TMI Blog2020 (4) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals does not lead to any inference of the arrest of A-1 on 1st September, 2014. Whether Common intention was terminated before the demand of ransom and death of victim? - HELD THAT:- In the present appeals, the facts speak volumes about the common intention shared by both the Appellants. Both the Accused planned the kidnapping and executed it together. A-1 called Dharmendra Yadav (PW-24), even before the victim could be kidnapped to make sure that the parents of the child were not at home. A-2 is the one who picked up the child from the gate of the Apartment building. They were together till at least 18:33 hrs. whereas; the tower location of the mobile of A-2 was Vinoba Bhave Nagar till 19.39 hrs., which is the area of the House of A-1. The conspiracy never came to an end when A-2 called Dr. Chandak (PW-1) demanding ransom, which was the reason of kidnapping the boy. Thus, the facts prove that both the Accused had a common intention to kidnap the child. Applicability of Section 106 of the Evidence Act - HELD THAT:- The prosecution has discharged the onus of proof beyond reasonable doubt. It was then for the Accused to rebut the presumption of any other intervening fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being perimortem. Sentence - it is argued that this Court has imposed a higher standard of proof for the purposes of a death sentence over and above beyond reasonable doubt necessary for criminal conviction similar to residual doubt - HELD THAT:- The argument is that since the Accused are young, aged about 19 years, and have no criminal antecedents, the sentence of death imposed upon them is not warranted. It is argued that A-1 surrendered at the first available opportunity and he was fully cooperative with the investigation, therefore, there are the mitigating circumstances to absolve them from noose - there are no merit in the argument that being young or having no criminal antecedents are mitigating circumstances. What is required to be examined is whether there is a possibility of rehabilitation and whether it is the rarest of the rare case where the collective conscience of the community is so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The manner of commission of murder when committed in an extremely brutal, grotesque, diabo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... home and inquired from Arun Parmanand Meshram (PW-31), the watchman of their housing society, Guru Vandana Apartment for short, 'Apartment' , who informed him that at about 3:45 pm, when he was sitting near the gate of the Apartment, an unknown, fair complexioned boy, aged about 20-25 years, wearing a red half sleeves T-shirt, full white pants with a white handkerchief wrapped around his face, came to him, riding a black scooty. This boy parked his vehicle near the footpath in front of the gate and asked Arun Parmanand Meshram (PW-31) whether Yug has come home. Arun Parmanand Meshram (PW-31) replied in the negative and asked him to go inside and find out for himself but the boy remained at the gate itself. He had worn the clothes (uniform) like that of the clothes of the employees of Dr. Chandak's clinic. After about 15 minutes, Yug, came in his school dress. He kept his school bag on chair meant for him and told Arun Parmanand Meshram (PW-31) to leave the school bag at his Apartment, who told him that he will require half an hour to do the same. Thereafter, he saw Yug going towards Chhapru Nagar Chowk along with the boy on his scooty. Arun Parmanand Meshram (PW-31) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 34 Indian Penal Code, A-1 and A-2 were sentenced to rigorous imprisonment for 7 years and to pay fine of Rs. 5,000/-. It is the said order of the learned Sessions Judge which was affirmed by the High Court. 6. The prosecution had led evidence of the boy, Yug, last seen in the company of the Accused from 16:15 hrs. approximately to 17:30 hrs. approximately on 1st September 2014. The post mortem was conducted on 3rd September 2014 between 12.00 hrs. to 13:45 hrs. by a team of three Doctors. Dr. Avinash Waghmode (PW-27) had been examined to prove the postmortem report (Ex. 103). The cause of death was found to be smothering and the time since death was 36 to 48 hours. There were as many as 26 injuries found on the dead body which included Injury Nos. 22 to 26 as post mortem injuries. Dr. Avinash Waghmode (PW-27) deposed that Injury Nos. 1-21 and 26 may have been perimortem injuries i.e. the injuries were caused during the activation and working of vital functions. With this background, the evidence of the prosecution is examined in the present appeals in the following manner: (A) The evidence of last seen (B) Discovery of incriminating facts (C) Demand of Ransom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bag when a maid-servant in the Apartment inquired about Yug's whereabouts. He informed her that Yug had gone to his father's clinic. After sometime, Dr. Chandak's driver came to the building and inquired about Yug as well. Arun Parmanand Meshram (PW-31) told him that Yug had gone to his father's clinic with one of its employees. Dr. Chandak was thereafter contacted and he returned from his clinic. Mrs. Chandak also rushed to the Apartment. Later, the Police arrived at about 18:00 hrs. and started inquiry. 9. Arun Parmanand Meshram (PW-31) received notice regarding the conduct of Test Identification Parade for short, 'TIP' in the Central Jail premises for 25th September, 2014. He identified the boy standing at Sl. No. 4 as the same youngster who came to the Apartment on a purple scooty and took away Yug, in the TIP so conducted. This boy disclosed his name as Arvind Singh (A-2) to the Officer who was present there. In cross-examination, Arun Parmanand Meshram (PW-31) deposed that Dr. Chandak returned from his clinic on the day of incident at about 16:45 hrs. He denied that he was tutored to give evidence in the case. He also denied that the Officer presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting on a purple scooty, would cause mischief to his vehicle. Biharilal Sadhuram Chhabariya (PW-17) deposed that the boy took out a white handkerchief and tied it on his face. After 10-15 minutes, when Biharilal Sadhuram Chhabariya (PW-17) came back down, after having lunch, the boy and his vehicle were not present. It is at about 17:15 hrs., he received a telephone call from his wife that Dr. Chandak's son was kidnapped by a person wearing a red T-shirt and riding a purple scooty. Biharilal Sadhuram Chhabariya (PW-17) rushed home at around 17:30 hrs. and at about 19:00 hrs., Dr. Chandak met him in the campus of the building. Biharilal Sadhuram Chhabariya (PW-17) informed Dr. Chandak that he had seen a boy of the mentioned description standing by the road outside the Apartment. 12. Biharilal Sadhuram Chhabariya (PW-17) was called for TIP on 25th September, 2014 in Central Jail, Nagpur. He identified the boy standing at Sl. No. 4 as A-2. In cross-examination, he deposed that on the day of incident, he returned home at around 15:45-16:00 hrs. and went back to his shop again after lunch at about 16:15 hrs. on his Scooter. He denied that he had not seen the boy wearing a handk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Hero Motor bike. (iii) The evidence of taking fuel for the Motorcycle by A-1 and A-2 with the kidnapped boy at petrol station 15. The next link of prosecution evidence is of the Accused being in the company of Yug at Sunder Auto Center, Bhokara, on Koradi Road. The prosecution examined Hitesh Tulsiram Rathod (PW-30), Shrikant Walmik Sharma (PW-35), Pratik Rathi (PW-48), Ajay Aba Salunke (PW-38), Chitra Sanjay Kamat (PW-47) and Madhuri Permanand Dhawalkar (PW-34) in respect of the CCTV camera footage of Sunder Auto Centre, Bhokara, Nagpur. 16. Ms. Madhuri Permanand Dhawalkar (PW-34) is the witness who had filled petrol in the motorcycle of A-1 and A-2. She deposed that on 1st September, 2014 at about 16:00 hrs. - 16:30 hrs., she saw that two boys came to the petrol pump to take petrol for their Hero Honda bike. A minor boy was seen sitting in between both the riders. She deposed that the boy who was driving the bike wore an almond shirt and that the pillion rider was wearing a red one. The minor boy sitting in between them wore a sky blue colour T-shirt. The boy who was driving the bike paid the money for fuel and thereafter they went away. She deposed that both A-1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They left school at about 17:15 hrs. on their bicycle for returning home. In doing so, they saw a motorbike parked on the road nearby the Pump House of Itangoti Lake. Divya Chandel (PW-9) deposed that the motorbike was in a stationary condition and three persons were sitting on it. She further deposed that the motorbike riders started the vehicle after seeing her and her friend and proceeded ahead towards them. The boy who was driving the bike wore an almond colour shirt and the pillion rider wore a red one. The boy in between both riders appeared to be in a sleeping condition. The motorbike riders proceeded towards the Patansaongi area. She deposed that all these events occurred at about 17:30 hrs. On 25th September, 2014, she was called for the TIP. She identified A-1 and A-2 as the persons who were the motorbike riders and Yug from the photograph produced by the Police. In cross-examination by A-1, she deposed the road on which the motorbike riders were passing on the day of the incident leading from Dhapewada to Patansaongi village. In cross-examination by A-2, she deposed that she had seen the motorbike riders from a distance of 15 feet approximately. She deposed that initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 and identified both A-1 and A-2 as the persons who were on the motorbike. He identified the clothes (Arts. No. 1, 2 and 19) which were on the person of A-1 and A-2 and the minor boy. He further deposed that Ex. 26 is the photograph of the same boy who was on motorbike by A-1 and A-2 on the day of incident. (B) Discovery of incriminating facts (i) Recovery of Dead Body 22. As per the prosecution, A-1 was arrested around 14:30 hrs. whereas A-2 was arrested around 16:30 hrs. on 2nd September, 2014. Mahesh Chandulal Fulwani (PW-28) is the witness of disclosure statement (Ex. 106) of A-1 along with Girish Malpani. Mahesh Chandulal Fulwani (PW-28) deposed that while passing from Lakadganj Police Station, he saw a crowd there which included some of his friends and, therefore, he stopped. The Police called him into the Police Station where the IO sought his consent to be a Panch. The Police personnel brought a person in the chamber of IO who disclosed his name as A-1 as well as his age and address. Mahesh Chandulal Fulwani (PW-28) identified A-1 as the person who was brought in the chamber of the IO. He deposed that he along with Girish Malpani; A-1, the IO and other polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the vehicles were taken in possession. 24. Sunil Kothari (PW-26) is a Panch witness of the disclosure statement of A-2. A-2 had disclosed that the blue T-shirt of the deceased was taken from his person and thrown it in the Rivulet located within the vicinity of the Village Lonkhairi. A-2 showed his readiness to point out such place. One Arun is another Panch witness of A-2's disclosure statement. A-2 led the Panches and the Police to the spot mentioned, where he had thrown the clothes and pointed out such place. The IO called the sweepers for proceeding towards the spot and instructed them to search for the clothes. After searching for about 45 to 60 minutes, a sweeper fished out a blue colour T-shirt from the Rivulet. A-2 stated that it was the same T-shirt of the deceased which was thrown by him in the Rivulet. 25. Harsh Prakashchand Firodiya (PW-29) is a witness of disclosure statement of A-2 made on 9th September, 2014 at about 19:00 hrs. (Ex. 111). The same was made in the presence of another Panch witness as well, one Sunil Ajitmal Kothari. Harsh Prakashchand Firodiya (PW-29) deposed that A-2 took the Police and the Panches to his house, at some distance from Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 hours. It has come on record that such number was that of a Public Call Office (PCO). However, it is not available on record as to who is the owner of the PCO was as well as who had seen the person making the call. The customer application form of phone No. 8380927706 is produced on record as Exs. 215/1 and 215/2 whereas the CDR is Ex. 214/1. There was a call at 20:38:03 hrs. of 31 seconds to Dr. Chandak (PW-1). Mohandas Mitharam Balani (PW-16) is the person who owns the PCO from where the second call was made. He deposed that there was a coin box telephone installed on the counter of his shop and that at around 20:30 hrs. on 1st September, 2014, a boy came to his shop on a bicycle, wanting to make a call from it. Mohandas Mitharam Balani (PW-16) saw that the boy was talking on the phone from his coin box said, Paanch Karod Leke Ana (Bring Five Crore Rupees). He also deposed that before he could pay more attention, the boy left the shop and went away on his bicycle. Mohandas Mitharam Balani (PW-16) thereafter received information about the conduct of a TIP on 30th October, 2014 at the Central Jail. He identified the person making the call from the persons present therein. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s friend. She deposed that A-1 disclosed to her that he was charging Rs. 100/- to Rs. 200/- more from Dr. Chandak's patients. She further deposed that A-1 told her that Dr. Chandak was paying him a meagre salary of Rs. 3000/- whilst taking lot of work. Sonam Meshram (PW-19) also deposed that A-1 abused Dr. Chandak and said that he would teach him a lesson. 34. It appears that A-1 had an ambition to be rich at the earliest. Such intention is proved by the prosecution examining Sandeep Katre (PW-8), another friend of A-1's. Sandeep Katre (PW-8) deposed that A-1 was always in a hurry to become an affluent person. He stated that on the day of Raksha Bandhan in 2014, A-1 came to his house with A-2. A-1 inquired from him as to when and in what manner his employer carries the cash from the office. Sandeep Katre (PW-8) shared with him the relevant time during which his employer carries the bag of cash. A-1 thereafter told Sandeep Katre (PW-8) that whenever his employer starts proceeding with cash out of the office, he should inform him on cellphone so that he would be able to intercept PW-8's employer and loot the cash from him. A-1 stated that such cash would be distribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her for marriage. However, she asked him how he would bear the expenditure of Rs. 2 lakhs to be incurred for her course, when he had previously disclosed to her that he left Dr. Chandak's employment as he was supposedly paying him a meagre salary. A-1 told her that she should not worry about the money as he would be earning huge amounts after completing a job. A-1 then told her that he was planning to abduct the son of a rich person. Sonam Meshram (PW-19) further deposed that on 1st September, 2014, she made call to A-1 from the cellphone of her room partner, but A-1 did not respond. At about 11:30 hrs., when she contacted A-1 again, he told her that he was busy in work. All these calls find mention in CDR of A-1. The record shows that calls were exchanged between Sonam Meshram (PW-19) and A-1 through the mobile of her friend and room partner at 07:31:55 hrs.; 08:45:56 hrs., 08:46:51 hrs., 11:36:46 hrs., 11:38:34 hrs. and 11:42:20 hrs. All these calls show tower location as that in Vinoba Bhave Nagar. There is also a call from A-1 to A-2 at 16:12:54 hrs. and the location of the tower is Guru Darshan Complex Chhapru Nagar, Lakadganj Nagpur. There are calls between A-1 and Ankus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. In one of the envelopes there were photographs of a vehicle whereas in the other three, there were photographs of a person for analysis. She assigned all the articles to Ajay Salunke (PW-38) for analysis in the forensic laboratory. Ajay Salunke (PW-38) prepared a report on 22nd November, 2014. He deposed that the CD had six videos files and such video files were continuous and not edited at any point of time. He matched the photographs on the CD with the photographs referred to by the Police. He prepared a report Exh. 160. As per the report, the person in the videos resembles the photographs (Ex. 2, 3, 4 and 5) i.e. the photographs of motor cycle, the two Accused A-1, A-2 and the deceased victim. 39. The CDRs of A-1 (Ex. 176/1) corroborate the six phone calls exchanged between A-1 and Sonam Meshram (PW-19) on 1st September, 2014 from 07:31:55 hrs. till 11:42:20 hrs., as deposed by Sonam Meshram (PW-19). Such call details further corroborate that Pankaj Khurpade (PW-15), an employee at Dr. Chandak's clinic had received a phone call from A-1 on his mobile wherein, A-1 inquired about Dr. Chandak and his wife. Such call was made soon before the kidnapping at 15:20:59 hrs. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in the area of Patansaongi lake which is about 26 kms and 33 minutes away from his house. Since he was at his house by 18:33 hrs., he must have left the area of Patansaongi lake latest by 18:00 hrs. No question has been put to A-1 in the statement Under Section 313 Code of Criminal Procedure that the deceased died before 18:00 hrs. It was argued that A-1 can be held guilty of an offence Under Section 302 Indian Penal Code only if death is proved to have been caused before 18:00 hrs. i.e. before he left the Patansaongi lake. Reliance was placed upon Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 and Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116. Further, a recent judgment of this Court reported as Reena Hazarika v. State of Assam (2019) 13 SCC 289 was also referred to, to contend that the statement of an Accused Under Section 313 Code of Criminal Procedure is required to be considered. Non-consideration therein would vitiate conviction. 43. It was argued that the deceased was sedated at the time of the act of his smothering, a fact made out from the CCTV footage played in the Court. However, the 13 abrasions on the face and neck of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m call was made at 20:38 hrs. It was argued that the intention of the Accused Under Section 34 Indian Penal Code must continue to exist till the completion of the crime of the offence. Reliance herein was placed upon Jai Bhagwan and Ors. v. State of Haryana (1999) 3 SCC 102 and Suresh and Anr. v. State of U.P. (2001) 3 SCC 673 46. Further, it was submitted that the argument that the victim died before 18:00 hrs. is an argument raised in appeal before this Court for the first time and, therefore, the prosecution cannot be permitted to change the manner of commission of crime. Reliance was placed upon Karanpura Development Co. Ltd. v. Raja Kamakshya Narain Singh, etc. AIR 1956 SC 446 and Sri Venkataramana Devaru and Ors. v. State of Mysore and Ors. AIR 1958 SC 255. 47. Learned Counsel for A-1 also disputed the recovery of the dead body pursuant to the disclosure statement suffered by A-1. It was argued that in such disclosure statement, no fact has been disclosed about the manner of causing death. The disclosure statement has to be recorded in the exact words used by the Accused as held by this Court in State of Karnataka v. David Rozario and Anr. (2002) 7 SCC 728 It was argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reason that she saw the motorbike from a distance of 15 feet as it would take only 2-3 seconds for the motorbike to pass through, therefore, it was highly improbable that she was able to see the faces of the motorbike riders. It was also argued that the dead body was recovered at the instance of A-1. A-2 remained near the bridge and did not take any part in the commission of the crime of murder of the minor child and, therefore, in all probabilities, the crime has been committed by A-1 between 17:30 hrs. to 18:00 hrs. to wreak vengeance upon the complainant. 51. It was also argued that veracity of demand of ransom by A-2 was doubtful. The FIR was lodged at 17:10 hrs. but the IO did not make any arrangement for the recording of the ransom call. The IO did not take the voice sample of the Accused for identification by Dr. Chandak (PW-1). A-2 was said to be identified by Mohandas Mitharam Balani (PW-16) on 30th October, 2014 after much delay. Further, the statement of Mohandas Mitharam Balani (PW-16) was also doubted, that he had heard A-2 raising a demand of ransom as a PCO would have some kind of privacy mechanism between the caller and the owner. 52. It was further argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at Qweta Colony in Nagpur. Manoj Thakkar (PW-4) deposed that the Police took personal search of the Accused in his presence and recovered the mobile phones. However, no cross-examination has been conducted that the personal search was done at any point earlier than the arrest. Still further, A-1 had made a call to N.T. Gosawi (PW-25) at 19:49:06 hrs. An Accused in custody will not be permitted to make a call to a Police official. It corroborates the stand of the prosecution that A-1 was arrested on 2nd September, 2014. Still further, the IO had admitted in the cross-examination that he called A-1 in the Police Station on 1st September, 2014 for investigation. He denied that A-1 was in police custody. He deposed that A-1 visited police station on the day after he had called A-1 on his cell phone. A-1 was called for inquiry as he was one of the former employees of the clinic of Dr. Chandak. 56. A witness is required to be cross-examined in a criminal trial to test his veracity; to discover who he is and what his position in life is; or to shake his credit, by injuring his character, although the answer to such questions may directly or indirectly incriminate him or may directly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a Rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. 58. Lord Halsbury, in a separate but concurring opinion, held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss-examination made on the Plaintiff's witnesses with respect to factum of execution of sale deed, PW 1 and PW 2 have not been cross-examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one's own version in cross-examination of opponent. The effect of non-cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. [Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., AIR 1958 P H 440] 16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60], it has been laid down that the matters sworn to by one party in the pleadings not challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution. But when an Accused relies upon the general exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the Accused and also throws a burden on him to rebut the said presumption. Under that Section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the court shall regard the non-existence of such circumstances as proved till they are disproved........ 62. In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563, this Court while examining an argument of the Accused that he was medically insane person, it was held that it is a fundamental principle of criminal jurisprudence that an Accused is presumed to be innocent and, therefore, the fact that the Accused was incapable of knowing the nature of his act, the burden of proving the existence of circumstances bringing the case within the exception Under Section 105 of Evidence Act lies on the Accused. It was held as under: 5. .....It is a fundamental principle of criminal jurisprudence that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lour T-shirt, A-1 was called for information. His presence in the Police Station on 1st September, 2014 was only as a suspect. He became an Accused only when he was arrested on 2nd September, 2014 at 14:30 hrs. 65. Mr. Chaudhary also pointed out that the CDR of A-1 (Ex. 176/1) shows that his mobile phone was always in the range of Police Station Lakadganj from 18:50 hrs. The best witness to seek information of his arrest was the IO. He denied the arrest on 1st September, 2014. The other witness who could be cross-examined was Manoj Thakkar (PW-4). But he was not cross examined in this respect. At this stage, it is not open to this Court to infer any such fact, in the absence of any evidence to the contrary on record. He had access to his mobile all through before his arrest on 2nd September, 2014. An Accused will not be provided access to mobile phone when in custody. He has called N.T. Gosawi (PW-25) at 19:49:06 hrs. on 1st September, 2014. In fact, the statement of DW-1, the mother of the A-1, contradicts the entire argument of A-1 voluntary going to police station on 1st September, 2014. She deposed that 4-5 policemen had taken A-1 from her house as per the information of Ank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he planned looting of cash. Such evidence is corroborated by Sonam Meshram (PW-19), the friend of A-1. The desire to get rich by whatever means was a driving force with A-1 to kidnap a young child of 8 years, who was a school going innocent child, who happened to be a son of well-to-do dentist couple. Initially, A-1 conspired with Sandeep Katre (PW-8) but on his developing cold-feet, he associated A-2 in his nefarious design to make money by the abduction of a young child. The conduct of A-1 in seeking assistance of Sandeep Katre (PW-8) and the calls exchanged between Sonam Meshram (PW-19) and A-1 shows the desperation of A-1 to kidnap for ransom. The intention to kidnap was only with a motive of becoming rich by obtaining a ransom. To achieve that motive, A-1 had associated A-2, a fact deposed by Sandeep Katre (PW-8) and Sonam Meshram (PW-19). A-1 and A-2 were together at different stages of the commission of the crime from almost 16:00 hrs. till almost 18:00 hrs., and later till 18:33:59 hrs., when both of them were at the house of A-1 in Vinoba Bhave Nagar. Such facts have come on evidence from the testimony of Arun Meshram (PW-31); Rajan Tiwari (PW-2); Rupali (PW-23)-the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the statement made by Punwan, Accused, in his confession to the effect that he was apprehended on 1st March, 1938 is very probably true . The IO in his statement before the High Court could not convince the Court that he had not arrested Punnu, Accused, till 6th March, 1938. But the facts in the present appeals does not lead to any inference of the arrest of A-1 on 1st September, 2014. ii) Whether Common intention was terminated before the demand of ransom and death of victim 72. The argument that the conspiracy terminated the moment, A-1 surrendered in the Lakadganj Police Station at 18:50 hrs. on 1st September, 2014, is again not tenable. In Nalini's case itself, it has been held as under: 662. ... It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that to apply Section 34 Indian Penal Code apart from the fact that there should be two or more Accused, two factors must be established: (i) common intention and (i) participation of the Accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual Accused, Section 34 Indian Penal Code will be attracted as it essentially involves vicarious liability but if participation of the Accused in the crime is proved and a common intention is absent, Section 34 Indian Penal Code cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case. In Suresh, this Court held that the concept of presence of the co-Accused at the scene is not a necessary requirement to attract Section 34 Indian Penal Code. The one line in the para can be read in isolation to argue that physical presence of an Accused is necessary. In fact, this Court held as under: 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all Accused persons, besides the ultimate criminal act because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. In Shambu Nath Mehra, this Court held that Section 106 must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the Accused could prove them, are all matters that must be taken into consideration. The Section cannot be used to undermine the well-established Rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. This Court held as under: 9. This lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the Accused and which he could prove without difficulty or inconvenience. The word especially stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the Section we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the Accused and they took him out of that area, the Accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the Accused have murdered him. Such inference can be disrupted if the Accused would tell the Court what else happened to Mahesh at least until he was in their custody. 79. This Court in Sucha Singh held as under: 19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the Accused beyond reasonable doubt, but the Section would apply to cases where the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances. 81. The Judgments referred to by Mr. Chaudhary, Sawal Das v. State of Bihar (1974) 4 SCC 193, Reena Hazarika and Gargi v. State of Haryana (2019) 9 SCC 738, were to argue that the last seen evidence will not absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of consideration of facts of which the burden of proof may lie upon the Accused. However, the principles laid down in the aforesaid judgment are not applicable to the facts of the present case, when the prosecution has proved the act of kidnapping and the last seen evidence soon before the approximate time of death of victim. Therefore, the prosecution has discharged the onus of proof beyond reasonable doubt. It was then for the Accused to rebut the presumption of any other intervening fact before the death of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the physical assault on him. 85. The argument that the disclosure statement was not recorded in the exact language of the Accused since the manner of killing is not recorded in such disclosure statement, is immaterial. In terms of Section 27 of the Evidence Act, the discovery of facts alone is admissible evidence when the Accused is in police custody. The manner of killing is inculpatory and, therefore, not admissible in evidence. In such a case, the mere fact that the disclosure statement does not record the manner of killing of the victim is wholly inconsequential. Thus, we do not find any merit in the argument raised by the learned Counsel for A-1. 86. The reliance of Mr. Chaudhary on the Judgment of this Court in Bakhshish Singh v. State of Punjab (1971) 3 SCC 182 is clearly erroneous. In the said case, the recovery of dead body was not believed as it was found to be possible for the Accused to know the place where dead body was thrown in the river as broken teeth and parts of human body was lying near the place of recovery. In the present case, the dead body was lying in a concealed place and that there was no possible explanation on behalf of the Accused as to how the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imortem. Arguments on behalf of A-2 89. Learned Counsel for A-2 argued that A-1 had planned to commit a crime in terms of looting PW-8's employer for money, but at the last minute, A-2 was joined in the kidnapping of the victim and he had no idea about the real motive of A-1 of seeking vengeance from the complainant and his family. However, such an argument is wholly untenable as he is the one who picked up the child from the gate of the Apartment where the family of the child used to stay and had been seen by a number of persons up to 17:30 hrs. It is thereafter that a ransom call is proved to have been made by A-2 on the basis of statement of Mohandas Mitharam Balani (PW-16) from whose PCO, A-2 made the call. He was an active participant in the orchestration of the crime with A-1. Still further, the blue T-shirt worn by the victim was recovered on the basis of disclosure statement of A-2. Such disclosure statement corroborates that it is he who had taken of the shirt and thrown it in a rivulet/nullah which was at a distance of 5 kms. from the place of occurrence. 90. An argument was raised that the child was kidnapped for ransom but there was no intention to take l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtainty, but only beyond reasonable doubt. Criminal courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind, some residual doubt , even though the courts are convinced of the Accused persons' guilt beyond reasonable doubt. 94. This Court following the principle of residual doubt in a judgment reported as Ravishankar v. State of Madhya Pradesh (2019) 9 SCC 689, held that another nascent evolution in the theory of death sentencing can be distilled. This Court has increasingly become cognizant of residual doubt in many recent cases which effectively create a higher standard of proof over and above the beyond reasonable doubt standard used at the stage of conviction, as a safeguard against routine capital sentencing, keeping in mind the irreversibility of death . 95. Mr. Rohatgi, learned Senior Counsel representing the State submitted that apart from aggravating circumstances considered by the learned Sessions Judge and the High Court, there is an additional fact brought on record of this appeal by an affidavit of Senior Police Inspector, Police Station Lakadganj, Nagpur City that the A-1 is in fact an Accused in FIR No. 3 of 2015 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence; (ii) the circumstances are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender. 98. Further, this Court ruled that: (SCC p. 489, para 38) (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime . (iii) Life imprisonment is the Rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The motive of the Accused to take life was to become rich by not doing hard work but by demanding ransom after kidnapping a young, innocent boy of 8 years. Thus, having considered all the circumstances and facts on record, we are of the considered view that the present case falls short of the rarest of rare cases where a death sentence alone deserves to be awarded to the Appellants. It appears to us in light of all cumulative circumstances that the cause of justice will be effectively served by invoking the concept of special sentencing as evolved by this Court in the cases of Swamy Shraddananda and Sriharan. Thus, the present appeals succeed in part. The Judgment and Order passed by the learned Trial Court and confirmed by the High Court convicting the Accused for the offences punishable Under Sections 302 and 364A read with Section 34 Indian Penal Code is hereby confirmed. However, the death sentence imposed by the learned Trial Court, confirmed by the High Court, is converted into the life imprisonment. It is further observed and directed that the life means till the end of the life with the further observation and direction that there shall not be any remission till the Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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