1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 1382 of 2002. (Old Criminal Appeal No.1029 of 2002) Raju @ Doctor Vyankatswami .. Appellant v/s. The State of Maharashtra ..Respondent Ms. Racheeta Dhuru for Appellant. Smt.V.R.Bhosale, APP for State CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. RESERVED FOR JUDGMENT : 11th March, 2010. JUDGMENT DECLARED ON : 31st March, 2010. JUDGMENT (PER R.Y.GANOO, J.) : 1. The present appellant, Somnath Subhash Godse, Rufas John Francis, Yogesh Nandu Yadav (Gavali) and Naresh @ Bunty Hari Sasane were tried in Sessions Case No.95 of 2001 by learned First Adhoc Sessions Judge, Nashik (hereinafter referred to as the learned trial Judge) for the offence punishable under Section 120-B, 364, r/w. 120-B in the alternative u/s. 364 r/w. Sec. 34. U/s. 387 r/w. Section 120/B in the alternative u/sec. 387 r/w. 2 34, U/s. 302 r/w. Section 120-B, in the alternative under Section 302 r/w. Section 34 , under Section 201 read with Section 120-B, in the alternative r/w. Section 34 of IPC. 2. The learned trial Judge by his Judgment and Order dated 30.8.2002 convicted the present appellant, Somanath, Rufas and Yogesh for having committed offences punishable under Section 302 r/w. Section 120B, in the alternative r/w. Section 34 of IPC and each of them was sentenced to suffer imprisonment for life. They were also convicted under Section 364 r/w. 120-B in the alternative r/w. under Section 34 of the I.P.C. and sentenced to suffer R.I. for a period of five years each and to pay a fine of Rs.5000/- each i.d. to suffer further R.I. for six months each. They were also convicted under Section 387 r/w. Section 120-B in the alternative r/w. Section 34 of the IPC and sentenced to suffer R.I. for a period of five years each and also pay fine Rs.5000/- each i.d. to suffer further R.I. for six months each. They were also convicted under section 201 r/w. Section 120-B in the alternative read with section 34 of the IPC and sentenced to suffer R.I. for two years, each. 3. The learned trial Judge did not impose separate sentence in respect of 3 offence punishable under Section 120-B of I.P.C. though they were found guilty and convicted of the said offence. It was also ordered that substantive sentences imposed upon the appellant and co-accused would run concurrently. Orders regarding disposal of the property were also passsed. The learned trial Judge acquitted Naresh @ Bunty of all the chrages. 4. Being aggrieved by the aforesaid judgment and order dated 30.8.2002, the appellant, Somnath, Rufust and Yogesh filed Criminal AppealNo.1029 of 2002 so as to challenge the said judgment and order of conviction and sentences imposed upon them. By order dated 14.12.2009 passed by this Court, Criminal Appeal No.1029 of 2009 was separated and appeal filed by the present appellant was ordered to be numbered as Criminal Appeal No. 1382 of 2002 and appeal filed against the co-accused Yogesh Nandu Yadav (Gavali) was ordered to be numbered as Criminal Appeal No. 1383 of 2002. The appeal filed by Somnath and Rufas was retained as Criminal Appeal No.1029 of 2002. 5. By separate Order passed by this Court in Criminal Appeal No.1383 of 2002, the appeal filed by the co-accused Yogesh Nandu Yadav came tobe 4 disposed off. Criminal Appeal No.1029 of 2002 filed by Somnath and Rufas is kept pending as they are absconding. The aforesaid Criminal Appeal filed by Original Accused No.1 Raju @ Dr.Venkatswami has been heard by this Court at length and that is how this judgment is being dictated so as to dispose of the Criminal Appeal No.1382 of 2002. 6. The gist of prosecution case is as under: Ramesh Hemrajani P.W.18 and Mona Ramesh Hemrajani P.W.1 are husband and wife and they had a son by name Akshay @ Sonu Ramesh Hemrajani aged about 6 years. They used to reside at flat in a building complex known as Konark Vihar, Nasik Road. The present appellant and co-accused were friends and that present appellant knew said Ramesh Hemrajani, P.W.18 and his family members. Said Ramesh Hemrajani P.W. 18 had agreed to sell his car to the present appellant and according to the prosecution the present appellant along with co-accused, on 4.12.2000 or thereabout at Nashik Road entered into a conspiracy to kidnap Akshay from the lawful guardianship of Ramesh and Mona Hemrajani. They also entered into conspiracy so as to commit the offence of extortion and to get money from the parents of said Akshay . They also entered into conspiracy to commit murder of Akshay. According to prosecution, Akshay had not 5 attended the School on 4.12.2000 as he was not keeping well and that the present appellant visited the house of Ramesh Hemrajani P.W.18 on 4.12.2000 in the evening at about 6.30 p.m. knowing full well that Ramesh Hemrajani would not be in the house. According to the prosecution the appellant had gone to the house of Ramesh Hemrajani P.W.18 under the pretext of completing the transaction regarding purchase of the car from Ramesh. At the house of Ramesh, P.W.18, Mona P.W.1 is said to have admonished Akshay and therefore Akshay started weeping and at that point of time appellant gave currency note of Rs.10/- to Akshay asking him to go and purchase chocolates. Akshay left the house and went down to the ground floor. According to the prosecution, Akshay purchased chocolates from the shop by name Shubham Medical Store owned by Kishore Chowdhary P.W.19 and thereafter he did not return to his house. According to the prosecution, Indira S. Dhomse P.W.5, friend of Mona P.W.1 had visited her house and at that time she had noted the presence of the appellant in the house and that the deceased was not in the house. Another witness by name Shobha V. Ambre, P.W.6 had visited her house, noted the presence of appellant and presence of Akshay was also noted. According to the prosecution both these witnesses had noted the blue Maruti Car standing near the gate of the buildingcomplex where Ramesh used to 6 reside. According to the prosecution when Akshay did not return home, Mona P.W.1 started searching him and at that point of time she received a telephone call. The caller enquired about her husband i.e. Ramesh P.W.18. After knowing from Mona that Ramesh was not present in the house, he informed her that Akshay was in their possession and if she would inform the police, they would kill Akshay. While hearing this threat Mona could see the telephone number on the Caller I.D. At that time Mona wanted to know as to who was the caller, but instead of getting the reply, telephone was disconnected. On getting call and consequent threat she came down and informed 2-3 persons from the neighbourhood about the call which she received. Thereafter she called back the said number, namely 459962 and at that time she realised that the said telephone was installed at a telephone booth of P.W.8 Samer Batliwala and thereafter she realised that Akshay has been kidnapped, and that is how, she on 4.12.2000 filed the F.I.R. at Exhibit 60. Crime was registered under Sectin 363, 506 of IPC vide C.R.No.376/2000. In the meantime the neighbours of Mona, P.W.1 contacted Ramesh P.W.18 who was at Nanded and informed about kidnapping of Akshay. Ramesh P.W.18 contacted his house at about 8.00 or 8.30 p.m. Ramesh came to Nashik at his residence on the morning of 5th December, 2000. At about 2.00 p.m. he received telephone call from 7 Mumbai -022 4019380 . The caller disclosed his name as Sameer and demanded money from Ramesh P.W.18 by way of ransom to the tune of Rs. 20 lakhs. Ramesh P.W.18 was also threatened that if they approach the police, their son would not remain alive. Ramesh approached police and apprised them about the threat which he had received. Thereafter, he was acting on the instructions of the police. The police, after registering the FIR at Exhibit 60 had proceeded to investigate the matter. The police had eventually arrested the present appellant and the aforesaid co-accused in connection with the aforesaid crime, registered vide FIR Exhibit 60. In the course of investigation, the police realised that Akshay has been killed and the body of Akshy came to be recovered under panchanama vide Exhibit 62, 63 and 64 being panchanama dated 18.12.2000. Further steps as regards investigation were conducted. 7. In the course of investigation following important events had taken place, namely panchanama dated 5.12.2000 Exhibit 37, was recorded as regards the Scene of Offence namely Konark Vihar Society, Jail Road, Nashik, Bills of telephone issued by Neelam STD Booth, Mumbai, came to be seized under panchanama Exhibit 39. A Maruti Car bearing No. MAM 2039 was seized under panchanama dated 17.12.2009 at Exhibit 40. 8 Inquest panchanama was conducted on 18.12.2000 vide Exhibit 65. Flat of father of accused No.4 was searched vide panchanama dated 18.12.000 at Exhibit 70 and certain wrappers of chocolates were seized and taken charge of. The receipt purported to be received showing purchase of bag was found. The post mortem notes are at Exhibit 102. The Medical Officer who conducted the post mortem has observed the following external injuries on the body of Akshay since deceased “ Ligature mark around the neck i.e. linear string impression, horizontal, below the thyroid cartilage about 12 X 1 cm, encircling the neck. On dissecting the ligature mark, there is a congestion of the neck muscle and contusion of the neck vessels. Tracheal rings and larynx are congested below the ligature mark. There is fracture of the tracheal rings below the ligature mark.” The said injuries were reported to be ante mortem. As per the Post Mortem report cause of death reported was “Cardio Respiratory arrest due to Asphyxia due to strangulation.” Keys of the flat of accused No.4 came to be seized under panchanama Exhibit 42. It may be mentioned that in the course of investigation there was no recovery or discovery at the instance of the appellant. 8. Taking the overall view of the case put up by the prosecution, it is 9 observed that according to the prosecution at the instance of the present appellant, Akshay was pursuaded to go down from his residence in the evening of 4.12.2000 and that the present appellant along with co-accused kidnapped Akshay, attempted to extort money from Ramesh P.W.18 and when they realised that monies are not forthcoming, Akshay was murdered. His dead body was buried. It is the case of the prosecution that the present appellant, in the company of other accused committed offences for which they were required to face trial. Thus, the prosecution case was based on circumstantial evidence. 9. It is to be noted that Mona P.W.1 had friends by name Indira S. Dhomse, P.W.5 and Shobha V.Ambre P.W.6. These two ladies had visited the flat of Mona P,W.1 in the evening of 4.12.2000. These witnesses speak of presence of the Maruti Car bearing NO.MAM 2709 within the premises of Konark Vihar Society. This car came to be seized in the course of investigation and Santosh K. Godse P.W.7 has narrated as to how the said car was in the possession of the co-accused Somnath. According to the prosecution, Akshay was carried away in the said car. The dead body was recovered at the instance of co-accused Yogesh vide Panchanama Exhibits-62, 63 and 64. Prosecution has in support of its case examined as 10 many as 30 witnesses . One Mr. Sujit Dinkar Jagtap, a person carrying on business of Video shop was examined as court witness. No witness was examined on behalf of the present appellant. 10. Learned Advocate Ms. Dhuru appearing on behalf of the Appellant had advanced following submissions to press the appeal. 11. According to learned Advocate for the appellant, taking the prosecution evidence as it is, the role alleged against the present appellant is, the present appellant went to the residence of Ramesh P.W.18 in the evening of 4.12.2000 knowing full well that Ramesh P.W.18 was not in the house and that his wife Mona P.W.1 and Akshay would be in the house. According to her, the witnesses examined by the prosecution, namely Mona P.W.1, Indira Dhomse P.W.5, Shobha Ambre P.W.6 may at the most go to show that the appellant had visited the house of Mona P.W.1 and the appellant had handed over the currency note of Rs.10/- to Akshay and asked him to go and get the Chocolates. According to her, even if the evidence of aforesaid witnesses is seen as it is, except handing over the currency note of Rs.10/- to Akshay and asking him to go and get the choclate from the nearby shop, there is no material whatsoever to say that the appellant had 11 committed any act for which he has been convicted. According to her there is no material whatsoever to say that the appellant entered into conspiracy with the co-accused. She had submitted that even if it is accepted for a moment that the appellant was a friend of the co-accused, and that he had also introduced all those co-accused to Ramesh, P.W.18, there is no material whatsoever to show that the present appellant was any way connected with co-accused Somnath and others as regards kidnapping of Akshay and subsequently causing his death and burying him as alleged. According to the learned Advocate for the appellant, certainly the overt act alleged against the appellant, namely handing over currency note of Rs.10/- and asking Akshay to go down and get chocolate by itself cannot be considered as an overt act so as to say that Akshay came to be kidnapped by the appellant. She further submitted that the prosecution had introduced the story of presence of Maruti Car nearabout the entrance of the complex by name Konark Vihar Society, where Ramesh was staying, as also the seizure of car from the possession of Santosh Godse P.W.7. The prosecution has not been able to place on record any material to say that the appellant was responsible in getting the said car at Konark Vihar Society and taking Akshay in the said car as a part of kidnapping. According to learned Advocate for the appellant, even if the evidence placed before the Court by 12 the prosecution that the said car was found for some time at the entrance of Konark Vihar Society is accepted, that by itself is not sufficient to say that the appellant had participated in the conspiracy of kidnapping Akshay and actual kidnapping of Akshay. She had submitted that the investigating agency has been able to collect the evidence to say that Santosh P.W.7 had entrusted the said Maruti Car to the co-accused Somnath, still there is no evidence to say that the said car was brought at Konark Vihar Society by the present appellant and or the appellant and some other persons including any of the co-accused. Learned Advocate for the appellant had submitted that the prosecution evidence taken at its best, led through Mona P.W.1, Indira P.W.5, Shobha P.W.6 may at the most go to show that the appellant visited the flat of Ramesh P.W.18 on 4.12.2000 in the evening handing over the sum of Rs.10/- to Akshay and asking him to go to get chocolates. According to her none of the prosecution witnesses involve the appellant in any manner whatsoever in the incident of kidnapping of Akshay and his subsequent murder. She had further submitted that evidence of Indira P.W.5 would go to show that when Akshay left the house to get chocolates the appellant was in the flat and as such he could not be linked with the incident of kidnapping of Akshay. Learned Advocate for the appellant submitted that the prosecution has failed to prove that the appellant kidnapped Akshay 13 by joining hands with co-accused and then committed murder of Akshay and buried his dead body. 12. Ms. Dhuru had taken us through the impugned judgment and had criticized the judgment and submitted that the learned trial Judge arrived at the final conclusions to convict the appellant under various sections by conjucture and not on the basis of evidence. According to her, learned trial Judge failed to appreciate the evidence in the proper perspective and according to her the learned trial Judge gave emphasis on the acquaintance of the appellant with Ramesh P.W.18 and Mona P.W.1 introducing other accused with Ramesh and Mona. He erred in coming to the conclusion that but for the appellant entering the house in the evening of 4.12.2000 and giving the sum of Rs.10/- and asking Akshay to go out and buy chocolates facilitated his kidnapping. 13. Ms. Dhuru submitted that conviction of the appellant under various sections should be set aside and he should be acquitted of all the charges for which he was convicted. 14. Learned APP Mrs. Bhosale, appearing on behalf of the State opposed 14 the submissions advanced by Ms. Dhuru. According to her the present appellant gave Rs.10/- to Akshay and saw that Akshay left the house which facilitated the kidnapping of Akshay and further action on the part of the appellant and co-accused. According to her, present appellant played prime role qua Akshay, but for which it was not possible for the appellant and the other co-accused to commit the various offences. Learned Advocate Smt. Bhosale further submitted that the present appellant knew that Ramesh P.W. 18 was out of Nashik on 4.12.2000 and that Akshay and his mother Mona P.W.1 i.e. wife of Ramesh would be in the house. According to her, the appellant and the co-accused had planned their mission as regards kidnapping the child Akshay and then try to extort money from Ramesh P.W.18. Learned Advocate Smt. Bhosale had submitted that appellant knew Ramesh and Mona as family friends and evidence of Mona-P.W.1 shows that all the accused knew Ramesh and his family members. According to her, the appellant and the co-accused took the advantage of this situation to fulfil their plan. 15. Smt. Bhosale had further submitted that the present appellant had visited the flat of Mona P.W.1 in the afternoon and at that time one person by name Noor Mohammed was present in the flat and, therefore, the second 15 visit of the appellant in the evening at about 6.30 to 7.00 p.m. should be treated as an act of design on the part of the appellant in connection with the conspiracy hatched by the appellant along with others. 16. Smt. Bhosale, had further submitted that evidence of Ramesh P.W.18 would go to show that Ramesh P.W.18 had asked the appellant as to whether he would join Ramesh to go to Nanded and the appellant had declined to join him. According to her this would clearly go to show that the appellant knew that Ramesh P.W.18 was out of Nashik and therefore there was no reason for the appellant to visit the house of Ramesh P.W.18 on 4.12.2000 in connection with the purchase of vehicle owned by Ramesh P.W.18. She had further submitted that the second visit of the appellant at the house of Ramesh P.W.18 and handing over the sum of Rs.10/- to Akshay and inducing him to go out of the house to purchase chocolate was a calculated act of the appellant towards kidnapping of Akshay. Learned Advocate Smt. Bhosale had further submitted that but for Akshay leaving the house in the evening it would have been impossible for the appellant and co-accused to kidnap the child and therefore the role of the appellant is to be seen from that angle and the appellant should be held responsible for further developments which took place after Akshay left the house. 16 17. Smt. Bhosale had therefore submitted that the learned Judge has taken correct approach on the basis of entire evidence of prosecution and that the learned trial Judge was right in convicting the appellant for various charges for which the appellant had to face trial. She therefore submitted that the appeal filed by the appellant should be dismissed. 18. In the present case the prosecution has come out with a case that the appellant was successful in seeing that Akshay leaves the house in the evening of 4.12.2000 so that he could be kidnapped. It is also the stand of the prosecution that after Akshay left the house he came to be kidnapped pursuant to the conspiracy between the appellant and the co-accused as Ramesh P.W.18 did not comply with the demand of payment of Rs.20 lakhs and said Aksay came to be killed pursuant to the conspiracy and that is how the appellant and the co-accused were prosecuted for various sections including the offence of murder. It is true that the prosecution has examined as many as 30 witnesses to unfold its case. However, so far as the role of the present appellant is concerned, the evidence gets restricted to the following witnesses namely Mona Ramesh Hemrajani, P.W.1 mother of Akshay, Indira S. Dhamse P.W.5, friend of Mona, Shobha V. Ambre , P.W.6 17 friend of Mona, Ramesh Hemrajani P.W.18, father of Akshay, Kishore Choudhary P.W.19, owner of Shubham Medical Stores. Though the prosecution alleged conspiracy on the part of the appellant and co-accused in regard to the entire case starting from kidnapping of Akshay from the house of Mona P.W.1 upto the causing of death of Akshay and burying Akshay, the prosecution has been able to place on record evidence against the present appellant upto the stage of Akshay leaving the house of Mona P.W.1. There is no evidence to show that the present apellant took away Akshay from the building where Mona P.W.1 was residing or from the complex Konark Vihar or the place nearby the said complex. If the evidence of Mona P.W.1 , Indira P.W.5 and Shobha P.W.6 is perused, it is clear that the appellant had visited house of Mona P.W.1 in the evening at about 7.00 to 7.15 and during said visit handed over the a currency note of Rs.10/- to Akshay and asked him to purchase the chocolates. Akshay left the house for the purpose of buying chocolates. Evidence of Kishore Choudhary P.W.19, proprietor of Shubham Medical Stores shows that his shop is opposite Konark Complex and Akshay purchased the chocolates from him and went towards the gate of Konark Complex. This will clearly show that except handing over the sum of Rs.10/- to Akshay and asking him to go down and purchase chocolate no other role was played by the 18 appellant in the entire episode. It is true that prosecution has through the evidence of Indira P.W.5 and Shobha P.W.6 sought to introduce the case that Maruti Car bearing NO.MAM 270 with the words painted Jai Matadi was found standing near the gate of Konark Complex. Indira P.W.5 and Shobha P.W.6 have identified the maruti car after it was seized vide pachanama dated 17.12.2007 at exhibit 40. They have identified said car as standing at Konark Complex in the evening of 4.12.2000. However, that by itself would not go to show that the present appellant was concerned with the said car, because the prosecution has not been able to show that Akshay was carried in the said car soon after he purchased the chocolates from Kishore Chowdhary P.W.19. It is true that Santosh Godse P.W.7 has stated that co- accused Somnath Godse was put in possession of the said car in the evening of 4.12.2000. There is no evidence to show that the said car was used for carrying Akshay from the Konark Complex or the spot nearby for the purpose of implementing the alleged conspiracy and the appellant left Konark Complex by the said car. 19. In order to ascertain the role of the present appellant and whereabouts of the present appellant at or about the time when Akshy left the flat, one can go through the evidence of Mona P.W.1., Shobha P.W.6 and Indira P.W.