1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.690 OF 2006 Sunil Nagnath Gite ..Appellant Age : 19 yrs, Occu : Plumber R/o. Kondaji Wadi, Taluka Bhiwandi, District Thane V/s. The State of Maharashtra ..Respondent Mr.Rajan Salvi, Advocate, for appellant Mrs.M.M.Deshmukh, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 5TH MAY, 2008 JUDGMENT (K.U.CHANDIWAL, J.) . The original accused No.2 Sunil Gite has challenged the order of conviction recorded in Session Case No.95 of 2000 by the learned Additional Sessions Judge, Thane, dated 2nd December, 2002, whereby the accused/appellant and the accused No.1 were convicted for the offences under Sections 363, 364, 302, 384, 387, 201 read with 34 of the Indian Penal Code and each one of them was 2 sentenced to suffer R.I for a period of seven years and fine of Rs.600/- for the offence punishable under Section 363 read with Section 34, to suffer R.I. for a period of ten years and to pay fine of Rs.600/- in default to suffer further R.I. for six months for the offence punishable under Section 364 read with 34 of the Indian Penal Code, to suffer R.I for three years and to pay fine of Rs.300/- for the offence punishable under Section 384 read with Section 34 of the Indian Penal Code, to suffer R.I for seven years and to pay fine of Rs.600/- for the offence punishable under Section 387 read with Section 34 of the Indian Penal Code, to suffer R.I. for life and to pay fine of Rs.1000/-, to suffer R.I. for one year for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, to suffer R.I. for seven years and to pay fine of Rs.600/- for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code. 2. The records of this Court indicate that accused No.1 Yuvraj has not preferred any appeal challenging the conviction and sentence. The learned A.P.P during arguments informed that 3 accused No.1 Yuvraj expired in jail on 7th October, 2006. 3. The accused No.1 Yuvraj and accused No.2 Sunil along with absconding accused Bapu Sahebrao Shirsat on 14th March, 1999 at 10.30 A.M. kidnapped Sohan Pappu Pawar (a minor four years old) while he was playing with accused No.1 Yuvraj near by his house. Then the accused made phone call between 2nd April, 1999 to 4th April, 1999 from Super Egg Centre, Shantinagar and demanded ransom of Rs.1,00,000/- from the complainant and threatened the complainant if the amount is not paid, Sohan will be eliminated. The ransom was to be placed at Chavindra Road, New English School in a ditch near the road in order to secure the release of said Sohan. The accused in furtherence of their common intention and knowingly killed said Sohan on 14th March, 1999 by taking him to Kawali hills in a jungle near Bhiwandi. 4. Since the complainant informed the police about receiving phone call from anonymous person police tried to locate as to from where such calls were made and such phone calls were made to the 4 phone numbers 56216 and 59556. In order to dodge kidnappers, police got prepared six bundles of papers of the size of currency notes to which they placed two currency notes of Rs.500/- denomination, at the top and at the bottom. The other five bundles were containing two real currency notes of Rs.100/-. These bundles were given to the complainant which he complied and carried to the spot but the accused did not collect the same on 3rd April, 1999. On 4th April, 1999 the complainant Pappu Pawar informed police having again receiving phone call from those unknown persons repeating the demand. Same was recorded in writing. 5. The complainant went ahead at the instance of police and kept the bundles near the pit as pointed by the collar and he pretended move. The police followed the complainant by keeping distance and by different vehicles in the Court yard of New English School with panch witnesses. After few minutes accused No.2/appellant alighted from a Rickshaw and went near the pit. The accused No.2 lift the bag containing currency notes. He was immediately apprehended and police asked him as to what the bag 5 contained, where upon the accused No.2 opened the bag and showed the bundles which were kept by the complainant. The panchnama of the proceedings (Exh.16) was made by the police officer and signed by panch witnesses. The accused No.2 was put under arrest in the same night of 4th April, 1999 at 8.35 P.M. The witnesses have identified accused No.2 Sunil before the Court. The deceased accused No.1 was in fact put under arrest on the same day. 6. P.W.13 referred about a public notice with photograph of Sohan flashed at Bhiwandi and other police station and furnished contact numbers to facilitate any useful information communicating about kidnapping of Sohan. 7. At the instance of the accused No.1 Yuvraj recorded at Exh.17 after travelling distance of 3-4 Kms police and panch went with him to a Hill with height of 20 feet. The accused No.1 pointed the spot where police located five skull bones two leg bones, two hand bones of a small boy with other articles like T Shirt and apparels. All these 14 articles were taken charge under panchnama Exh.18. The 6 complainant Pappu Pawar father of Sohan, identified T Shirt and another Shirt found on the said place to be belonging to his son Sohan. Then the articles were packed. P.W.4 witnessed all these activities, signed the panchnama. At the instance of accused No.1 Yuvraj on 9th April, 1999 a red coloured handkerchief was recovered from his house under panchanama Exh.25 and Exh.26. The other incriminating articles were sent to the C.A by forwarding letter Exh.50. The C.A.reports Exh Nos.61 and 62 were collected. 8. On 14th April, 1999 the accused No.2 took police and panch to different telephone booths from where he made telephone calls namely Bharat Narayan Kamuddin, Ashok Anwar Patel, Chandrakant Patil, Shaikh Shail Ahmed and Fayaz Ahmed. 9. On 14th April, 1999 Chandrakant V. Patil, proprietor of S.T.D. Booth having phone No.37570, produced one small diary, one inland letter and xerox copy of the agreement to sale of land which were taken charge under panchanama (Exh.23). These articles 18 to 20 belongs to accused No.2. On 15th April, 1999 the accused No.2 7 took police and panch to telephone S.T.D booths namely Sandesh Communication Telephone Numbers 324392 and 326969, Balaji Communication having phone No.1938 and Rickshaw Chalak Sanghatana having phone number 326900. The concerned records from STD Booths were taken charge. 10. The accused denied their involvement from any angle. They did not dispute acquaintance with P.W.1, P.W.2 or with Sohan. They have also suggested that some other person having rivalary with complainant Pappu may have killed Sohan. 11. In order to establish the case the prosecution has put in P.W.1 Pappu alias Anil Sadashiv Pawar. P.W.2 Sou.Sunita Pappu Pawar, wife of complainant and mother of Sohan. P.W.3 Bapu Kishan Pokrale is serving in egg shop which belongs to Sudam Ganpat. The telephone numbers as 56216 and at go down, telephone No.59556 were published for communication, contact concerning where abouts of Sohan. P.W.4 Sham Ramchandra Sambhavane in whose presence complainant informed the police 8 demand of ransom of Rs.1,00,000/-. P.W.4 accompanied police officer with six bundles. He saw accused No.2 Sunil getting down in the pit and lifted the said currency note bundles and then police rushed to him and caught accused No.2 when he was holding plastic bag which had six bundles. The panchnama Exh.16 was prepared. He has identified notes (Exh.16) in the Court with Note size blank papers and real currency notes. He also witnessed statement made by accused No.1 and went with him. P.W.5 Nagnath Dnyandeo Sutar acted as panch on 16th March, 1999 when the place was shown by accused No.1 Yuvraj. P.W.6 Rajendra Sandeep Matal acted as panch on 13th April, 1999 as the telephone booth owner produced one inland letter , Agreement and diary taken charge under panchnama Exh.23. P.W.7 Vilas Malikaarjun Deokar acted as panch on 9th April, 1999 at the instance of accused No.1. In the presence of P.W.7 a handkerchief at article 17 was taken charge from his room under panchnamas Exhs.25 and 26. P.W.8 Shantilal Ganeshlal Jain supplied currency note size paper bundles. At the instance of police officer on 3rd April, 1999 he supplied six bundles of blank papers (Article 16). P.W.9 Muktaf Ahmed Abdul Kadir Shaikh carries 9 business of S.T.D.Booth namely “Sandesh Communication” having telephone number 24293. He has identified accused No.2 to be the person who had come on 4th April, 1999 and made a phone call. The S.T.D bills print out is placed by him which at Exh.30. P.W.10 Raju Ramkrishna Barapatre is a Junior Telephone Officer and at the instance of police, phone calls made to phone numbers 56216 and 59556 were tapped from 16th March, 1999 and on the demand of police they gave information as to the calling numbers to the telephone numbers. He gave office copy (Exh.37) to indicate the details of calling number. According to him, the phone calls from which calls were made to 59556 is reflected. P.W.11 Shaikh Shakil Ahmed Phaiyaz Ahmed runs a telephone booth under the name and style “New Super Telecom Communication” at Nizampura, Bhiwandi. Accused No.2 pointed his shop. He verified the record from his machine and found such phone calls were made from his S.T.D.Booth. A copy of register is at Exh.42. He has identified the accused No.2. 12. Before adverting to the evidence we accept that the bones 10 and skull pieces recovered at the instance of accused No.1 were not sent to the Forensic Expert, for examination of DNA testing which is Technology in forensic science to clinchingly establish that the bones were of Sohan. However, the evidence of P.W.1 complainant coupled with panchanama Exh.49 proved through panch Sham Sambhavane establish seizure of 12 bones. P.W.1 had identified the T-shirt, half shirt and half pant at articles 10, 11 and 15 which were of his son. The said articles were even identified in the Court by P.W.2 mother of Sohan in her respective evidence. The seized bones collected under panchnama Exh.49 sent to the Grant Medical College vide letter Exh.47, were analytically examined by P.W.12 Dr.Pravin Chunnilal Champaneri. According to P.W.12, as per Report Exh.45 the said bones received in a sealed wooden box on examining were analysed to be of human being between age group of 2 to 6 years, of single individual. The claim of defence about presence of teeth at the Jaw was also answered by P.W.12. It was a part of consideration for him while analysing age of the boy. In forensic science these changes are brought by X ray examination. Though, such changes in the bone varies from country to country however, such variation in India will not 11 be keeping yawning space in determination of age. However, P.W.12 was honest to accept that photograph of Sohan received from police could not match with skull pieces as the skull bones were in a broken condition. One cannot ignore that Sohan was aged about 4 years as proved by P.W.1 and P.W.2 and even not disputed by accused, and certified by P.W.12. The cumulative effect of evidence of P.W.12, P.W.1 and P.W.2 leads to irresistable conclusion that the human bones with apparels found on 4th April, 1999 in presence of panch witnesses were of Sohan, who after kidnapping was killed at the said place by both the accused and the body was left abandoned at such secluded area not visited by public. Death of Sohan is homicidal though, accused claimed, it was a act by some one else. 13. The defence claimed that somebody with enemical terms kidnapped Sohan. However, this is blatant false claim as it is established that accused No.2 Sunil made various phone calls to the complainant Pappu for ransom to release Sohan. Telephone number for contact was published at the instance of complainant at the local cable asking people to contact at phone numbers 59556 and 56216 12 which were installed at the shop Super Egg Centre. P.W.3 while working at the shop received such phone call on 15th March, 1999 when unidentified collar told that son of Pappu was missing. Consequently, P.W.3 informed the same to P.W.2 at her house and in the evening when P.W.1 returned he approached P.W.3. This was sufficient for P.W.1 to approach police on 16th March, 1999 to lodge missing report Exh.10 informing that somebody has kidnapped his son Sohan and they are making phone call which was received by P.W.3 on the earlier date. Based on such missing report, C.R.No.1- 49/1999 under Section 363 was recorded by PSI Mali (P.W.13). 14. The evidence discussed above leads no doubt to believe that Sohan was kidnapped for ransom from lawful custody of his parents, P.W.1 and P.W.2. The accused No.2 made various phone calls to P.W.1. On 4th April, 1999 he was caught by P.W.13 in presence of panch witnesses while lifting the plastic bag containing bundles resembling to currency notes. The phone calls made by accused No.2 were attended by P.W.1 on 2nd April, 1999 at Super Aanda Centre wherein accused No.2 made a demand of 13 Rs.1,00,000/- for release of Sohan. This fact was informed by P.W.1 to police and police officer made arrangement for the notes and the papers were cut to size at the shop of P.W.8 and six bundles were prepared by him at the instance of police. 15. At the instance of accused No.2 as commanded on phone, P.W.1 again kept the bundles at the said place/pit and he was assured to get back his child, as indicated earlier in the trap accused No.2 was apprehended at 6.00 to 6.30 P.M in presence of panch with the six bundles. The six bundles are identified by the panch, complainant and P.W.8. 16. P.W.9 Muktar Ahmed of “Sandesh Communication” has identified accused No.2 to be a person who made a phone call on 4th April, 1999 and for which Rs.15/- were charged. Such phone diary maintained by P.W.9 at his shop is produced at Exh.13. The phone calls made from his Booth are reflected the phone call numbers 59556 and 56216 of P.W.3. Naturally such phone calls were made by the accused No.2 for Sohan for ransom. P.W.11 Shaikh Shakil 14 Ahmed Phaiyaz Ahmed has identified the accused No.2 and informed that the accused had come to his shop with police and police having shown him telephone exchange record he verified the same and as per the entry No.62 dated 4th April, 1999 the phone call to phone number 59556 was made by accused No.2. The said entry is at Exh.42. However, he did not clearly identify accused No.2 in his evidence. P.W.6 acted as a panch when the accused No.2 went to the shop of one Chandrakant Vitthal Patil and made phone call from Telephone Numbers 37570 and 59556 , however, since accused No.2 was short of money he tendered his diary and agreement which bears his name and signature. The same is at Exh.23. The owner of booth Chandrakant Vitthal Patil is not examined, it will not dilute recovery of these items. The accused No.2 has not offered any explanation as to how his property document or diary remain with Chandrakant Pawar, recovered at his instance in presence of P.W.6. There was no reason for the accused to tender his papers to the shop of Chandrakant which are produced by Chandrakant under panchnama Exh.23 proved through panch P.W.6 on 13th March, 1999. The print outs carried by Junior Engineer of Telecom Department (Exh.10) are 15 proved through the witness P.W.9. These aspects unerringly establish that accused No.2 was making phone call to P.W.1 demanding ransom. 17. Accused No.1 was already put under arrest at about 6.30 P.M. on 4th April, 1999 and thereafter, accused No.2 was arrested while collecting the notes. It is obvious, immediately after Sohan was kidnapped it was accused No.1 and accused No.2 in concert killed Sohan and threw the dead body at abandoned place and attempted to bury it under the stones. The accused No.2 made phone call time to time for ransom to the complainant P.W.1. The accused persons after kidnapping Sohan, threatened P.W.1 to make payment. However, when he saw said arrangement is not made, they eliminated said Sohan. 18. The offence for kidnapping for ransom is on the increase. The purport of Section 364A shows, even a individual person is included if the demand for ransom is made by accused. The act and manner of commission of offence reflect to the perversity of mind of 16 accused to the extent they have stopped down to make a quick earning, killed four years boy. 19. The evidence of P.W.1 will have to be scanned properly. He was a broken man, he was gittery, logic failed for him. The death of four years child crumbled the family of P.W.1 and he became recluse. It was a classic example of P.W.1 to unleash a fight against the accused and he indeed invited risk of approaching police in such exercise even lost his son due to the hineous act committed by accused No.1 and accused No.2. The accused after the death of said Sohan burried his dead body in order to prevent themselves from getting punished for the offence of murder punishable under Section 302 of the Indian Penal Code. 20. The Hon'ble Supreme Court in the case of Hanuman Govind Nargundkar V/s. State of M.P., reported in AIR 1952 Supreme Court 343 has observed as under :- “Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof 17 of those facts. Reliance was placed by the prosecution and by the Courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Ex.P-3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge, (1838) 2 Lewin 227) where he said : “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 ingeniouis 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 previouis 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 in the first instance be fully established, and all the facts so established should be consistently 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 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. In spite of the forceful arguments addressed to us by the learned Advocate- General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex.P-3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned 18 case.” On scanning entire evidence before us we find that role of both accused is fully established and there is no fault in the Judgment of conviction recorded by the learned Trial Judge, Thane. 21. Hence, the order. (i) Having considered the evidence, we are of the opinion that the ultimate conclusions arrived at by the learned Judge cannot be faulted. Hence, the conviction imposed on the Appellant is confirmed. (ii) The Appeal is dismissed. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)