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2020 (4) TMI 912
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.... (PW-1) to the Police Sub-Inspector, Police Station Lakadganj, Nagpur City on 1st September, 2014 about his son Yug, aged 8 years being missing. Dr. Chandak stated that, on 1st September, 2014, when he was present with his wife at the hospital, she told him that their driver Raju Tote had informed her on the phone that their son went along with somebody. Dr. Chandak (PW-1) came 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'....
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....ection 364A read with Section 34 Indian Penal Code and Section 302 read with Section 34 Indian Penal Code on both offences. The learned trial court also convicted A-1 and A-2 for offences punishable Under Section 120-B of Indian Penal Code, to suffer imprisonment for life and to pay fine of Rs. 10,000/- and for an offence punishable Under Section 201 read with Section 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....
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.... Meshram (PW-31), kept his school bag on his chair and told him to leave the same at his Apartment. Yug also told him that he was going to his father's clinic. Yug then sat on the boy's purple scooty and the two drove away. At about 16:15 hrs., Arun Parmanand Meshram (PW-31) went to Dr. Chandak's Apartment to leave Yug's school 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 ....
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.... shop in Maskasath Square, Nagpur and is also a resident of the Apartment. On the day of incident, he came back home to the Apartment for lunch on his Scooter at 16:00 hrs. He deposed that he saw a boy stationed behind a car owned by him, in front of the building of the Apartment. He had suspicion that this boy, wearing red T-shirt and sitting 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 2....
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....after she was resting, but later got up to wash her clothes. She denied that there was any dispute between her and the family of the Accused on account of boundary wall. Thus, the next link of the prosecution evidence is that both the Accused were seen together on a scooty with the kidnapped boy and that the three went away on 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....
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....PW-9), a student of Adarsh Vidyalaya of Village Patansaongi deposed that her friend Tanushri Keche was residing in the neighbourhood of her house. The timing of her school was 12 noon to 17:15 hrs. The school was at a distance of 5-6 km from her house and she and her friend used to attend the school on bicycle. 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. I....
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.... of the boy sitting in between them. They both parked the vehicle and the driver lifted the boy on his shoulder, proceeding towards the culvert. In the meantime, PW-10's son arrived on his motorbike and he went away towards his village. He deposed that he was called for the TIP on 25th September, 2014 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 P....
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.... pant which were wrapped and kept in a box. A-1 pointed out two vehicles which were parked in front of his house, in the courtyard-A black Honda motorbike and a purple scooty. The footrest of the motorbike was smeared with sand particles which were removed and seized in a plastic bag. Both 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 o....
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....n produced a copy of the customer application form of landline No. 3220601 as Exs. 179 and 179/1 whereas the Call Detail Record for short, 'CDR' of landline No. 3220601 has been produced on record as Ex. 178/1. There was a call to PW-1's cell phone at 20:17:28 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 attenti....
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....as not on duty. Thereafter, A-1 stopped attending PW-1's clinic altogether and left his employment without giving any information to him. 33. The excess amount being charged from Naresh Machale (PW-6) has been corroborated by Sonam Meshram (PW-19), A-1'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 S....
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.... Magistrate recorded his statement Under Section 164 Code of Criminal Procedure. 35. Sonam Meshram (PW-19), as mentioned earlier, who had deposed that A-1 used to charge excess amounts from Dr. Chandak's patients had also deposed that A-1 proposed to 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 11:4....
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.... also examined Chitra Kamat (PW-47) who was an Assistant Director in the Government Forensic Laboratory, Kalina, Mumbai. Chitra Kamat (PW-47) received two parcels, one containing hard disks and CD's and another containing four sealed envelopes. 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 corrobo....
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....ot led any evidence to suggest that the deceased died before 18:00 hrs. i.e. the period during which the deceased can be said to be in custody of the Accused as A-1 had received a call from N.T. Gosawi (PW-25) at 17:50 hrs., when he 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 ....
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....d in the killing of the deceased in view of the fact that he was in Police custody from 18:50 hrs. It was also pointed out that since there was no repeat call of ransom, it only showed that the victim was killed after the ransom 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 discl....
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....le (PW-11). It was obvious that the said witness had seen the motorbike of the Accused in a running condition when he was managing his herd of goats. The testimony of Divya Chandel (PW-9) was also criticized for the 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 Moh....
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....en the Accused were in the Police Station Lakadganj. As per statement of Manoj Thakkar (PW-4), he was called upon to become panch witness when he was returning from Wardhman Nagar to his residence 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....
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....on showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as 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 ....
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.... Rule of putting one's version in cross-examination is one of essential justice and not merely technical one. It was held as under: 15. Moreover, there was no effective cross-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] ....
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.... it is the duty of the prosecution to prove the guilt of the Accused; to put it in other words, the Accused is presumed to be innocent until his guilt is established by the prosecution. 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....
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.... employees engaged by Dr. Chandak used to wear a red colour T-shirt in his clinic and as the information at that stage was that one of the Accused was wearing a red colour 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 entir....
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....on account of over-charging customers. Such motive gets further strengthened by the desire in A-1 to get rich even by robbing employer of Sandeep Katre (PW-8), 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 a....
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....r to the actual date of arrest, was examined before the High Court. It was on the basis of the additional evidence recorded, the High Court observed "that 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 pu....
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....for them to discharge the burden of such fact which is within their knowledge. 75. This Court in Jai Bhagwan relied upon by the Appellant, 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....
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....Omar and Ors. (2000) 8 SCC 382, Sucha Singh v. State of Punjab (2001) 4 SCC 375, Rajender v. State (NCT of Delhi) (2019) 10 SCC 623. 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. Th....
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....he existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical 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 ....
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....y light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis 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 ....
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.... victim occurred when the vitals were functioning, but the victim may not be in position to resist 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 conc....
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....ath in that condition which is corroborated by medical evidence of injuries being perimortem. 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....
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....rosecution should prove the case with absolute or mathematical certainty, 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 C....
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.... address itself as to whether: (i) there is something 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 sh....