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Judgment
A.H. Joshi, J.—This Confirmation case and, two separate appeals by convicts-accused have come up for hearing.
Heard learned Additional Public Prosecutor Mr. S.S. Doifode for the State and learned Adv. [appointed] Mr. R.R. Shrivastava for accused Nos. 1 and 2 in Confirmation Criminal Case No. 2 of 2009, learned respective Advocates in the Criminal Appeals preferred by the convicts-accused.
Appellants were charged for offences punishable under Sections 364, 364A 384, 377, 302 and 201 read with Section 34 of Indian Penal Code for:
[a] abducting Mukesh Dilip Gajbhiye on 25th December, 1998 at about 11-00 a.m. with an intention to murder him,
[b] extorting money from his parents,
[c] committing unnatural offence with him,
[d] murdering him, and
[e] destroying the evidence of said offence.
The accused were also additionally charged for previously committing offence of murder and rape and having been convicted for life imprisonment.
The learned Additional Sessions Judge found the accused guilty for the below mentioned offences and convicted and sentenced them to:
[a] death penalty and a fine of Rs. 1,000-00 each, in default, Rigorous Imprisonment for one month, [Section 302 read with Section 34 of Indian Penal];
[b] Rigorous Imprisonment for seven years and a fine of Rs. 1,000-00 each, in default, Rigorous Imprisonment for one month [Section 364 read with Section 34 of Indian Penal Code];
[c] Rigorous Imprisonment for three years and a fine of Rs. 1,000/- each, in default, Rigorous Imprisonment for one month [Section 201 read with Section 34 of Indian Penal Code]; and,
[d] Rigorous Imprisonment for seven years and a fine of Rs. 1,000/-, in default, Rigorous Imprisonment for one month for Accused No. 1 Rajesh [Section 377, Indian Penal Code].
However, the learned Trial Judge acquitted both the accused of the offence punishable u/s 364A Indian Penal Code.
The facts as brought by the prosecution are narrated in a very narrow compass as follows:
[1] On 25th December, 1998, Accused No. 1 kidnapped deceased Mukesh Dilip Gajbhiye.
[2] He took the deceased Mukesh on Luna to the place of offence, situated at Ajgar Layout, Dighori Naka, Nagpur.
[3] Accused dealt a blow of wooden rafter on the head of deceased and killed him.
[4] Accused sodomized Mukesh.
[5] Dead body of Mukesh was buried into a pit of 5 x 3, which was already dug in order to destroy the evidence.
The prosecution story, as has emerged in the final report, is to the effect as narrated herein before.
In the trial, prosecution examined eight witnesses. The story as sought to be proved by the prosecution before the Sessions Court proceeds as follows:
In the trial, to prove its case, prosecution examined eight witnesses. The story as sought to be proved by the prosecution before the Sessions Court proceeds as follows:
Case is based on:
[1] Circumstantial evidence of last seen
[2] Confessional statement given by Accused No. 1 to PW 2 Rajendra Gajbhiye and PW 5 Ramashankar Mishra, in whose presence recovery of dead body, weapons and incriminating clothes was done at the behest of accused No. 1.
As noted by learned Sessions Judge in Para 8 of the judgments, the documents admitted by accused are:
Inquest Panchanama [Exh.25],
Request letter [Exh.26] for providing various samples from the body of deceased,
Police report along with which dead body was sent for post-mortem [Exh.27],
Death Certificate [Exh.28],
Ghat Certificate [Exh.29],
Acknowledgment of Dead Body [Exh.30],
Sana Entry [Exh.31],
Invoice Challan [Exh.32],
Search Panchanama prepared at the time of arrest [Exhs.57 and 58],
Requisition for medical examination of accused Dinesh and Rajesh with medical reports [Exhs.94 and 95],
Post-mortem Report [Exh.96], and
Forwarding Letter alongwith which Muddemal was sent for chemical analysis [Exh.113].
According to learned Additional Public Prosecutor Mr. S.S. Doifode:
[a] The prosecution has proved the entire chain of events commencing from the fact that:
[1] The deceased was taken by the accused in presence of mother of deceased PW 1 Aruna.
[2] Thereafter deceased was not seen by anybody.
[3] Confessional statement made by Accused No. 1 Rajesh before PW 2 Rajendra Gajbhiye and PW 5 Ramashankar Mishra as regards the manner in which he took the deceased Mukesh on the Luna to the hut at Dighori Naka, hit him to kill, sodomized and buried his corpse in a pit which was ready.
[4] Statement made by the accused before police for discovery and its memorandum which was proved by PW 6 Kanhayasing Chauhan.
[5] Actual recovery of dead body where it was buried at the behest and upon identification, and indication of the place by the accused No. 1 Rajesh.
[b] Prosecution has also proved involvement of Accused No. 2 Dinesh by cogent evidence.
[c] From the confessional statement, the demand of ransom is proved.
[d] The fact of assault by accused to kill Mukesh and their unnatural act of doing carnal intercourse with deceased Mukesh are proved by medical evidence.
[e] The manner in which the offence is committed, as can be seen from the position of the dead body, namely the mouth has been gagged and tied, lower apparels are absent and there are injuries on the anal canal with a tear etc., go to show that the accused do not have respect for basic human values and human body.
[f] The offence committed by the accused is heinous.
[g] The mindset of the accused reveals to be of heinous criminality and they, therefore, deserve for all offences charged conviction as well as sentence.
[h] Though the additional charge of previous conviction does not survive due to acquittal in subject charge and trial, in appeal before this Court, yet solely on the basis of the offence, subject-matter, i.e., kidnapping with pre-determination of committing the offence of demanding ransom, keeping the pit for burial ready at the place where Mukesh was buried, assaulting him to death by a single fatal blow, committing unnatural offence and destroying the evidence by burying his dead body, taken collectively, are sufficient to attract capital punishment, since circumstances taken together constitute facts of the case at hand to be bracketed as rarest of the rare case for awarding capital punishment.
Learned APP, therefore, urges in support of confirming conviction and the sentence of capital punishment.
To support his arguments, learned APP Mr. S.S. Doifode placed reliance on following judgments:
(A) General Submissions:
[1] Sahadevan @ Sagadevan Vs. State rep. by Inspector of Police, .
Proposition:
In a case based on circumstantial evidence, when accused has failed to explain the circumstances in which he has parted with company of deceased, the circumstance of last seen has to be believed as proved beyond doubt.
Failure to prove motive is not relevant.
[2] Damodar Vs. State of Karnataka, .
Proposition :
When it was proved that the accused and victim were last seen together, and the dead body was exhumed on showing by the accused, and since accused had failed to show any motive of the witnesses for deposing against him, the prosecution case was duly proved as to the charge of kidnapping, murder and burial of dead body for screening the evidence.
[3] Rajendra Kumar Vs. State of Rajasthan, .
Proposition :
Recovery of dead body u/s 27 of the Evidence Act on the Memorandum of Statement of the accused and indication and discovery of the said place by the police at the behest of the accused, accompanied by recovery of ornaments of the deceased was sufficient evidence for conviction.
Facts of the case that the place where the dead body was buried was taken on rent by the accused two days prior, constituted sufficient proof of involvement of the accused.
[4] Vikas Vs. State of Rajasthan, .
Proposition :
Recovery of dead body at the instance of the husband constituted sufficient circumstance to show his involvement in the commission of offence.
[5] Vilas Pandurang Patil Vs. State of Maharashtra, .
Proposition :
Extra-judicial confession, accompanied by bloodstained articles and other articles, with evidence of presence of blood of the deceased in nail clippings constituted adequate evidence of involvement of the accused.
[6] Sandeep Vs. State of Haryana etc. etc., .
Proposition :
Discovery of blood-stained swords and clothes where blood stains match with the blood group of the deceased constituted adequate evidence to support the conviction even in absence of Identification Parade.
[7] State of Rajasthan Vs. Teja Ram and Others, .
Proposition :
When other evidence is sufficient enough to prove the involvement of accused persons in commission of crime, failure to match the blood group on the weapon of assault on account of disintegration of serum would not destroy the value of other evidence, and fact of blood stains would constitute sufficient material to support the conviction based on other evidence.
[8] Geetha Vs. State of Karnataka, .
Proposition:
The dead body was found under the cot in the bedroom of accused. Circumstantial evidence proved that deceased had gone to the house of the accused on the date of incident. Recovery of ornaments on her body from the accused constituted sufficient material to convict the accused.
[9] Dinesh Bulakhi Harijan and Anr. v. State 2009 (1) Mh. L.J. (Cri.) 185.
Proposition:
When the dead body of the deceased was recovered at the behest of the accused, and it was proved from circumstantial evidence that the place from where dead body was exhumed on showing by the accused which was a secluded place and was a matter of exclusive knowledge of the accused together, on the basis of last seen together, the conviction was well supported.
(B) Other group of citations relied upon by learned APP Mr. Doifode is as follows:
[a] Ankush Maruti Shinde and Others Vs. State of Maharashtra, ,
[b] Dayanidhi Bisoi Vs. State of Orissa, ,
[c] Om Prakash @ Raja Vs. State of Uttaranchal, ,
[d] Molai and Another Vs. State of Madhya Pradesh, ,
[e] Jai Kumar Vs. State of M.P., ,
[f] Govindasami Vs. State of Tamil Nadu, ,
[g] Laxman Naik Vs. State of Orissa, ,
[h] Sevaka Perumal, etc. Vs. State of Tamil Nadu, ,
[i] Asharfi Lal and Others Vs. State of Uttar Pradesh, ,
[j] Henry Westmuller Roberts Vs. State of Assam, ,
[k] Machhi Singh and Others Vs. State of Punjab, ,
[l] Kuljeet Singh alias Ranga Vs. Union of India (UOI) and Anr, ,
[m] State of Maharashtra v. Rajendra Pralhadrao Wasnik 2009 (2) Mh.L.J. (Cri.) 474, and
[n] State of Maharashtra Vs. Shankar Krisanrao Khade, .
The common propositions emerging from these precedents are as follows:
[1] If the conviction can sustain on circumstantial evidence and it unmistakably points at the accused, such - circumstantial evidence can be safely relied upon to base the conviction.
[2] When the accused was last seen in the company of deceased with lesser span of time and reasonable proximity, and the accused fails to explain as to how he had parted with the company of the deceased, the evidence of last seen can be used as best piece of circumstantial evidence to base the conviction.
[3] Lack of motive is irrelevant if involvement of the accused in commission of offence is proved.
[4] While death is an extreme penalty, and it cannot be inflicted, in grave cases of extreme culpability, if the nature of case and circumstances demonstrate brutality, heinousness, lack of respect to the human dignity, dignity of life and even lack of dignity to the dead body - involvement of children offence of rape, murder, which otherwise deserves the description of offence being brutal, ghastly and attracts the description of rarest of rare cases, not being a man slaughter of ordinary crime, the capital punishment is not just justified, but ought to be awarded.
[5] Not awarding appropriate punishment does more damage to the community than the loss of life of the accused.
[6] The age of the accused to be less, i.e., his being of tender age, is not relevant while considering the matter of awarding capital punishment, if such punishment is justified on facts.
[7] The accused have young children and old parents does not yield compassion to commute the capital punishment into life imprisonment.
In reply, learned Adv. Mr. R.R. Shrivastava for appellant in Criminal Appeal No. 275 of 2010 has advanced following submissions:
[a] The confessional statement relied upon by the prosecution allegedly given by the accused to PW 5 Ramashankar Mishra is not admissible in the evidence, as he himself is a Police Constable.
[b] The prosecution story that PW 5 Ramashankar Mishra took the accused No. 1 Rajesh on the motorcycle, and later the accused Rajesh disclosed commission of offence is hard to believe.
[c] Moreover, the version of PW 2 Rajendra Gajbhiye is that the accused gave confessional statement when PW 2 Rajendra and PW 5 Ramashankar were together. This variety in the statements of witnesses creates a doubt as to who amongst the witnesses is true, and it would be unsafe to rely upon such doubtful statements of the witnesses.
[d] The Memorandum as to discovery given by the accused to the police, if at all believed, cannot be believed beyond proof of discovery of dead body, and cannot be admissible for any confessional statement contained in the said memorandum.
[e] The Luna, subject-matter, claimed to be owned by PW 4 Sanjay Vaidya, and proved to be stolen by the accused is not proved to be so stolen by the accused or even used by him for taking the deceased Mukesh at the place of offence.
[f] The ownership of the hut from where the dead body was exhumed is not proved to be of PW 6 Kanhayasing Chauhan, nor it is proved that the accused Rajesh was possessing it.
[g] No effort was made by the prosecution to bring and examine any independent witness, such as neighbour, or any other witness, to prove conscious possession over the said hut to be that of accused Rajesh.
[h] Prosecution story is not certain. In one breath, prosecution claims that it was kidnapping for ransom and then also claims that it was for committing unnatural offence.
[i] It is impossible to believe that the accused had a ready design of commission of offence and screening of evidence, and for that purpose, he had kept the pit ready, duly dug, and after committing offence, buried the dead body of Mukesh from where it was exhumed.
[j] The prosecution story that the clothes of the deceased were recovered from the place of residence of the accused is unbelievable, and conflicts with discovery of undergarments and pant etc., recovered from the scene of offence.
[k] The medical evidence revealing that the swab taken from anal did not reveal semen or sperms shatters the prosecution story of carnal intercourse.
[l] The tear in the anal canal is not proved to be due to insertion of penis, since possibility of insertion of some other article cannot be ruled out.
[m] It is unbelievable that in a room of 10 x 1 , all this scramble was possibl e without any demur, cry, scream or shout in tranquility and without noticing by anyone in the neighbourhood.
In support of above submissions, learned Adv. Mr. Shrivastava has placed reliance on following judgments:
[1] Tipparam Prabhakar v. State of Andhra Pradhes JT 2009 (6) 205 : SCALE 2009 (6) 375,
[2] Salim Akhtar @ Mota Vs. State of Uttar Pradesh, ,
[3] Bullu Das Vs. State of Bihar, ,
[4] Prabhu Vs. State of U.P., ,
[5] (1) Geeta Keshav Shankar # Geeta Mukesh Kharwa; (2) Gauri Manga Kharwa @ Wagheri; (3) Santosh Kanti Kharwa, Mumbai v. State of Mah. 2009 EQ 443.
These judgments are relied upon mainly to urge that:
[1] The Memorandum Statement leading to recovery can be admitted in the evidence limited to the extent of fact of recovery of articles and not for other statements contained therein.
[2] The medical evidence as to cause of death being assault does not, in any manner, directly prove the involvement of the accused in commission of offence.
Learned Adv. Mr. A.R. Prasad for the appellant in Criminal Appeal No. 58 of 2010 submitted as follows:
[1] Prosecution has utterly failed to prove that at a particular point of time in the entire incident, the accused No. 2 was present.
[2] As the involvement of accused No. 2 at any particular point of time and for any particular act is not proved, the conviction of accused is based on suspicion than proof, and he deserves to be acquitted.
[3] This appellant may be in bad company, but was not an abetter or accessory in commission of offence, subject-matter.
He, therefore, urges for clean acquittal.
In the light of rival submissions, this Court has re-assessed and re-appreciated the evidence.
Classification of Evidence
The evidence can be classified as follows:-
A. Circumstantial evidence, namely testimony of PW 1 Sau. Aruna Gajbhiye, who is the witness of last seen of the fact of deceased Mukesh leaving the house in the company of accused persons.
B. Extra-judicial confessions given by the accused persons to PW 2 Rajendra Gajbhiye and PW 5 - Ramashankar Mishra.
C. Evidence of discovery of dead body, clothes, weapon of assault and equipments used for screening the evidence, done at the behest of the accused.
D. Evidence of relevant fact as to place of the burial, i.e., the hut being raised by the accused.
E. Medical evidence and evidence relating to report of Chemical Analyser.
---
Discussion on Evidence
A. Circumstantial evidence, namely testimony of PW 1 Sau. Aruna Gajbhiye, who is the witness of last seen of the fact of deceased Mukesh leaving the house in the company of accused persons.
This Court has already referred to the testimony of PW 1 Sau. Aruna. The relevant portion of her testimony reads as follows:
...I know Accused No. 1 Rajesh Sakhare before the Court. At the distance of 2-3 house of my house Accused No. 1 Rajesh had a shop of press of the clothes. My son Mukesh used to take our clothes for press at the shop of Accused No. 1 Rajesh. Therefore, there was acquaintance between Accused No. 1 Rajesh and my son Mukesh. Accused No. 2 Dinesh is the friend of Accused No. 1 Rajesh, therefore, there was acquaintance between with deceased Mukesh. I know Accused No. 2 Dinesh before the Court is the same. Both the accused persons used to come to my house to meet my son Mukesh and, therefore, I know both the accused.
...Mukesh took lunch at my house. At 11 a.m, Accused No. 1 Rajesh came to my house. Accused No. 2 Dinesh also came along with Rajesh at my house. At that time, I was present at my house. Mukesh wear black jeans pant so also sweater and Jacket having white coloured chain. Then Mukesh went along with the Accused from my house. They went from my house at 11 a.m. Thereafter, for the whole day, Mukesh did not come to the house. I went to the house of Accused No. 1 Rajesh to ask him but Accused No. 1 Rajesh was not present at his house. During the night also Mukesh did not return to the house. During the night I myself alone was present at my house, therefore, could not go anything.
[Quoted from page Nos. 60 and 61 of the paper-book].
The circumstantial evidence of last seen, thus, begins and ends with the statement of PW 1 Sau. Aruna.
B. Extra-judicial confessions given by the accused persons to PW 2 Rajendra Gajbhiye and PW 5 Ramashankar Mishra.
As far as confessional statements of accused are concerned, the relevant portions of oral evidences of PW 2 Rajendra Gajbhiye and PW 5 Ramashankar Mishra relied upon by the prosecution as confessional statements made to PW 2 Rajendra Gajbhiye and PW 5 Ramashankar Mishra, are as follows:
Statement made to PW 2 Rajendra Gajbhiye:
...At that time, Major of RPF Shri R.S. Mishra came there, and enquired to Accused No. 1 Rajesh. At that time Accused No. 1 told that he took Mukesh on Luna forcibly and took in Ajgar layout near Dighori Naka at his house, and that Accused No. 1 Rajesh committed murder of Mukesh and buried the dead body under the earth, in his hut. Accused No. 1 Rajesh further told that in this way, it was the intention to extract ransom from parents of Mukesh.
...I also know Accused No. 2 Dinesh before the Court. Accused No. 1 Rajesh told that Accused No. 2 Dinesh was also accompanied me.
[Quoted from page No. 63 of the paper-book. To highlight and relevant and important sentences, underlining is provided].
Statement made to PW 5 Ramashankar Mishra:
...Myself and Rajesh started on motor cycle and after going some distance I again made enquiry with Rajesh telling him that he should tell truth and should not be afraid of anything.
Thereupon Rajesh told me that Mukesh was murdered by himself, i.e., Rajesh and Yadao by assaulting Mukesh with the help of stick. Rajesh told me that the murder was committed at Dighori Naka and the dead body of Mukesh was buried in a room locality in Dighori Naka.
[Quoted from page Nos. 98 and 99 of the paper-book].
C. Evidence of discovery of dead body, clothes, weapon of assault and equipments used for screening the evidence, done at the behest of the accused.
AND
D. Evidence of relevant fact as to place of the burial, i.e., the hut being raised by the accused.
This aspect is proved from the statement of PW 7 Mofijmiya Mohd. Bapumiya Deshmukh. He has deposed that accused revealed the information, and based thereon, the Memorandum of Statement [Exh.45] was drawn. He further deposed that he along with policemen went to the spot, discovered the location, equipments, weapon of assault, and exhumed the dead body.
It is seen from Exh.45 that after recording the narration of event, the accused told the police to accompany him to show the place of offence where the dead body of Mukesh was also buried.
Panch witness is PW 3 - A.G. Lade. This witness has proved the Panchanama of Memorandum of Statement as well as subsequent Panchanama, i.e., Spot Panchanama, Seizure Memos [Exhs.45, 46, 47, 48, 49, 50, 51 and 52]. Evidence of PW 3 A.G. Lade was not shattered in the cross-examination. Therefore, this witness has proved the facts, namely Memorandum to lead to recovery u/s 27 of Evidence Act, recovery of incriminating material, the dead body, Panchanamas of spot and Inquest etc.
E. Medical evidence and evidence relating to report of Chemical Analyser.
Medical evidence relates to injuries and cause of death.
Dr. V.R. Agrawal, who carried out the post-mortem examination, could not be available, and his opinion is proved by PW 8 - Dr. Pradeep Gangadhar Dikshit. This witness has proved the Report of Autopsy by identifying the signature of Dr. V.R. Agrawal.
Moreover, Accused No. 2 had admitted the medical report.
Head injury being the cause of death is not disputed.
In so far as the aspect of carnal intercourse is concerned, the Doctor has opined that the tear to anal canal is possible due to insertion of penis.
It is a matter of record that the anal swab does show not presence of spermatozoa. Other opinions arising from Chemical Analyzer s Report are not of much significance.
In the light of discussion noted above, this Court has to consider whether different facts, namely:
[a] Last seen,
[b] extra-judicial confessional statements, and
[c] proof of accused persons being authors of crime,
are proved by circumstantial evidence.
In the statement of PW 1 Aruna, she claims that Mukesh went with accused persons at 11-00 a.m.
In the cross-examination, she admits that she had stated in the statement made to police that Accused No. 2 Dinesh came to her house at 11-00 a.m., on 25th December, 1998, and Mukesh went with him, and she does not know why this is not recorded in the statement.
PW 1 Aruna claimed in the Examination-in-Chief itself that she went to the house of accused Rajesh to ask about Mukesh, but Rajesh was not present at his house. She has not explained as to why her husband was not involved in the searching, nor she states as to why has she failed to contact PW 2 Rajendra who stays just two houses away from her house.
The confessional statement given to PW 2 Rajendra and PW 5 Ramashankar Mishra discloses that the accused No. 1 took Mukesh. PW 2 Rajendra later says in para 3 of his oral testimony that Accused No. 1 Rajesh told that Accused No. 2 Dinesh was also accompanied me.
It is not clear as to whether all the three, namely both the accused and deceased Mukesh, did ride the Luna, or otherwise.
In the oral report [Exh.40] submitted to police, PW 2 Rajendra has stated that PW 1 Aruna had told him that she had enquired with Rajesh about her son Mukesh, but he did not tell anything and, therefore, she wanted Rajendra to make enquiries. He further states in the said report that:
He accompanied by his brother s wife [Aruna PW 1], Raju Gaikwad, Bhimrao Chandankhede and some other persons went to Rajesh to make enquiries.
In the beginning, Rajesh told that he did not know anything. However, PW 5 Ramashankar Mishra asked Rajesh.
Rajesh has then disclosed the incident of having committed the offence along with Accused No. 2 Dinesh for recovering ransom from father of Mukesh.
Through the Panchanama of Recovery of Clothes [Exh. 52], the clothes on the person of the deceased were collected, which consist of [1] T-shirt, [2] Full sleeved white sweater, and [3] Sandoz Banian.
Through Seizure Panchanama [Exh.51], Accused No. 1 gave discovery of clothes and the Luna. These clothes are [1] Faint pink coloured underwear having one pocket with a chain on right side front portion, and [2] black coloured Jeans full-pant having two pockets on its front side etc., with a lable reading Essas CLUB DENIM
It is, thus, seen that the total clothes shown to be that of deceased are:
[1] Item Nos. 1 to 3 taken from the corpse of Mukesh, and
[2] those revealed by the Accused No. 1.
It is seen from the description of articles referred for chemical analysis that Item No. 3 consists of clothes recovered from the person of deceased. The group of the blood seen on the clothes is B which matches with the blood group of the deceased.
In the light of foregoing discussion, this Court has to judge:
[a] Is the fact of last seen proved in so far as both accused persons are concerned?
[b] Is the extra-judicial confessional statement proved?
[c] Has the prosecution proved the discovery of place of offence at the behest of accused and the discovery of dead body etc.?
In so far as the confessional statement is concerned, this Court finds that the confessional statement given by the accused No. 1 to PW 2 Rajendra shows his involvement, and he seems to have supplemented, saying that Accused No. 2 Dinesh also accompanied him.
In the confessional statement made to PW 5 Ramashankar, the Accused No. 1 is said to have involved himself. PW 5 Ramashankar does not, in any manner, disclose that confessional statement of accused No. 1 pertained to involvement of Accused No. 2.
PW 2 Rajendra states in the First Information Report lodged by him that the confessional statement was made in presence of his brother s wife [Aruna- PW 1], himself, Bhimrao Chandankhede, some other persons and PW 5 Ramashankar Mishra.
The story narrated by PW 5 Ramashankar relating to confessional statement is that he took the motorcycle of PW 2 Rajendra, took the Accused No. 1 with him, encouraged him to be candid and that accused No. 1 made confessional statement. He then supplements that PW 2 Rajendra was also accompanying.
The sum effect of version of PW 2 Rajendra contained in First Information Report, narrated by him and narrated by PW 5 Ramashankar poses a parallax, and definite and unambiguous picture of confessional statement is not presented.
In the result, this Court rejects the prosecution story of extra-judicial confession.
In so far as the involvement of Accused No. 2 Dinesh as an accessory or participant in the commission of offence as a co-accused, or otherwise, is concerned, the story narrated by PW 1 Aruna is such that she exerts to incidentally involve the Accused No. 2.
Moreover, she admits in cross-examination that she had told the police that Accused No. 2 Dinesh had come to her house at 11-00 a.m., however, her statement recorded by police does not contain said narration.
In the oral report, PW 2 Rajendra states that both accused persons made Mukesh to forcibly sit on the Luna and took him away. However, no such incidence of force is supported by PW 1 Aruna.
In the confessional statement which this Court has already rejected, involvement of Accused No. 2 is seen in the testimony of PW 2 Rajendra, however, it is not seen in the testimony of PW 5 Ramashankar.
The result is that involvement of Accused No. 2 is, thus, not proved.
In so far as Accused No. 1 Rajesh is concerned, though due to unacceptable involvement of Accused No. 2 by PW 1 Aruna, her testimony to that extent has come in doubt, question is whether her testimony should be accepted in part to the extent of involvement of Accused No. 1?
The evidence against Accused No. 1 seen collectively is as follows:
[a] PW 1 Aruna has found that Mukesh went with Accused No. 1.
[b] PW 3 Ashok Lade and PW 7 Mofijamiya Deshmukh, Investigating Officer, have proved that:
Apart from incriminating confessional statement made by the accused [which part of the memorandum is not admissible in evidence], the accused agreed and assured police to escort to the place where dead body of deceased Mukesh was buried.
Accused No. 1 Rajesh took out the key of the hut kept on the cement sheet and opened the door.
Accused No. 1 pointed out the spot on ground below the iron cot as the place where dead body was buried.
Upon digging, the dead body was exhumed.
The dead body was identified to be that of deceased Mukesh.
The wooden stump, spade, crow bar, pickaxe, shovel with wooden handle were found on the spot.
[c] Testimony of PW 3 Ashok Lade, Panch witness, is not shattered, nor any circumstance has been shown as to why the testimonies of PW 3 Ashok, PW 7 Mofijamiya Deshmukh and PW 8 Dr. Pradeep Dikshit should be disbelieved.
[d] It is also not shown as to why statement of PW 1 Aruna should be disbelieved as far as involvement of Accused No. 1 is concerned.
Fact of last seen is a fact where a person claims to have seen the accused in the company of the deceased at latest point of time.
PW 1 Aruna states that she has seen, namely she has actually witnessed Accused No. 1 going out of her house with deceased Mukesh. The fact of deceased Mukesh being in company of Accused No. 1 cannot be described in so many words more than what PW 1 Aruna has done. It would have been possible for the police to search more evidence. However, failure to do so does not by itself destroy the version of PW 1 Aruna. When the recovery of dead body and other incriminating material at the instance of accused No. 1 is done, the fact of recovery of dead body and other incriminating material sufficiently involves and ties the accused No. 1 with the incident.
In the result, involvement of Accused No. 1 in the commission of offence is positively made out and duly proved. Therefore, this Court holds that the offence of murder is committed by Accused No. 1.
The medical evidence does not conclusively prove the act of sodomy.
The evidence relating to kidnapping for ransom is already held not proved by the Sessions Court. In absence of proof of motive as to ransom or sodomy, the act of kidnapping remains an act in isolation done for the purpose of murder. Though apparently motive is not proved by the prosecution, it does not matter, rather it becomes an irrelevant factor when fact of homicidal death becomes conclusive. By applying the same yardstick, i.e., by accepting proof of last seen , it will have to be held tha the deceased, who was a minor, was kidnapped by the Accused No. 1, may be by some lure, though not by force.
This Court, therefore, confirms and endorses the conviction of the accused No. 1 for offences punishable under Sections 364, 302 and 201 of Indian Penal Code.
In view that Accused No. 2 is found not involved, Section 34 of Indian Penal Code has no application.
Now, comes the question of sentence. Heard both sides on the point of sentence.
It is seen that in absence of proof of carnal intercourse, and in absence of proof of motive, the offence, in question, turns out to be an act of man slaughter.
Prosecution has failed to bring other sets of offences on record which would paint the commission of offence to be heinous, devoid of basic human values, ghastly etc. For that matter, every act of murder has to be ghastly. Nevertheless, considering the aspect of sentence, to tend it to capital punishment, the case has to be rarest of rare. Bare fact of absence of clothes on the corpse and injury to the anus ipso facto will not convert it to be a case of rarest of rare category.
In the result, the capital punishment ordered by the Sessions Court cannot be confirmed. Hence order:
[i] Conviction of Accused No. 1 for offences punishable under Sections 302, 364, 201 of Indian Penal Code is maintained. For offence u/s 302, he is sentenced to suffer Life Imprisonment, as death sentence is not confirmed. Other sentences are maintained.
[ii] All substantive sentences for offences under Sections 302, 364, 201 of Indian Penal Code to run concurrently. Set off be given to Accused No. 1 for the period he is in custody.
[iii] Accused No. 1 is acquitted of the offence punishable under Sections 364A and 377 of Indian Penal Code.
[iv] Accused No. 2 is acquitted of all the charges levelled against him and impugned Judgment and Order as against him is quashed and set aside.
He be set at liberty if not required in any other matter. Fine amount, if any, paid by him shall be refunded to him.