1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION NO. 134/2006 The State of Maharashtra, through Public Prosecutor, High Court of Bombay, Bench at Aurangabad. ...Applicant. Versus 1 Sanjay Vishwanath Gunjal, Age : 46 years, R/o Gunjalwadi, Tq. Sangamner, Dist. Ahmednagar. 2 Hemant Ulhas Pawar, Age : 50 years, R/o Devigalli, Sangamner, Dist. Ahmednagar. 3 Rajendra Keruji Gunjal, Age : 44 years, R/o Devigalli, Sangamner, Dist. Ahmednagar. ...Respondents. Mr. A.Z. Gandhi A.P.P. for applicant. Mr. R.N. Dhorde, Advocate for respondents No.2 and 3. WITH CRIMINAL WRIT PETITION NO. 310/2006 Udaykumar s/o Keruji Gunjal Patil, Age : 50 years, Occu. Agriculture, R/o Sangamner, Tq. Sangamner, Dist. Ahmednagar. ...Petitioner. Versus 1 The State of Maharashtra, Through the Government Pleader office, at Aurangabad 2 Sanjay s/o Yashwant Gunjal, Age : 42 years, Occu. Agril. R/o Gunjalwadi, Tq.Sangamner, Dist. Ahmednagar. 2 3 Hemant s/o Ulhas Pawar, Age : 40 years, Occu. Agril. R/o Gunjalwadi, Tq. Sangamner, Dist. Ahmednagar. 4 Rajendra Keruji Gunjal, Age : 45 years, Occu. Agril. R/o Gunjalwadi, Tq. Sangamner, Dist. Ahmednagar. ..Respondents. Shri P.S. Bhandari, Advocate for petitioner. Shri A.Z. Gandhi, A.P.P. for respondents no1/State. Mr. R.N. Dhorde, Advocate for respondents No. 3 and 4. CORAM : A.V. NIRGUDE, J Date : 24th September,2010. ORAL JUDGMENT:- 1 Heard. 2 Both these proceedings challenged the order passed by the learned Additional Sessions Judge, Sangamner dated 30/01/2006 in Sessions Case No.8/2000 refusing to alter charge which was already framed against the respondents / accused. 3 The respondents / accused were charged under Section 364 read with Section 34 of Indian Penal code. It is the prosecution case that the respondents / accused kidnapped a minor son of writ petitioner Uday kumar on 13/03/1990 for committing his murder. The police had already filed charge sheet and on the basis of this charge sheet, the case was already committed to the Court of Sessions. As said above, the learned Additional Sessions Judge framed charge against the accused under Section 164 read with Section 34 of Indian Penal Code. 4 After this, the prosecution moved an application for alteration of the charge. They requested the Court that the charge should be altered and the respondents / accused should be additionally charged under Section 302, 201 and 120-B of Indian Penal Code also. The learned judge on perusal of the record and after hearing both the 3 sides, rejected the said application. Against this order, the State has filed the criminal revision application and the complainant has filed the writ petition. 5 It was urged before the learned judge of the trial Court that the police papers sufficiently showed the material for framing charge under the above mentioned additional sections of Indian Penal Code but the learned judge held that the material is insufficient. 6 With the help of the learned advocates appearing for the parties, I went through the charge sheet. On perusal I found that the prosecution case heavily relies on a confessional statement of the accused No.1 / Sanjay which was recorded by the learned Judicial Magistrate (First Class), Sangamner, it is apparent that before recording the actual confession, due procedure prescribed under Section 164 of Cr.P.C was followed by learned Magistrate. The accused No.1 then narrated the facts of the case and explained as to how the offence was committed. He said that at the directions of accused No.3 Rajendra, he picked up victim -a boy of five years- from his house and took him away. He said, he waited there for the accused No.3 to come. The accused No.3 thereafter came there riding a motor cycle and took away the victim boy. He then said, he even joined the search for the boy which was started by the family members of the boy after his disappearance. He also narrated as to how the accused No.3 also took part in such search. He then said that after few months, accused No.2 asked him to write two letters in respect of kidnapping of the boy and addressed them to the boy’s father. He said he then posted those letters from different towns. 7 These letters were intercepted during the investigation and were sent for opinion of hand writing expert. The expert gave his opinion that the hand writing on these letters belonged to the accused 4 No.1. 8 In addition to this, the prosecution also placed reliance on a statement of one witness by name Dilip Chillap who said that at the relevant time, he saw the accused Nos. 2 and 3 carrying a young boy on their motor cycle. He also explained as to why he did not disclose this information when the search for the boy was in progress and why he delayed the disclosure of this information to the police etc. 9 As said above, for framing of charge besides the confession of the accused No.1, there is hardly any material before the Court. So, the question is whether the confession of one accused can be used against the other accused for framing of the charge? The answer is in affirmative. This conclusion is based on certain observations made by Supreme Court in the case of Kashmira singh versus State of Madhya Pradesh reported in AIR 1952 Supreme Court page 159. This was case of murder in which the prosecution placed reliance on a confessional statement of one of the co-accused. The question was whether the confessional statement of the accused can be used against the co-accused. Following observations of the Supreme Court would go to show that even for the purpose of convicting a co- accused, confession of other accused can be used as relevant material. Para 9 and 10:- “(9) In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty 88Cal. 559 at page 588 where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused "or, to put it in another way, as Reilly J. did in In re Periyas- wami Moopan 54 Mad, 75 at page 77 "the provision goes no further than this-- where there is evidence against the co-accused sufficient, if 5 believed, to support his conviction, then the kind of confession de- scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence." 10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.” 10 In view of these observations, it is clear that at the stage of framing of the charge, if not at the time of appreciating the evidence finally, the contents of confession can be used against the co-accused for framing of the charge. 11 The above mentioned gist of the confession read along with witness Chillap’s statement, clearly prima facie established that there was a meeting of mind between the accused for kidnapping the boy. So, they can be charged under Section 120-B of Indian Penal Code. 12 In view of the conspiracy, apparently the accused committed offence of kidnapping and then the accused Nos. 1 and 2 prepared and sent letters to the father of the victim. These letters were designed to mislead search of the victim and amounted to giving 6 false information for screening the real offenders. Thus, the respondent / accused can also be charged under Section 201 of Indian Penal Code. 13 The last question is whether the respondents can be charged under Section 302 of Indian Penal Code? It was submitted on behalf of the respondents that if the dead body of the kidnapped boy could not be found, they could not charged under Section 302 of Indian Penal code. This argument is not acceptable in view of the settled law that in a trial for murder, it is not necessary to establish the finding of the dead body. The fact of the death of the boy in this case should be established like any other facts because not in all cases the dead body of the missing person could be traced. This conclusion is based on the judgment of Supreme Court in the case of Manikumar Thapa Versus State of Sikkim reported in 2002 S.A.R. (Criminal) 897. 9. In view of this, both these proceedings shall succeed. ORDER a) Both the proceedings are allowed. b) The impugned order passed by Ld. Addl. Sessions Judge, Sangamner, District Ahmednagar, in Sessions Case No. 8/2000 dated 30/01/2006 is set aside. c) The learned Additional Sessions Judge is directed to alter the charge and frame the charge under Section 302, 201 and 120-B of Indian Penal Code against the respondents/accused. d) At the request of respondents’ advocate, 7 effect of this order is stayed for a period of eight weeks from the date of signature on the judgment. [A.V. NIRGUDE, J.] ts k/ok