IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CONFIRMATION CASE NO.2 OF 2004 The State of Maharashtra ) … Appellant Versus Santoshkumar Satishbhushan Bariyar ) … Respondent (Orig. Accused 1) Ms. U.V. Kejriwal, A.P.P. for the State-appellant. Mr. Shirish Gupte, senior advocate, with Mr. Nitin Jamdar and Mr. Siddharth Likhite for the respondent. ALONG WITH CRIMINAL APPEAL NO.754 OF 2004 (By accused against conviction) Santoshkumar Satishbhushan Bariyar Age 27 years, Occupation Nil, Residing at Vadgaon, B.K. Pune. (At present in Yerawada Central Prison No.1) ) ) ) … Appellant (Orig. Accused 1) Versus The State of Maharashtra ) … Respondent Mr. Shirish Gupte, senior advocate, with Mr. Nitin Jamdar and Mr. Siddharth Likhite for the appellant. Ms. U.V. Kejriwal, A.P.P. for the State-respondent. ALONG WITH CRIMINAL APPEAL NO.869 OF 2004 (By accused against conviction) 1. Sanjeevkumar Mahendraprasad Roy Age 25 years, occupation Nil, residing at Naigaon, Mumbai. ) ) ) 2. Santoshkumar Shrijailal Roy Age 25 years, occupation Nil, residing at Naigaon, Mumbai. (Originally residing at Dharampur, District Samastipur, Bihar) (At present Yerawada Central Prison) ) ) ) ) )… Appellants ) (Orig. Accused 2 and 3) Versus The State of Maharashtra ) … Respondent Mr. Nitin Jamdar and Mr. Vijay Killedar for the appellants. Ms. U.V. Kejriwal, A.P.P. for the State-respondent. ALONG WITH CRIMINAL APPEAL NO.874 OF 2004 (By State for enhancement of sentence) State of Maharashtra ) … Appellant (Orig. Complainant) Versus 1. Sanjeevkumar Mahendraprasad Roy Age 25 years, Occupation Nil, Residing at Naigaon, Mumbai. ) ) ) 2. Santoshkumar Shrijailal Roy Age 25 years, Occupation Nil, Residing at Naigaon, Mumbai. (Originally residing at Dharampur, District Samastipur, Bihar.) ) ) ) ) … Respondents ) (Orig. Accused 2 and 3) Ms. U.V. Kejriwal, A.P.P. for the State-appellant. Shri Vijay Nahar with Mr. Sudhir Shah, Mr. Nitin Jamdar and Mr. Vijay Killedar for respondents 1 and 2. CORAM : SMT. RANJANA DESAI & D. B. BHOSALE, JJ. DATED : 12TH AUGUST 2005. JUDGMENT : (Per Smt. Ranjana Desai, J.) 1. The respondents in Confirmation Case No.2 of 2004 (A-1, A-2 and A-3 respectively) along with approver PW-1 Kumar Gaurav (hereinafter referred to either as “PW-1” or as “the approver” or “Kumar Gaurav”) were tried in the Court of Second Additional Sessions Judge, Pune at Pune in Sessions Case No.14 of 2002 for offences punishable under section 120-B, 364-A, 387, 302 and 201 read with section 120-B of the Indian Penal Code (for short, “the IPC”) for hatching a criminal conspiracy to abduct one Abhijeet Kothari and/or Kartikraj and to demand a ransom of Rs.7 lacs and, thereafter, to commit murder and cause disappearance of the evidence and for abducting Kartikraj and keeping him in detention and for threatening to cause his death to compel his parents to pay a ransom and for putting Kartikraj in fear of death or grievous hurt with the help of fire arms and deadly weapons in order to commit extortion and for committing murder of Kartikraj between 8/8/2001 and 9/8/2001 and for causing disappearance of dead body of Kartikraj by cutting it into pieces and throwing it into the river. They were further charged for possessing revolver without a valid licence and alternatively A-3 was charged for contravention of section 4 of the Indian Arms Act punishable under section 25 thereof. 2. By judgment and order dated 18/5/2004, A-1 was convicted of the offences punishable under section 302 read with section 120-B of the IPC. He was further convicted of the offences punishable under section 364-A read with section 120-B of the IPC. For these offences, he was sentenced to death subject to confirmation by this court. A-2 and A-3 were convicted of the offences punishable under section 302 read with section 120-B of the IPC and they were sentenced to suffer RI for life and to pay a fine of Rs.1,000/- each, in default, to undergo further RI for three months. A-2 and A-3 were further convicted of the offence punishable under section 364-A read with section 120-B of the IPC and they were sentenced to suffer RI for life and to pay a fine of Rs.1,000/- each, in default, to undergo further RI for three months. A-1 to A-3 were convicted of the offences punishable under section 387 read with section 120-B of the IPC and they were sentenced to undergo RI for seven years and to pay a fine of Rs.1,000/- each, in default, to undergo further RI for three months. A-1 to A-3 were convicted of the offences punishable under section 201 read with section 120-B of the IPC and they were sentenced to suffer RI for seven years and to pay a fine of Rs.1,000/- each, in default, to undergo further RI for three months. They were further convicted of the offence punishable under section 4 read with section 25 of the Indian Arms Act and sentenced to suffer RI for one year and to pay a fine of Rs.500/- each, in default, to undergo further RI for one month. Substantive sentences were ordered to run concurrently. 3. As required by section 366 of the Criminal Procedure Code, (for short, “the Code”), the learned Sessions Judge has made a reference to this Court and forwarded the records and proceedings of Sessions Case No.14 of 2002 to this court for confirmation of death sentence. The reference made by the learned Sessions Judge is numbered as Confirmation Case No.2 of 2004. 4. Criminal Appeal No.754 of 2004 is preferred by A-1 – Santoshkumar Satishbhushan Bariyar and Criminal Appeal No.869 of 2004 is preferred by A-2 Sanjeevkumar Mahendraprasad Roy and A-3 – Santoshkumar Shrijailal Roy. Criminal Appeal No.874 of 2004 is filed by the State of Maharashtra under section 377 (1) of the Code for enhancement of sentence awarded to A-2 and A-3. All these matters arise out of the same judgment and, hence, they are being disposed of by this common judgment. 5. Before going to the gist of the prosecution case, it would be necessary to see how the crime came to be registered. 6. Deceased Kartikraj, (hereinafter referred to as “Kartikraj” for convenience), was working as a junior clerk in Central Railways at Pune. His father PW-49 S. Ramraj was serving as a manager at NABARD at Hyderabad. PW-50 Santosh Ramraj is the younger brother of Kartikraj. At the relevant time, Santosh Ramraj was staying with his father at Hyderabad. Their residential phone number at Hyderabad was 6582215. On 8/8/2001, at about 2.00 a.m. there was a threatening call at his house. The caller asked him to call his father on the line and told him that his brother Kartikraj was in his custody and he wanted Rs.10 lacs within 24 hours and if the money is not paid Bhailog would kill him. There were more threatening calls. S. Ramraj also talked to the caller and told him to give him time till morning so that he would make arrangement for money. At 3.30 a.m. S. Ramraj phoned his friend - PW-2 Dattatraya Bhadange, who was working as a manager in NABARD at Pune. He told him about the call and told him to make enquiry about his son. Bhadange tried to look for Kartikraj on the next day but he could not find him. He phoned S. Ramraj and told him that he should lodge a complaint. Since S. Ramraj was ill he sent a FAX to his Pune office and requested Bhadange to send the complaint to the police station. He also sent photograph of Kartikraj by e-mail. Bhadange then filed complaint (Ex-56), at Balgandharva Police Chowky which is within the jurisdiction of Deccan Gymkhana Police Station. Complaint was filed along with FAX message Ex-57 and Ex-58. Crime was registered against unknown persons at C.R. No.335 of 2001 for the offences punishable under section 363 and 387 of the IPC. On 10/8/2001, the investigation was handed over to the Crime Branch. API Lotlikar started further investigation. On 10/8/2001, he received a phone call from Santoshraj enquiring about his brother. Santoshraj told him that he had received calls from kidnappers. They had asked him to come to Bombay with Rs.10 lacs and a mobile phone. API Lotlikar asked Santoshraj the name of his friend. Santoshraj gave him the name of one Sham Naidu. API Lotlikar told him that he should give the caller his mobile phone number 9822056021 as being the number of his friend Sham Naidu. Santoshraj did accordingly. 7. The kidnappers then started calling API Lotlikar on his mobile phone thinking him to be Sham Naidu. API Lotlikar took various steps in investigation, engaged the kidnappers in conversation from various places and with the help of police party laid a trap at Juhu on 12/8/2001 and nabbed three accused. The fourth accused was nabbed at Andheri Railway Station. He asked them about the whereabouts of Kartikraj. The accused gave false information and took the police from one place to another. But Kartikraj was not traced. Realising that the accused are dodging his questions, API Lotlikar produced them before P.I. Dilip Shinde in his office at Pune on 13/8/2001. P.I. Shinde arrested them. On 13/8/2001, investigation was handed over to P.I. Shinde. 8. On 29/10/2001, accused Kumar Gaurav addressed a letter to the Commissioner of Police, Pune City (Ex-33) stating that on 8/8/2001 he and his companions had committed murder of Kartikraj and he has all the details of that incident. He further stated that he was repenting for what he has done and, hence, he wants to make a confession before the court. He prayed that he may be produced before the court for that purpose. On 31/10/2001 he was produced before J.M.F.C. (AC) Court Pune at 2.00 p.m. The learned Magistrate inter alia, asked PW-1 whether he has any complaint to make against any police officers about ill treatment. He answered in the negative. The learned Magistrate ascertained whether any allurement was given to him to make a statement. PW-1 answered in the negative. The learned Magistrate told him that he is not in police custody and that he is not bound to make a confession and if he makes a confession it may be used against him. PW-1 confirmed his desire to make a confessional statement The Magistrate gave him time till 2.00 p.m. on 1/11/2001 to reflect on his decision. He was again produced before the Magistrate and on 1/11/2001 at 2.00 p.m. he again expressed his willingness to confess. The learned Magistrate then recorded his confessional statement under section 164 of the Code in accordance with law. 9. It must be mentioned here that on 18/2/2002, PW-1 had addressed a letter to the Additional Sessions Judge, Pune, stating that he had made confessional statement on 1/11/2001 due to fear and under pressure of Crime Branch and that he was falsely implicated in the case. This letter is at Ex-4. On 3/4/2002, he addressed another letter to the District and Sessions Judge, Pune, which is at Ex-12 stating that he had submitted his application dated 18/2/2002 due to pressure of his father and that he did not want to retract his confession. By this letter, he withdrew his application dated 18/2/2002. In this letter, he also stated that he had not sent application dated 6/11/2002 to J.M.F.C. Rathod retracting his confession. 10. We shall deal with the aspect of the alleged retractions of Kumar Gaurav at appropriate stage as his evidence is assailed by the learned defence counsel mainly on the basis of these retractions. The learned counsel have contended that PW-1’s confessional statement is not voluntary as it is the result of inducement, threat or promise. The learned A.P.P. has denied these allegations. 11. On 21/3/2002, investigating officer PW-53 Dilip Shinde made application under section 307 of the Code before the Sessions Court, Pune, praying that pardon be granted to Kumar Gaurav. On 3/4/2002, the learned Sessions Judge granted pardon to PW-1 on condition of his making full and true disclosure of all the facts and circumstances within his knowledge relating to Kartikraj’s murder. 12. The investigation, inter alia, included discoveries at the instance of the accused of their clothes, clothes and articles of the deceased, weapons and leg of Kartikraj, conducting of identification parade of weapons and of the accused, collection of printouts from the STD booths from where calls were made by the accused to threaten the family members of Kartikraj and to API Lotlikar who posed as Sham Naidu. The accused came to be charged as aforesaid on 30/4/2002. 13. At the trial, in support of its case, the prosecution examined as many as 53 witnesses. The star witness of the prosecution is the approver PW-1 Kumar Gaurav. The prosecution also examined the father and brother of Kartikraj, the owners of the flat where the accused had stayed, panch witnesses to prove discoveries made at the instance of the accused, shop owners from whose shops the accused had purchased various articles and sim cards, the STD booth owners from where the accused made phone calls and the persons who held identification parades. The Magistrate who recorded confessional statement of PW-1 was also examined. The prosecution led the evidence of experts. Five police personnel were examined to bring on record details of investigation. 14. It is necessary to narrate the detailed account of the incident in question as deposed by the approver PW-1 Kumar Gaurav in his evidence as that unfolds the prosecution story and it is its basis. PW-1 has stated that he holds BSC Degree from Samasthpur College, Bihar. He is a music composer. He wanted to visit Bombay to hand over his Music Album to T Series Music Company. On 25/7/2001 A-3 Santosh Kumar Roy who is also from Bihar came to his place and asked him when he was proceeding to Bombay. He told him that he was to go to Bombay on 31/7/2001. A-3 told him that he and his friend Sanjeev Kumar Roy A-2 also wanted to go to Bombay. A-3 further told him that he wanted to go to Bombay in search of a computer course and A-2 wanted to go to Bombay in search of a job and therefore PW-1 should make reservation for them also. 15. PW-1 accordingly reserved seats on Patna Kurla Super Fast Express. On 31/7/2001 they boarded train at Patna. On 1/8/2001 their train reached Kalyan. When the train halted near the outer signal they alighted from the train. From the outer signal they went to Kalyan Railway Station. At Kalyan Railway Station A-2 told him that one of his friends was residing at Pune and it would be better to proceed to Pune and stay there as that would be economical. Then they came to Pune by Sahyadri Express at about 10.30 p.m. 16. After they reached Shivaji Nagar Railway Station at 10.30 p.m. A-2 phoned his friend from a telephone booth situate outside the station, A-2 told them that his friend Santosh Kumar Bariyar A-1 was arriving there within 10 minutes for receiving them. Within few minutes, A-1 arrived there. A-2 introduced PW-1 to him. 17. A-1 told them that he had not received possession of his flat from his agent and he would take them to Koregaon Park where his relative was staying. A-1 took them to Popular Heights Colony where his relative Kamal Prashun was residing. At the gate they met a watchman. He told A-1 to enter their names in the register. A-1 wrote the names as Prakash, Navin and Sunil and put his signature on the register. PW-1 asked him as to why false names were entered, he told him "aisa chalta hai". They went to Kamal Prashun's flat. PW-1 was introduced to Kamal Prashun by A-1. A-1 told Kamal Prashun that they were his friends and they were proceeding to Satara in search of a job. They had no accommodation at Pune and therefore they were brought to his place. Kamal Prashun allowed them to stay there. 18. On 2/8/2001 A-1 contacted his agent Pramod Dodke on phone and enquired with him about his flat. Dodke told him that he was not able to make any arrangement for him but promised that by next morning he would make arrangement. They spent the day watching T.V. and spent that night in Kamal Prashun's flat. 19. On 3/8/2001 at night at 9.30 p.m. they went to Dhayariphata to meet Dodke. Dodke was present in his office. A-1 asked him about the flat. Dodke told him that he could not make any arrangement. A-1 asked him that though he had paid the deposit amount why he could not make any arrangement for the flat and since his friends had arrived he was in need of accommodation. Dodke assured them that he would arrange for a flat. 20. At about 12 noon Dodke took them to his flat at Kudale Patil Aangan Apartment. They stayed there between 12 noon of 3/8/2001 to 4 p.m. of 4/8/2001. 21. At night (between 3/8/2001 to 4/8/2001) A-1 told them that he had a plan whereby they can earn Rs.10 to Rs.15 lacs. He had a friend by name Abhijeet Kothari whose father was a doctor. He had another friend by name Kartikraj whose father was the Manager in NABARD. They were rich. He told them that they would kidnap these boys and would make demand for money from their families and if any difficulty arises they would kill them. He told them that their dead bodies would be cut into pieces and the pieces would be thrown at some place after putting them in different bags. He asked them whether they were ready for such a plan. They expressed their consent. 22. He further told them that for execution of the plan he would require some articles. He asked PW-1 to prepare a list according to his suggestion. He told them that articles like sickle, hacksaw blades, rope, cello tape, Dettol, sim card, 7 polythene bags and 3 rexin bags were required. Blade and sickle were required for cutting dead bodies into pieces, rope was required for tying the hostages, polythene bags were required for putting pieces of dead bodies and then rexin bags were required for putting polythene bags containing pieces of dead bodies in it. Sim Card was required for using mobile phone for contacting family members of these hostages. Dettol was required as a deodorant. PW-1 prepared the list accordingly. After discussing the plan they slept. 23. On 4/8/2001 at about 5.30 to 6 a.m. A-1 told them that he had selected one place for disposing of the pieces of dead bodies. He asked them to accompany him to visit that spot. At about 8.30 a.m. they went to Khadakwasla Dam. A-1 pointed out to them one place near Khadakwasla Dam where he had decided to throw pieces of dead bodies. The spot was approved by them. Thereafter they returned to their flat. 24. At about 4 p.m. Dodke took them to Amrapali society for showing them a flat. The flat was approved by A-1. They shifted their baggage there. 25. At about 8.30 p.m. they went to Swargate S.T. Stand by an auto rickshaw. They purchased 7 polythene bags, 3 rexin bags from one shop for Rs.395/-. The price was paid by A-1. 26. From Swargate S.T. Stand they went to Deccan Gymkhana by an auto rickshaw. PW-1 purchased Sim Card from Prasad Medical Stores for Rs.750/-. It was a card of AT & T Company bearing No. 9822148663. The sim card was loaded in his Motorola Mobile phone. The shopkeeper gave him a form, he filled the form and signed on it. He mentioned his true name and address on the form. They then returned to the flat. A-3 removed a revolver and 3 cartridges from his bag. They discussed the plan and went to sleep. 27. On 5/8/2001 at about 5.30 a.m. A-3 contacted his friend Bhiku of Samastipur on his phone and requested him to convey message to his family that he would return to Samastipur on 10/8/2001. A-1 told them that they would purchase a sickle and hacksaw blade from some other place and not from Pune. At 9.30 in the morning they took train for Lonavala. From Lonavala they went to Khandala Railway Station by an auto rickshaw. A-1 told them that he would ask family members of his hostages to throw bag containing money on the Khandala Railway Station platform as it was a calm and quiet area. They approved the idea. They returned to Pimpri Railway Station. From Pimpri Railway Station they went to Pimpri Market. At about 1.30 p.m. they went to Minu General Stores. They purchased 5 hacksaw blades and one hacksaw frame from that shop and paid Rs.45/- to Rs.50/-. The money was paid by A-1. 28. From that shop they went to Asha Hardware shop. PW-1 and A-3 went inside the shop. They purchased sickle from that shop. For paying the price of sickle A-3 called A-1 in the shop. The shop keeper asked them for what purpose the sickle was required. They spent considerable time there. A-1 told the shopkeeper that sickle was required for cutting coconuts. Then they returned to Pimpri Railway Station and from Pimpri Railway Station they went to Pune Railway Station. 29. After they arrived at Pune Railway Station, A-1 told them to proceed to the flat. He told them that he would ascertain whether Abhijit Kothari and Kartikraj were in town. Accordingly three of them returned to the flat. At the flat A-2 told them that he had noticed a shop of iron-smith near Vadgaon Canal and that he would go to that shop and sharpen the sickle. He did not return for a considerable time. Hence A-3 went in search of him. Sometime thereafter both of them returned. A-2 told them that he had purchased one more sickle from iron-smith. 30. At about 7.30 p.m. PW-1 contacted his cousin at Sitamandi on his mobile between 7 & 7.30 p.m. He received a call from A-1 on his mobile phone that Abhijit Kothari and Kartikraj were not available. At about 9.30 A-2 contacted one Prakash at Samastipur on PW-1's phone. A-1 returned at about 10 p.m. and told them that he would search for Abhijit Kothari and Kartikraj on the next day. They spent time talking to each other, they had dinner and then went to sleep. 31. On 6/8/2001 at about 8.30 a.m. A-1 contacted Abhijeet Kothari at his hostel on PW-1's mobile phone, he could not contact him. At about 9.30 a.m. A-1 left the flat for taking search of Kartikraj. He returned at about 3 p.m. He told them that he was not able to contact Kartikraj but he had secured his telephone number and that he had left a message for Kartikraj. He told them that at any rate he would bring Kartikraj on the next day. When PW-1 asked him how he was so sure, he told him that he had promised Kartikraj a party for his marriage and therefore Kartikraj will come. Thereafter they discussed their plan and slept. 32. On 7/8/2001 A-1 contacted owner of the house where Kartikraj was staying on PW-1's mobile phone between 7 to 8 a.m. He told the owner that he would phone after 5 - 10 minutes and he should call Kartikraj. After sometime A-1 again phoned. Kartikraj was available on the other side. A-1 told him that he did not know the address of his flat. A-1 told him that he should go to his flat situate at Koregaon Park from where he would collect him and bring him to his flat at Amrapali. 33. At about 9.30 a.m. they went to a shop where V.CDs were available. A-1 asked the shop keeper to give him on hire colour T.V and V.C.R. player. The shop keeper told him that it was not possible to give anything on hire to an unknown person and he should bring someone known to him