1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 959 OF 2005 ASHOK BADRI PRASAD JAISWAL residing at Village: Deohara ) Post Jodwebar Maharajganj, ) Tahsil : Jiyanpur,Dist. Azamgarh ) Uttar Pradesh ) (Now at Thane Central Jail) ) .. APPELLANT Versus State of Maharashtra ) Through Inspector of Police ) Vartaknagar Police Station, ) Thane (W) 400 604 ) .. RESPONDENT Mr. Y. M. Chaudhari for the appellant Mr. V. B. Konde Deshmukh, APP WITH 2 CRIMINAL APPEAL NO. 627 OF 2008 SUNIL HARDEV JAISWAL ) Kolhapur Central Prison, Kalamba) Kolhapur. ) .. APPELLANT VERSUS THE STATE OF MAHARASHTRA ) Through Superintendent ) Kolhapur Central Prison, Kalamba) Kolhapur. ) .. RESPONDENT Mrs.V. R. Raje for the appellant Mr. V. B. Konde Deshmukh, APP CORAM: SMT. RANJANA DESAI & R. G. KETKAR, JJ. DATE ON WHICH THE JUDGMENT RESERVED: 30TH JUNE, 2009 DATE ON WHICH THE JUDGMENT PRONOUNCED: 14th AUGUST, 2009 3 JUDGMENT: (Per Smt. Ranjana Desai, J.) Appellant in Criminal Appeal No. 959 of 2005 is original accused 5. Appellant in Criminal Appeal No. 627 of 2008 is original accused 1. Both of them were tried by the II Adhoc Additional Sessions Judge, Thane in Sessions Case No. 129 of 2004 and Sessions Case No. 289 of 2004 along with three others i.e. original accused 2, 3 and 4. The appellants were tried for the offences punishable under Sections 364, 384, 302,201 read with Section 34 of the Indian Penal Code (“I.P.C.” for short). Original accused 2,3 and 4 were tried for the offence punishable under Section 212 read with Section 34 of the I.P.C. For the sake of convenience, we shall refer to the accused as per their description in the trial court. 2. By the impugned judgment and order dated 8/7/05 learned Sessions Judge convicted accused 1 and accused 5 for the offence punishable under Section 364 read with Section 34 of the I.P.C. and sentenced each of them to suffer R.I. for five years and to pay a fine of Rs.1,000/- each and in default to suffer S. I. for four months each. Accused 1 and 5 were also found guilty of the offence punishable under Section 384 read with Section 34 of the I.P.C. For the said offence each of them was sentenced to suffer R.I. for three years and 4 to pay a fine of Rs.1,000/- each and in default to suffer S.I. for four months each. Accused 1 and 5 were also found guilty of the offence punishable under Section 302 read with Section 34 of the I.P.C. Each of them was sentenced to suffer R.I. for life and to pay fine of Rs.1000/- each and in default to suffer S.I. for four months each. They were also convicted of the offence punishable under Section 201 read with Section 34 of the I.P.C. and sentenced to suffer R.I. for three years and to pay fine of Rs.500/- each and in default to suffer S.I. for two months each. Substantive sentences were ordered to run concurrently. 3. Accused 2, 3 and 4 were acquitted of the offences punishable under Section 212 read with Section 34 of the I.P.C. The investigating agency was directed to file fresh charge-sheet against absconding accused Dr. Suryabhan Nandlal Jaiswal, after he is traced. The said judgment and order is challenged in these appeals by accused 1 and 5. 4. The prosecution case needs to be shortly stated. Deceased Krishna was the son of PW 1 Vasantlal. On 7/12/03 at 11 a.m. Krishna was playing at the back of his house. PW 1 came home for lunch at 1 p.m. His wife was washing clothes. Krishna did not come home till 1 p.m. PW 1 searched for him. He could not trace him. He 5 and his brother PW 2 Nandlal Gupta went to the police station. PW 2 lodged missing complaint (Exh.-45). At night one unknown person made a call on PCO booth situated adjacent to his shop and called the complainant on phone. His nephew received that call. That unknown person told him that PW 1 was looking for his son but his son is in his custody; that PW 1 should make arrangement for money and that he would phone again. PW 1 disclosed this fact to his brother and wife. On 8/12/03 at 19-22 hrs. that person again made phone call on the P.C.O. booth and asked him whether he had made arrangement for money and told him to come to a place named by him with money. PW 1 asked him where he should come with money. That person told PW 1 that he will tell the place where money should be brought afterwards. After ten minutes he again phoned and informed that PW 1 should come with Rs.5 lacs at Kalwa Kharegaon near Mafatlal building. PW 1 then lodged FIR. Offence under Section 364(A), 385 of the I.P.C. came to be registered against unknown persons. FIR was lodged on 9/12/03 at 6-30 p.m. 5. On the basis of the FIR Investigation was set into motion. Except accused Dr. Suryabhan Jaiswal all accused came to be arrested. After completion of the investigation the accused, except Dr. Suryabhan Jaiswal whose case was separated, came to be 6 charged as aforesaid. 6. In support of its case the prosecution examined as many as 16 witnesses. The prosecution case basically rests on the evidence of PW 1 Vasant Gupta and PW 2 Nandlal Gupta, father and uncle of deceased Krishna respectively. A strong circumstance which according to the prosecution links accused 1 to the crime alleged against him is that at his instance the dead body was recovered from a remote place on a hill. Discovery of the said spot is also alleged against accused 5. 7. The accused pleaded not guilty to the charge. They did not lead any defence evidence. After going through the evidence learned Sessions Judge was of the opinion that the prosecution had proved its case against accused 1 and 5. He convicted them as aforesaid and hence this appeal. 8. We have heard learned counsel Ms. Raje appearing for accused 1 and Mr. Chaudhari, learned counsel appearing for accused 5. We have also heard learned APP. With their assistance, we have gone through the record. 9. Learned counsel Mrs. Raje and Mr. Chaudhari submitted that the prosecution has not been able to prove the identity of the corpse. According to PW 6, the recovery pancha, the police found a skeleton 7 of the upper half of a body consisting only of the head and some ribs. However, PW 7 the autopsy surgeon stated that he could not determine the gender of the dead body. In the panchnama it is stated that a shirt was found on the skeleton but the colour of the shirt is not mentioned. But in the inquest panchnama its colour is described as blue. In the missing complaint Exhibit-45, however, the missing child is described as wearing a green colour shirt. Therefore, the identity of the dead body is suspect. 10. Learned counsel submitted that there is no evidence to show that the death of the missing child was homicidal. According to the autopsy surgeon he did not notice any injuries on the dead body. He could not see any ligature marks on the neck of the dead body. As per his report Exh.-58 cause of death could not be determined. Therefore, the possibility of the death being accidental or natural cannot be ruled out. 11. Learned counsel submitted that the child went missing at about 12 noon on 7/12/03. The first ransom call was received at about 6-15 p.m., on 7/12/03. However, only a missing complaint was registered at 9-20 p.m. Thereafter two ransom calls were received on 8/12/03. A trap was laid at midnight on 8/12/03 to get the culprits. Three persons were arrested on 9/12/03 at about 1 a.m., but no FIR 8 was registered and they were released. The FIR was registered at 6-30 p.m., on 9/12/03. Learned counsel submitted that the prosecution has not offered any explanation for this delay. 12. Learned counsel pointed out that the fact that 3 persons came to pick up the bag from a dilapidated building is stated by PW 1 the father of the missing child, PW 2 the uncle of the missing child and PW 3 the owner of the phone booth, who were part of the trap. However, the police allowed these 3 persons to go away. The police have therefore, shielded the real culprits and arrested the accused only on suspicion and falsely implicated them. 13. Mrs. Raje learned counsel for accused 1 laid stress on the delay in arresting accused 1. She submitted that incident occurred on 7//12/03. The FIR was registered on 9/12/03. The 1st accused was all along available. He was helping PW 1 and others in searching the missing child. His arrest on 17/12/03, therefore, creates doubt about the credibility of the prosecution case. Mrs. Raje submitted that the prosecution story that on 13/12/03 the first accused told PW 1 that a goddess had entered his body and informed him that the child had been kidnapped and the body was thrown in Yeur forest and that the 1st accused led them to Yeur forest but PW 1 did not enter the forest out of fear and they returned home, 9 is a concocted story because PW 1 did not state this in his statement recorded by the police. This omission has been brought on record. Mrs. Raje pointed out that this is further supported by the fact that the police did not prepare arrest panchnama of the 1st accused. Mrs. Raje further submitted that there is no discovery of the dead body at the instance of the 1st accused. Mrs. Raje further submitted that the evidence indicates that the police traced the dead body because of foul smell and not because the accused pointed out the place where the dead body was allegedly thrown. 14. In any case submitted Mrs. Raje at the highest even if it is held that the prosecution case is true, it can be said that the 1st accused had knowledge of the location of the dead body but he was not the author of its concealment. In this connection she relied on Pohalya Motya v. State of Maharashtra, AIR 1979 SC 1949. Mrs. Raje also relied on Trimbak v. State of MP, AIR 1954 SC 39 and Prabhoo v. State of UP, AIR 1963 SC 113. Mrs. Raje submitted that, therefore, conviction and sentence of the 1st accused must be set aside. 15. Mr. Chaudhari learned counsel appearing for the 5th accused submitted that the 5th accused was arrested more than three months after the offence. The police have alleged recovery of clothes at his instance. According to the prosecution on 12/3/04 he made a 10 statement offering to show the place where he had stayed. Thereafter he showed a room from where a pant and a shirt were seized. These clothes are not shown to be bloodstained and no chemical analyser’s report in respect thereof is produced by the prosecution. This circumstance, therefore, does not incriminate the 5th accused. 16. Mr. Chaudhari submitted that according to the prosecution the spot where the dead body was found was discovered on 17/12/03 pursuant to the statement made by the 1st accused. The spot panchnama and inquest panchnama were prepared. The spot was photographed and video shooting was also done of the spot. According to the prosecution after about 3 months they discovered the same spot at the instance of the 5th accused pursuant to a statement made by him under Section 27 of the Evidence Act. Learned counsel submitted that it is well settled in law that what is once discovered cannot be re-discovered. In this connection he relied on Vijender v. State of Delhi (1997) 6 SCC 171 and Sukhvinder Singh & Ors. v. State of Punjab, (1995) 5 SCC 152. Mr. Chaudhari submitted that, therefore, the prosecution cannot rely upon the alleged discovery of spot where the dead body was found at the instance of the 5th accused. 11 17. Learned counsel submitted that so far as the 5th accused is concerned, nobody has seen him either in the company of the missing child or in the vicinity of the place where the dead body was found. Nothing incriminating has been recovered from him or deposed against him. No evidence has been adduced by the prosecution to indicate his involvement in the crime. The prosecution is only relying on the statement of PW 1 that accused 5 had painted his house the previous Diwali. Learned counsel submitted that this circumstance is totally innocuous. It does not in any manner incriminate the 5th accused. Learned counsel submitted that the prosecution has failed to adduce any evidence which can establish the 5th accused’s involvement in the instant crime. His conviction and sentence, therefore, deserves to be set aside. 18. Before we proceed to deal with rival contentions it is necessary to mention that in this case investigation is not upto the mark. It can be described as casual and perfunctory. Defective investigation has created lacunae in the prosecution case. The investigating agency’s casual approach is compounded by the manner in which prosecution has conducted the case in the trial court. Though prosecution should not strive to secure conviction by concocting evidence, it is its duty to conduct the case with a desire to bring the truth to light by leading 12 the available evidence in a proper manner so that guilty are brought to book. In several cases it is noticed that because of faulty investigation cases end in acquittals. Sometimes lacunae are designedly created. Taking note of this in Karnel Singh v. State of U.P. (1995) 5 SCC 518 the Supreme Court has observed that “in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer, if the investigation is designedly defective”. Keeping this observation in mind, we shall approach this case. We will have to see whether in spite of the lacunae the prosecution case can be sustained. 19. We shall first deal with the submission that the identity of the dead body is not established. It was argued that there is a discrepancy in the description of the colour of the shirt found on the dead body. This submission must be rejected. In the inquest panchnama Exh.-76, colour of the shirt is not described as blue as contended by learned counsel. It is described as bluish. In Exh.-27 which is letter dated 11/3/2004 under which articles were sent to the laboratory by PI More, the said shirt is described as bluish ash coloured shirt. Therefore, the colour of the shirt was a combination 13 of blue and ash colour. It had a two tone hue and, therefore, if it was described as green in missing complaint Exh.-45 it cannot be said that there is a discrepancy. It is pertinent to note that in the inquest panchnama Exh.-76 it is mentioned that around the neck of the dead body there was a black thread with a locket having image of Lord Krishna on one side and Lord Hanuman on other side. In his letter Exh.-27 SI Mane has also stated that there was a black thread around the neck of the dead body and there was a locket having god’s images on both sides. PW 1 Vasant, the father of the deceased identified the shirt Art. 5 and black thread with locket Art. 7, which were taken charge of by the police, when shown to him in the court as belonging to his son. The locket obviously had a distinct identity. PW 1 being father of deceased Krishna would not fail to identify it. Therefore, even though the body could not be identified because it was decomposed, identification made on the basis of the shirt and the black thread with a locket will have to be accepted. Similarly PW 2 Nandlal Gupta has said that he identified the dead body of Krishna because of his shirt and black thread and pendant. It is true that because the body was decomposed its gender could not be determined. But the identification of the dead body made by PW 1 and PW 2, in our opinion inspires confidence and, therefore, 14 we reject the submission of learned counsel that identity of the dead body was not proved. 20. We are also not impressed by the submission that the death could be accidental or natural. The inquest panchnama Exh.-76 states that there was a red wire round the neck of the dead body. The dead body was found on a hill in a most decomposed state. A small child will not go to such a secluded place on the hill unless taken there by somebody. Finding of a red wire around the neck rules out the possibility of an animal taking the child away. It is argued that in his report Exh.-58, PW 7 Dr. Shingare, who examined the dead body has stated that the cause of death could not be ascertained and he could not detect any fracture marks and injury marks on the bone. But it must be noted that Dr. Shingare has added that, “if death is caused due to asphyxia or throttling marks cannot come down on bones and can be seen on soft tissues”. The body being decomposed Dr. Shingare could not have noted throttling marks on the soft tissues. Though the medical evidence in this case does not help the prosecution to conclude with certainty that death was homicidal, the other proved circumstances establish that the death was homicidal. 21. At this stage, it is necessary to refer to the judgment of the 15 Supreme Court in Bhupendra Natu Prasad v. State of Bihar (1992) 3 SCC 547 on which reliance has been placed by learned counsel in support of their submission that since in this case cause of death has not been established, conviction cannot be sustained. In Bhupendra Nath’s case the deceased informed his wife that after he took betel (pan) offered by the accused he vomited 5 to 6 times. He was admitted in the hospital where he died. Post-Mortem was conducted. Viscera was sent to the Chemical Analyser. Report of Chemical Analyser was not available. From the Post-Mortem notes cause of death could not be ascertained. The doctor who conducted the Post-Mortem was not examined. The Supreme Court observed that there was no satisfactory evidence to establish that it is the accused who gave the deceased betel containing poison. Oral dying declaration did not inspire confidence. The wife of the deceased did not state before the investigating officer that the accused had taken her husband with him. It is in these circumstances that the Supreme Court while setting aside the conviction of the accused observed that in a criminal case the cause of death has to be ascertained conclusively. In our opinion, this judgment is not applicable to the present case. 22. Undoubtedly the prosecution has to establish cause of death 16 but the Supreme Court has not laid down in this case that, if cause of death is not stated by the doctor in all cases the prosecution must fail. For instance, if a dead body is not discovered, the prosecution will not necessarily fail, if the circumstances on record clearly prove that the deceased was murdered. Established circumstances on record may prove what led to the death. Similarly, if a body is recovered after a long time in a decomposed state making it difficult for the doctor to ascertain the cause of death, prosecution may not fail, if proved circumstances on record establish that it was a case of murder and also establish what could have led to the death. 23. In this connection, we must refer to Sevaka Perumal’s case to which our attention is drawn by Mrs. Raje. In that case the Supreme Court has clarified that in a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. The Supreme Court has further clarified that what is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum of death was committed and, it must be proved by direct or circumstantial evidence, although the dead body 17 may not be traced. We have no hesitation in recording that in this case offence of murder is proved by circumstantial evidence. What needs to be now seen is as to who is responsible for the murder of PW1’s son. 24. We must now go to the evidence of PW 1 Vasant, the father of deceased Krishna and his uncle PW 2 Nandlal. Before we appreciate the evidence of PW 1, we must keep in mind that he is a vegetable vendor. He was under a shock due to missing of his son. He was moving all over in search of his son. He had suffered a great mental trauma. Therefore, if there are any omissions in his statement they cannot be taken against him, if otherwise his evidence inspires confidence. 25. Learned counsel has vehemently argued that PW 1’s case that he received ransom call on 7/12/03 is untrue. According to them the prosecution has not come out with the truth. It is pointed out that the first ransom call was allegedly received at about 6-15 p.m. on 7/12/03. The missing complaint Exh. 45 was registered at 9-20 p.m. on the same day. However, in that complaint there is no mention of ransom call. It is simplicitor a missing complaint. We have seen Exh.-45. The time of its recording is mentioned as 21.20. In this connection we will have to refer to the relevant portions from the 18 evidence of material witnesses. 26. PW 1 has stated that on 7/12/03 at 11 a.m., his son Krishna was playing at the back of his house. His wife was washing clothes. He came home for lunch at about 1 p.m. Krishna did not return till 1 p.m. He searched for Krishna. Krishna could not be traced. Thereafter he went with his brother to the police station and lodged missing complaint Exh.-45. The missing complaint is lodged by PW 2, brother of PW 1. PW 1 has further stated that after the missing complaint was lodged, the police started searching for Krishna in the area. 27. PW 1 has further stated that on the same day some unknown person made a call at PCO adjacent to his house. According to him that unknown person told the owner of that shop that he should call him. PW 1’s nephew had received that phone. That unknown person informed him that PW 1 was searching for his son and that his son is in his custody and that he should arrange some money within 24 hours. He further told on telephone that he will again telephone PW 1. There is some discrepancy as to whether this phone call was received by PW 1’s nephew or PW 1 himself. Whereas PW 1 and PW 2 state that it was received by PW 1’s nephew in his complaint Exh.-35, PW 1 has stated that it was 19 received by him. This discrepancy is not a major discrepancy. What is material is that PW 1 got to know about this call. About this fact there cannot be any dispute. 28. PW 2, the brother of PW 1 has in his statement