under section 364-A of the Indian Penal Code and sentenced to death for having committed the said offence. He is further convicted for the offence punishable under section 201 of the Indian Penal Code and sentenced to suffer five years’ rigorous imprisonment and to pay fine of Rs 2000/- and in default to suffer rigorous imprisonment for one year. The under trial detention period of the accused from 07/08/2000 till 03/02/2005 was directed to be set off while computing the sentence for the offence under section 201 of the Indian Penal Code. 2. Initially, Shri M.K. Kocharekar, advocate was appointed from the amicus curaie panel, since the appellant was unable to engage an advocate. Thereafter Shri C.N. Kothari, Advocate filed his vakalatnama on behalf of the accused. 3. The facts in the present case disclose sordid tale of commission of an offence most foul and reveals the :3: extent to which a humanbeing can stoop to satisfy his greed to procure money. The gruesome nature of the crime and the diabolical manner in which it is executed poses a question, whether the author of such crime can ever be reformed and if death penalty is given in such a case, whether it would be justified irrespective of the fact whether it acts as deterrent or not. 4. Paras, a young boy of five years of age residing with his parents Smt Alpa and Shri Ashwin Shah at Udwada, went to his Coast Guard School on the morning of the 3/8/2000 alongwith his school bag, water bottle and tiffin. However, he did not return back. His father and his driver made frantic efforts to search him while going back to the School at about 2.30 P.M. which was the normal time when the school bus by which he travelled home used to drop him at a particular place near his house. In spite of desperate and frantic efforts made by his father in inquiring with the school bus driver, school teachers and other children who normally travel in the bus, there was no clue about the whereabout of Paras. A missing complaint was lodged at Daman Police Station which was routinely noted down by the Police without even demanding the photograph of the missing child. While, :4: the father of Paras who is a young entrepreneur and the owner of a factory which is situated in Daman was busy trying to locate his missing child, his mother was waiting in their house in the midst of ladies who had come from the neighbourhood to inquire about the missing child. At around 6.15 P.M. in the evening there was a phone call which was attended to by Alpa wife of Ashwin. Within a minute after she picked up the phone and listening to the person who was calling, she started weeping at which point their neighbour Khimjibhai picked up the phone and a person who spoke in Hindi told him that the boy was in their custody and a demand of Rs 25 lakhs was made as ransom amount for returning the child safely. Before any further inquiries could be made, the caller disconnected the call. Soon thereafter, Ashwin came home and he was informed about the phone call. On receiving this information, Ashwin went to the Police Station and lodged a complaint. Initially, the investigation was made by Sub-Inspector Rocha and, thereafter, the investigation was transferred to CPI Mr. Rosario. 5. During the course of investigation again few calls were received in the next two days and caller informed the parents of Paras to bring the ransom amount near Ankleshwar at a particular place in their Armada Car :5: and further instructions were given that only two persons should be there in the car and that no complaint should be filed with the police. The caller further informed them that a person would contact them and give them a code word "tambaku" and money should be handed over to the said person and within half an hour the boy would be returned safely to his parents. Accordingly, the police, on receiving this information, arranged a trap. Two persons went to Ankleshwar. However, nobody turned up to claim the ransom amount. Thereafter, Inspector Rosario inquired with Ashwin whether his present or past employees resided at Ankleshwar and, at that time, name of the person accused Raju was disclosed by Ashwin. Raju was arrested and his personal search was taken and his personal diary was seized. He, thereafter, disclosed his intention to show where the body of Paras was disposed of. Accordingly, in the presence of panchas, Raju took the police party along with panchas to an isolated place near a nalla and showed them the place where the body of Paras was thrown after it was burnt. The pieces of bones of the skull, lower jaw and other bones were seized in the presence of panchas after they were shown by accused Raju. After recovery of the remnants of the bones of Paras at the instance of the accused was made by Inspector Rosario, thereafter, :6: inquest panchanama was made. On 08/08/2000, the police again visited the spot along with the panchas and spot panchanama was made and further articles were found at the spot which were also seized under the panchanama viz. polythene sheet, a pair of black shoes, burnt pieces of cardboard and burnt pieces of clothes and other articles were seized in the presence of panchas. In the meantime, one Jagdish who was the Manager of the factory was also arrested and the police remand was taken of both the accused. A letter was written to the Medical Officer to give his opinion regarding the bones which were recovered from the scene of offence and the Medical Officer gave his opinion on 09/08/2000 that the bones tallied with the age of the deceased. He, however, opined that it was essential to have DNA test for establishing the identity of the victim. Accordingly the bones were sent to the DNA Finger Printing Laboratory at Hyderabad. The blood samples of both the parents were taken on 11/08/2000 and both these samples were sent for DNA analysis to Hyderabad. 6. During interrogation of Raju, it transpired that one Chhotu had used one DCM Toyota of his employer Chandrakant Dayabhai Patel for kidnapping Paras and the :7: involvement of Satish was disclosed. Accordingly, the police went to village Vavda in Taluka Amalner, District Jalgaon where further investigation was made and the statements of the relatives of two other persons Chhotu and Satish was recorded. During this time, Mr. Rosario received an information that the said Satish and Chhotu had committed suicide in a lodge at Sindkheda in District Dhule by consuming poison. They were taken to the hospital and at the time when they were admitted in the hospital Chhotu @ Dharamraj was alive. He died in the hospital after about half an hour after he was admitted and the other accused Satish was already dead. Their bodies were searched in the presence of panchas and one suicide note was found in the pocket of Satish. 7. Further investigation was made in respect of the owners of the two STD Booths from where the telephone calls were made. Register and the STD Rolls were attached 8. On 15/08/2000, custody of Raju was handed over to to judicial custody and, thereafter, on the next date i.e. on 16/08/2000, a request was made to the Chief Judicial Magistrate, Daman, for recording the confessional statement of the accused. Accordingly, :8: the confessional statement of the accused was recorded on 17/08/2000 and 18/08/2000. The Magistrate informed the accused of his rights and consequences of his confession and further questioned him whether he was making confession on duress or on inducement given by the police and the questions put by the Magistrate and the answers given by the accused were recorded personally by the Magistrate. Thereafter, 24 hours time was given to the accused to consider whether he still wanted to make a confession. Thereafter, on 18/08/2000, the confessional statement of the accused was recorded, who admitted having kidnapped Paras for the purpose of demanding ransom but stated that Paras was murdered by Chhotu @ Dharamraj and Satish. 9. Thereafter, the sketch of the scene of offence was prepared. The suicide note and the other specimen documents in the handwriting of Satish were sent to the Government Examiner for opinion to Hyderabad. On 27/ 10/2000, DNA report was received and the expert gave his opinion that from the examination and analysis of the bones and the blood samples, according to him, they were biologically related. Thereafter, charge-sheet was filed on 01/11/2000 and after the report of the hand-writing expert was received on 07/11/2000 and remnants were received from DNA :9: Laboratory Hyderabad on 24/11/2000, both these documents, were sent to the Court. 10. An application was made for deleting the name of Jagdish as an accused. The application was allowed. The charge was framed against the accused, who pleaded not guilty to the said charge. The prosecution examined 41 witnesses and also brought on record the documentary evidence. The accused did not examine himself or any other witness. The trial court, after perusing the evidence of the prosecution convicted the accused for the offence punishable under section 364-A and gave death sentence for having committed the said offence and, further, convicted him for an offence punishable under section 201 IPC for causing disappearance of the evidence and awarded five years’ rigorous imprisonment for the said offence. 11. The trial court held that Paras had met with homicidal death after taking into consideration the recovery of the bones from the field which was done at the instance of the accused and from the report of the doctor and the DNA Finger Printing opinion given by the expert who had conducted the said analysis on the basis of the bones which were recovered and the blood samples which were given by the parents of Paras and, :10: further, from the articles and the burnt clothes which were recovered from the scene of offence and which were identified by the parents of the child. On the basis of this evidence and the fact that child was missing from the school, the trial court held that Paras had met with homicidal death. The trial court further relied on various circumstances such as recovery of bones of Paras and the articles of accused, confession made by the accused before the Magistrate, recovery of telephone diary of the accused, phone calls which were made by the accused from the STD Booth and the motive to extract ransom. On the basis of these circumstances, the trail court came to the conclusion that the prosecution has proved beyond reasonable doubt that the accused had committed the said offence of kidnapping and murder of Paras and, accordingly, sentenced the accused to be hanged by the neck till his death and, further, the sentence of five years for the offence punishable under section 201 and in view of the mandate given by section 366 of the Criminal Procedure Code sent the matter along with the proceedings for confirmation. 12. We have heard Shri Kothari the learned counsel appearing on behalf of the accused Shri Girish Agrawal learned Counsel, appearing on behalf the :11: Administration of Daman & Diu and the State of Maharashtra at length. We have given our anxious consideration to the submissions made on facts and the legal issues by both the respective counsel. Both the counsel have taken us through the judgment and order of the trial court as also the oral and documentary evidence adduced by the prosecution. 13. Chapter XXVIII of the Criminal Procedure Code lays down the procedure regarding submission on death sentence for confirmation. Perusal of sections 366 to 370 indicate that they have been incorporated to ensure that the entire oral and documentary evidence is placed before the High Court so as to ensure that before any final order is passed on the question of guilt or innocence of the accused, all this evidence is minutely scrutinized by the High Court with utmost care and caution. The intention of the Legislature is obvious that the offences where Sessions Court feels that the accused must be sentenced to death, such cases are scrutinized by the High Court afresh, after going through the oral and documentary evidence and independent findings are recorded on each and every aspect of the case so that the chances of the life of an innocent man being taken away or the man who has committed a heinous crime is not allowed to go away :12: scot-free are reduced. 14. The submissions made by the learned counsel appearing on behalf of the accused and the learned counsel appearing on behalf of the State are summarised briefly and these submissions shall, thereafter, be considered by us at the appropriate stage and our findings on the said submissions and on the evidence which is there on record, after considering the legal position, shall be dealt with at an appropriate place. SUBMISSIONS: SUBMISSIONS: SUBMISSIONS: 15. The submissions, in brief, which are made by the learned counsel appearing on behalf of the appellants are as under:- 16. The learned Counsel appearing on behalf of the appellant has seriously attacked the manner and the method in which the investigation has been carried out by the Investigating Agency and it is submitted that the genesis of the crime has not surfaced due to the faulty investigation which has been made by the prosecution and, therefore, the accused is liable to be acquitted on that ground alone. Shri Kothari then :13: submitted that in a case which is based on unsatisfactory evidence, if there is a missing link in the chain of circumstances then the immediate result of this missing link would be that the chain would be incomplete and the benefit of that would go to the accused. He submitted that there were many missing links in the chain of circumstances in the present case and, therefore, the accused was liable to be acquitted. Shri Kothari, thereafter, strenuously urged before us that the confessions which was recorded by the Judicial Magistrate would not be relied upon as adequate safeguards have not been taken by the Judicial Magistrate as required under section 164 of the Criminal Procedure Code and as per guidelines laid down by the Apex Court and this Court while recording such confessional statement. He, therefore, submitted that this confessional statement has to be discarded in its entirety. He, thereafter, submitted that the suicide note had been rightly rejected by the trial court. He submitted that the said note even otherwise was not admissible under section 32 of the Evidence Act. He further submitted that the recovery of the bones from the scene of offence and of the articles at the instance of the accused could not be relied upon as the police were already aware of the said site and, therefore, the :14: recovery would not fall within the purview of section 27 of the said Act. He further submitted that no identification parade has been held of the accused in order to establish that he had kidnapped Paras from the School. He further submitted that the opinion given by DNA Expert could not be relied upon due to number of lacunae which were evident from the manner in which the test was done by him. He further submitted that the blood samples of the parents of the child had not been sealed before taking them to the DNA Test Laboratory. He submitted that the Investigating Officer had implicated the accused falsely in order to protect Jagdish whose name was deleted from the list of the accused. In support of the said submissions he relied on judgments which will be considered at the appropriate place. 17. The submissions, in brief, which are made by the learned Counsel appearing on behalf of the respondents are as under:- 18. The learned Counsel appearing on behalf of the respondents, on the other hand, submitted that the prosecution has proved beyond the reasonable doubt all the circumstances which clearly and unerringly pointed to the guilt of the accused. He submitted that the :15: accused was the past employee of the parents of the child Paras. He bore a grudge against his ex-employee and after removal from service, he had planned kidnapping of the child alongwith his friends for securing ransom amount. Accordingly, they had kidnapped the child and he was killed on the same day and even though they knew that the child was dead, ransom amount was demanded by posing that the child was safe and could be returned if the ransom amount was paid. The recovery of the bones of the child at the instance of the accused, the opinion given by the expert establishing that the bones belonged to the deceased Paras alongwith the confessional statement of the accused and the suicide note of the two other conspirators clearly establish that the accused had committed the said offence. He relied upon number of judgments which would be considered later on. 19. In order to prove its case, the prosecution has examined as many as 41 witnesses and it also further relied on the documentary evidence which was produced by the witnesses. 20. The prosecution has relied upon the following circumstances. :16: (1) Missing child. (2) Ransom demand (3) Police Complaint (4) Arrest of Raju (5) Seizure of diary (6) Seizure of Raju’s licence from deceased accused’s Chhotu’s house. (7) Recovery of bones of child, at the instance of the accused. (8) Other articles belonging to Paras found at the scene of offence i.e. burnt clothes, shoes. (9) Other co-accused committed suicide and leave a suicide note claiming responsibility for committing the offence, blame accused Raju for the murder of Paras. (10) Post-mortem of deceased co-accused confirms that the cause of death was due to consumption of poison. (11) The Accused Raju makes a confessional statement admitting that he had kidnapped the child, but blaming the other co-accused for the murder of the child, admits disposal of dead body. :17: (12) DNA Finger Printing Report confirms that the bones recovered match the DNA of complainant Ashwin and his wife Alpa. (13) Dr. Chand who performed post-mortem on the bones opines that they belong to a male child of five years of age. (14) Handwriting expert gives opinion that the author of the suicide note was deceased co-accused Satish. (15) Statement of STD booth owners that telephone calls demanding ransom made’ from their booth. (16) Extra judicial confession of accused. (17) Motive. 21. In a case where the evidence is of circumstantial nature, while appreciating such evidence it is the duty of the court to be aware of the rules which have to be applied. 22. The Supreme Court in the case of Hanuman Govind Nargundkar and another vs. State of MP reported in AIR AIR AIR 1952 SC 343 1952 SC 343 1952 SC 343 has observed in para 10 of its judgement as under:- :18: "10. ...................................... "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far :19: complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused".............." 23. The law on the circumstantial evidence has been summarised in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 AIR 1984 SC 1622 AIR 1984 SC 1622 in paras 150, 151 and 152 which read as under:- "150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in :20: the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. 151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091 : (AIR 1952 SC 343). This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal vs. State of Maharashtra, AIR 1972 SC 656. It may be useful to extract what Mahajan J. has laid down in Hanumant’s case (at pp. 435-46 of AIR) (supra): . "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first :21: instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should