Bombay High Court
The State Of Maharashtra vs Lahu @ Lahukumar S/O. Ramchandra ... on 31 August, 2004
Author: H.L. Gokhale
Bench: H.L. Gokhale, A.S. Aguiar
JUDGMENT H.L. Gokhale, J.
1. Confirmation Case No. 3 of 2003 and Appeal No. 294 of 2004 arise from the judgment and order 8th October 2003 rendered by the Additional Sessions Judge, Pune, convicting the Accused under Section 302 read with Section 364A of Indian Penal Code and awarding the sentence of death by hanging. The State has sought confirmation of the death sentence, whereas the Accused has filed the aforesaid Appeal challenging his conviction under Sections 302 and 364A, Indian Penal Code as well as under Section 384 and Section 201 of Indian Penal Code. The Accused has been sentenced to death by hanging for the offences under Sections 302 and 364A and awarded three years of RI and fine of Rs. 1,000/-, in default further RI for six months for the offence under Section 384. He is awarded a simple imprisonment for five years and a fine of Rs. 1,000/-, in default RI for six months for the offence under Section 201 of Indian Penal Code. Though the Accused is the Appellant, for convenience, hereinafter he is referred to as the "Accused". The Confirmation Case and the Appeal have been heard and are being decided together.
2. The facts leading to the filing of this Appeal and the Confirmation Case are as follows:-
It is the case of the prosecution that on 4th July 2000 at about 10.30 a.m., the Accused kidnapped a boy named Amit, aged 13 years, the son of one Chandrakant Namdeo Sonawane at village Neera within the jurisdiction of Jejuri Police Station in District Pune for ransom. He extorted an amount of Rs. 50,000/- from Chandrakant and still killed the child and subsequently destroyed the evidence. The charge against the Accused was principally in two parts. The first part was kidnapping the child for ransom and extorting the ransom amount, and the second was murdering the child and destroying the evidence. The questions which arise for determination are :
(i) Whether the prosecution had proved the charge of kidnapping for ransom and extorting to establish the conviction under Sections 364A and 384 of Indian Penal Code?
(ii) Whether the prosecution had established the charge of murdering the child and destroying the evidence under Sections 302 and 201 of Indian Penal Code?
(iii) If the charges are proved what should be the punishment and alternatively whether the learned Sessions Judge had erred on any of these points, and if so, what should be the order?
3. To begin with, we will deal with the first question. Prior to the date of the incident for about 15 to 20 days, the Accused used to do the work of polishing furniture at a shop adjoining to that of Chandrakant. During that period, the Accused used to visit the house of Chandrakant and his sons knew him. On that date and time, Amit was going to school on that day and time, carrying his school bag on his back and wearing white shirt and khaki half pant. As per the statement of Sampat L. Dagde (P.W.5), the Accused came on a black coloured motor cycle. On seeing him, Amit said to the Accused "Kai Ho" (Hello). The Accused, who was on the motor bike, said "Chal Phirun Yeu" (Let us take a round). Amit told him that he will get late for the school. The Accused, who was on the motor cycle, told Amit that they would return within five minutes. Amit boarded the motor cycle and the Accused speedily took it towards the side of an adjoining town by name Lonand.
4. It is the further case of the prosecution and as revealed by Sunil L. Khatal (P.W.3) who owned an agricultural field at an adjoining village Sakharwadi, he saw the Accused going on a motor bike carrying one boy behind him who had a school bag with him. His attention was drawn because of the horn being given by the motor cycle. The motor cycle went ahead by a road which went towards village Rawadi Budruk.
5. The case of the Complainant-Chandrakant Sonawane (P.W.1), father of this child Amit, as disclosed by his deposition, is that he had retired from a service of about 20 years in the military at the end of March 1999 and settled down in that village. He had started a business of selling loose tea under the name and style of "Yamai Tea Depot". He stayed in Ward No. 6 of that village along with his wife and two sons viz. Amit, aged 13 years and the younger Son Ajit, studying in 8th and 6th standards respectively. He further stated that the Accused had polished furniture in his Firm. He was doing the polishing work in the adjoining shop for about 15 to 20 days prior to the incident and was on visiting terms to his house and his children knew him.
6. On 4th July 2000, Chandrakant had taken the elder son Amit with him to his shop in the morning. Thereafter Amit went home for going to school. In the evening, his younger son Ajit returned home and told him that all the class-mates of Amit had gone home but Amit had not returned. The Complainant thought that Amit might have gone to his friend. At about 8 P.M. he closed his shop and went to the house of Amit's class-mate one Dhawal Nigde. Dhawal informed him that Amit had not come to the school at all. The Complainant, therefore, went to Amit's class teacher who also confirmed that Amit had not come to the school at all. Chandrakant then phoned his brother staying in adjoining village Nhavi in Bhor Tahsil to inform that Amit had not come back home. He then searched at the residence of his friends and relatives on that day and next day in the village along with his brother but without any success.
7. Ultimately at about 6 P.M. on 5th July 2000, he lodged a Complaint at the Police Out Post at Neera. When he came back home, his cousin Sudhakar Sonawane informed him that at about 1.30 P.M. in an adjoining STD Booth of one Bhapkar, an anonymous phone was received informing that Amit was in the custody of the one who was making the phone call and that if they wanted the child, they should arrange Rs. One Lakh or else the child will be taken to Mumbai. The message was given in Hindi.
8. On the next day, they continued searching Amit but he could not be traced. On the subsequent day i.e. on 7th July 2000, the Complainant received an inland letter. The address on that letter was in the handwriting of Amit but the contents were in another's handwriting and were in Hindi. It was specifically written in that letter that if Sonawane wanted his child, he should arrange Rs. One Lakh, otherwise, the child will be killed. The letter directed him to meet the author of the letter at Bhapkar STD Booth at 5 P.M. on Saturday. The Complainant lodged that letter for reporting the kidnap and making the demand of ransom at the Neera Out Post Police Station. (Exhibit 22). The exact content of the letter when translated from Hindi was as follows:-
"Sonawane, your child is in our custody. Arrange Re.1 Lakh else we will kill the child, wait at the Bhapkar STD on Saturday. I will tell you where to keep the money."
9. On the next day i.e. on 8th July 2000, at about 3 P.M. one more phone call was received at Bhapkar STD Booth which was received by Complainant's brother Dnyanoba Sonawane. That call was also in Hindi and the same demand of Rs. One Lakh was made and it was stated that if the amount was not paid, the two eyes of the son will cost Rs. Two Lakhs. The person speaking on the phone told the Complainant that the place of depositing the money will be informed next day. On the subsequent day i.e. on 9th July 2000, the Complainant waited at the Bhapkar STD, but nobody gave any phone call nor anybody turned up. However, a friend of the Complainant one Kailas Shinde received a call on his phone. The Complainant went to the place of Shinde but there was no further call. Once again, a phone call was received by Bhapkar STD at 10 A.M. and the Complainant spoke to the concerned person. That person threatened him in Hindi that he should arrange Rs. One Lakh and keep at the Sevagiri Maharaj Temple on Morrgaon Road and that he should put the money and return back and he will find his son sitting in a truck.
10. The Complainant arranged the money and went to the Police Out Post at Neera. The Head Constable Jadhav told him that he should deposit the money at the particular place and give a signal to the Police. The Complainant did as directed but could not find any truck or his son. The Police came back later-on after waiting for some time and returned the amount deposited by him by informing that nobody had come. On the next date i.e. on 10th July 2000, the Accused came to the Complainant and inquired with him as to whether he was in a position to arrange the money of Rs. One Lakh. The Accused abused the kidnapper. He had come on black colour Suzuki motor cycle. On the same day at about 7 P.M. the Complainant received a phone call at Bhapkar STD booth that he had exempted Rs. 50,000/- and he should arrange only Rs. 50,000/- and keep it at the Neera Jejuri Road behind the Gurhal (i.e. sugarcane crushing centre) of Thopte and that he will find his son in a temp near Neera Railway Station. The Complainant rushed to the Police at the Neera Guest House and kept the cash in a bag. In the short time that was available, P.S.I. Jagdale noted down the numbers of 20 Notes on a separate paper and put plus mark on the notes. The Complainant then went to that Gurhal where he saw that it was written on the door thereof that the money be kept over there and he should return and that his son will be found within 15 minutes. The Complainant put his bag over there and started returning. At the same time, he heard shouts of the Police "Thamb Palu Nakos Goli Ghalen" (Stop. Don't run. We will shoot). The Police were chasing a person but could not catch him. When the Complainant again went to the spot, he found that the amount was missing.
11. A few days thereafter i.e. on 17th July 2000, two Policemen came to his residence and took him to the Neera Out Post and then to Rawadi Farm House. The Police of Satara were also present there along with a Medical Officer Sudhakar Bhokare (P.W.11). That spot was shown by the Accused who had been rounded up by the Satara Police in the meanwhile. A skeleton of a body was seen over there consisting of the portion of skull and portion of the waist and that below the same. There was the under-pant, two kardodas (round cotton thread worn by children around their waist) and khaki-pant lying nearby. A comb of whitish blue colour was seen in the pocket of the pant. One shirt was then traced which was lying at a distance in a ditch. According to the Complainant, all those articles were of his son.
12. During the course of the trial, the prosecution examined one Praveen S. Gole (P.W.18) who was Panch witness at the time of the physical search of the Accused on arrest. At that time an amount of Rs. 1427/- was found on his person, out of which there were 11 Notes of Rs. 100/-. The numbers of these Notes were noted. It is the case of the prosecution and there cannot be any dispute that the numbers of 7 of these 11 Notes were from the 20 numbers which were noted down when the amount of Rs. 50,000/- was deposited at the Gurhal of Thopte. The prosecution also examined one Sunil B. Panchakale (P.W.15) who stated that the Accused wanted to take on rent a shop belonging to him. The terms were agreed that the deposit will be Rs. 25,000/- and rent was to be Rs. 500/- per month. On 20th June 2000, the Accused had given him an advance of Rs. 1500/-. Later-on he came on 11th July 2000. On 10th July 2000, the Accused had collected a ransom of Rs. 50,000/- at the Gurhal of Thopte. On that date i.e. on 11th July 2000, he paid him Rs. 5,000/- more. Shri Pandurang L. Shejale was examined as P.W.22, who was API, Satara at the relevant time and he caused the arrest of the Accused. In para-4 of his examination-in-chief, he stated that after the arrest and during the course of the investigation, the Accused showed his Suzuki Samurai Motor Cycle and one Bajaj Scooter which were parked at the padavi adjoining to the house. Then the Accused produced an amount of Rs. 30,420/- which was kept inside the showcase of a T.V. That amount was seized by the officer under panchanama on 18th July 2000. It is the case of the prosecution that this recovery of Rs. 1427/- on his person, Rs. 5,000/- paid for hiring the shop on 11th July 2000 and Rs. 30,420/- found at his residence cannot be explained except that the amounts are from the ransom collected by the accused on 10th July 2000. A stress is also laid on the fact that out of 11 Notes of Rs. 100/- found on his person, 7 were having the numbers from the 20 Notes which wee noted before depositing the amount of Rs. 50,000/- by the Complainant at the Gurhal of Thopte on 10th July 2000.
13. Thus, as far as the first part of the charge viz. kidnapping the child for ransom and extorting ransom amount is concerned, the prosecution mainly relies upon the following witnesses and factors:-
(i) Evidence of father of the child Chandrakant Sonawane (P.W.1).
(ii) Evidence of Dnyanoba N. Sonawane (P.W.2), brother of the Complainant.
(iii) Evidence of Shivaji B. Bhapkar (P.W.19), owner of STD Booth.
(iv) Anil C. Jadhav (P.W.20), who recorded the missing report.
(v) Panch Witness Shankar G. Khomne (P.W.4) for the inland letter produced by P.w.1 and also for obtaining specimen hand-writing of the Accused.
(vi) Address on the letter was in the handwriting of Amit which was identified by P.W.1 and P.W.2.
(vii) Dashrath P. Salunke (P.W.7), Panch for recording the Memorandum when PSI Jagdale noted down the numbers of 20 Notes from the bundle of Rs. 50,000/- brought by the Complainant. This witness had stated in Para-2 of his examination-in-chief that PSI Jagdale could note the numbers of only 20 Notes from one bundle due to shortage of time. He also stated later-on that these numbers were subsequently reduced to writing in the Panchanama. He is also a Panch witness to the writing on the door of Gurhal, where the Complainant was asked to deposit the money.
(viii) Sampat L. Dagade (P.W.5) is the witness to Amit boarding the vehicle of the Accused.
(ix) Sunil L. Khatal (P.W.3) who has seen the Accused carrying Amit on his motor cycle and going towards Rawdi Budruk (where ultimately the skeleton of a child is found).
(x) Contents of the letter (Exhibit 22) threatening kidnap for ransom and murder. The handwriting of the Accused therein is proved by the Handwriting Expert F.I. Shaikh (P.W.13).
(xi) Writing on the door of the Gurhal - the handwriting whereof is sought to be proved by the Expert.
(xii) Pravin S. Gole (P.W.18), Panch witness to the recovery of Rs. 1427/- on the person of the Accused and to the fact that numbers of 7 notes of Rs. 100/- tallied with the number from the 20 notes out of the deposited amount.
(xiii) Sunil Panchkale (P.W.15) who deposed that Accused had paid him Rs. 1500/- earlier and then Rs. 5000/- on 11th July 2000 for hiring a shop.
(xiv) P.S.I. Laxman P. Shejale (P.W.22) who deposed as to how Rs. 30,420/- in cash were discovered at the instance of the Accused from his residence on 18th July 2000.
(xv) Prakash R. Jagdale (P.W.21), Investigating Officer.
14. Sampat L. Dagade (P.W.5) is the person who has last seen the child with the Accused. He has stated that on 4th July 2000 at about 10.15 a.m. he was going to the vegetable market. He came near Baramati Octroi Naka. On the opposite direction one motor cycle black Suzuki Samurai was coming and Amit was going ahead. Amit had put on school uniform and there was a school bag on his back. Amit said to him "Kai Ho" and the person said "Chal Phirun Yeu". Amit stated that he will get late for school but the person assured that they will return within 5 minutes. Amit then boarded the motor cycle and went with him. This P.W.5 remembers the person as one of medium height and vertical face with hair turned behind. On the same day, he was to go to Phaltan along with Dnyaneshwar Maharaj Palkhi and then to Pandharpur. He went there and came back on 19th July 2000 when he came to know that the son of P.W.1, Amit was kidnapped and that he was subsequently killed. On the very day of his return when he learnt about it, on his own he went to the Police Station at Jejuri and narrated what he had seen on 4th July 2000. He stated in his deposition that his daughter Jayashree was about 11 years and son Jaipal was about 13-14 years. He knew P.W.1 Chandrakant and his sons. He further stated that his own children were of tender age and such type of things can happen to them as well. He, therefore, went to the Police Station and narrated his version. The Accused was arrested by the Satara Police on 17th July 2000 and was transferred to the Jejuri Police on 14th August 2000. T.I. parade was held on 25.9.2000 at Tahsil office, Satara where this P.W.6 attended and identified the Accused from among the 7 persons. On the question as to how this witness identified the Accused, he stated in Para-9 of his cross-examination that he knew Amit and he had heard the conversation between him and the Accused when Amit went with the Accused. He stated that on seeing Amit, he halted there and he might have halted for 3 to 5 minutes. He accepted that he was well acquainted with Chandrakant Sonawane and about his business. He further stated that his son and Amit used to meet each other. He denied the suggestion that the Police had shown photograph of the Accused or given some hints to him before the T.I. parade. A strange suggestion was put to him without any foundation in paragraph 6 of the cross-examination that he used to supply Ganja to Mumbai and those persons from Mumbai had demanded ransom from Chandrakant. It was also suggested to him that he had taken help of one Dhananjay M. Gaikwad, the owner of the above-referred Gurhal to kidnap Amit. These were suggestions without any foundation at all and obviously the witness denied them. If there was any basis to such a plea, the Accused would have examined some witnesses in support. Nothing of the kind was done.
15. The next witness examined by the prosecution was one Sunil L. Khatal (P.W.3) on the aspect of having last seen the Accused. He has stated that he saw the Accused carrying the child behind him on the motor cycle and going through the field on 4th July 2000. He stated that he remembered him because motor cycle was blowing horn and that is how his attention was drawn. He particularly remembered because the child was sitting behind with the school bag and going in another direction on an uneven road towards Rawadi Budruk. He stated that as per his memory the Accused was a person of medium built with vertical face and the hair turned behind. He had also read in the newspaper that Amit had been kidnapped for ransom and later-on killed. After reading the newspaper, he had gone to the Neera Police Station and given his statement. He also identified the Accused in the T.I. parade.
16. Now, as far as these two witnesses are concerned, the evidence of P.W.5 is undoubtedly trustworthy. He had seen the Accused talking to the child for about five minutes. He knew Amit as friend of his own son. On the same day, he had gone to Pandharpur and on return when he came to know about the kidnapping of Amit and he having been killed, he had straightaway gone to Police to assist them since he feared that such things would happen to his own children as well. Whereas the incident had occurred on 4th July 2000, the Accused had come in the custody of Jejuri Police on 14th August 2000 and T.I. parade was held on 25.9.2000. There is no reason to disbelieve the testimony of this witness when he says that he very much remembers having seen the Accused and identifies him.
17. As far as P.W.3 is concerned, there is also no reason to disbelieve him with respect to the statement that he had seen a person carrying a child behind him on a motor cycle. The motor cycle was going on an uneven road. The child was wearing the school uniform and carrying a school bag on his back. The motor cycle was going in a direction away from the village. When later-on the witness learnt that a child had been kidnapped and killed and that the kidnapping had taken place on that particularly day, this very incident must have again surfaced in his memory and, therefore, there is nothing to disbelieve when he says that on that day he saw a person taking a child away from the village towards Rawadi Budruk. The only question is whether the identification of the Accused by him should be accepted. This is for the reason that he did not get much time to look at the Accused. His attention was drawn since the Accused was blowing the horn. The vehicle could not be in a fast speed since it was going on an uneven road. On a day of working of the school the child was being taken in an opposite direction and, therefore, the witness was attracted to the person who was carrying the child. It is possible to say that normally a person will not remember the face of such a rider of the motor-cycle but at the same time, it is also possible that because of the peculiar happening the picture of his face must have got engraved on his memory and which he remembered leading to the identification of the Accused in just about two months from the date of the incident.
18. Then the writing of the Accused on the letter is compared with his other handwritings. The Accused was asked to give various specimens of his writing. Shankar G. Khomne (P.W.4) is examined as a Panch for seizure of the letter written to the Complainant, which he received on 7th July 2000. The letter was taken on record as Exhibit 29. He was shown the photograph of the writing on the door of the Gurhal. The Accused was asked to write these writings as well as a news item appearing in a newspaper nine times in the presence of the Panch and those writings were exhibited as specimen writing. Shri Firoz I. Shaikh, who was working at the relevant time as the Assistant State Examiner of Documents, was examined as P.W.13. He compared the writing of the inland letter with the sample writings, from the angle of identification with the help of different magnifying devices. Accordingly, he gave his opinion that the concerned writings are indicative of their being in the same hand. (Para-7 of his deposition).
19. Thereafter, as stated earlier, there is the deposition of Dashrath P. Salunke (P.W.7) as to how PSI Jagdale could note down only 20 numbers of the Notes in a short time when Rs. 50,000/- were to be deposited at the Gurhal and the evidence of Sunil B. Panchakale (P.W.15) as to how he received Rs. 6,500/- from the Accused and out of that Rs. 5,000/- on 11th July 2000. Thereafter there is the evidence of A.P.I. Pandurang L. Shejale (P.W.22) as to how Rs. 1427/- were found on the person of the Accused and as to how Rs. 30,420/- were recovered from the residence of the Accused on 18th July 2000. There is no explanation coming forward from the Accused for this amount being found at his residence and for the 7 Notes found on his person bearing numbers from among the 20 Notes which were from those deposited by way of ransom.
20. Mr. Apte, learned Counsel appearing for the Appellant, submitted that the testimony of the two witnesses who claimed to have last seen the Accused, should not be accepted. He relied upon a judgment of the Apex Court in the case of Subhas Chand v. State of Rajasthan . In that matter, the testimony involved was of a minor of 4 years who had last seen the Accused with the deceased. Certainly, the facts of that case are clearly different. In the present case, two adult persons are explaining as to how they had seen the Accused last with the child. One of them was very much knowing the child. He heard the conversations between the Accused and the child and saw the Accused taking away the child on a motor cycle. He had every reason to remember the face of the Accused. There is no reason as to why the testimony of this witness i.e. P.W.5 should be discarded. Similarly, as far as the other witness P.W.3 is concerned, though his evidence may not be considered as strong as that of P.W.5, it can still be considered as a corroborative evidence. Coupled with this, there is the letter written by the Accused himself and the visit of the Accused to the residence of the Complainant in the morning of 10th July 2000 to inquire as to whether it was possible for him to arrange ransom of Rs. One Lakh.
21. Mr. Apte submitted that the opinion of the Handwriting Expert should not be accepted as a gospel. In this behalf, he relied upon a judgment in the case of Bhagwan Kaur v. Shri Maharaj Krishan Sharma and Ors. and submitted that the evidence of Handwriting Expert unlike that of a fingerprint Expert is generally of a frail character. The Apex Court has cautioned that the Court should, therefore, be wary to give too much weight to the evidence of Handwriting Expert. There is undoubtedly a force in the submission. However, in the instant case, good many specimens of the writings of the Accused have been taken and the Handwriting Expert has compared them with his writing in the letter and the one on the door of the Gurhal. It is true that as far as the writing on the door of the Gurhal is concerned, there is some difficulty in proving it inasmuch as the negative of the photograph thereof is not produced. That is not the problem with respect to the letter inasmuch as the original letter (Exhibit 22) itself has been produced by C.N. Sonawane (P.W.1) and the Accused has given specimens of the same writing in he presence of Shankar Khomne, Panch witness (P.W.4). The Handwriting Expert has given his reasons as to why he had come to the particular conclusion. He stated in paragraph 6 of his deposition as follows:-
"6. I had compared the questioned writing with the standard writing through the angle of their identification with the help of different magnifying devices such as Hand Magnifier etc. I also found that, the handwriting identifying the characteristics such as slant, combination of letters, relative curvatures, curved parts of different letters, fine quality, pen pressure, commencements and also the combination as well as connections between the letters and the strokes were found to be similar I also found similarities into two sets of writings through their different writing habits peculiar to the writer who wrote the specimen writings. The questioned documents were also showing similarities in respect of alignment, proportional sizing of the letters, relative heights of the letters, the nature of final strokes of the different letters which in combination were sufficient and significant enough to prove the questioned writings and the standard writings are in the same manner."
In our view, there is no reason to discard the opinion in view of the detailed explanation given as above. Once it is established that the inland letter (Exhibit 22) was written by the Accused, it becomes clear that at the time of writing of that letter, the child was with him. The address on that letter is in the handwriting of Amit and that is proved by Chandrakant N. Sonawane (P.W.1) and Dnyanoba N. Sonawane (P.W.2). The writing inside the letter contained the threatening message. It contains the statement that child is in the custody of the author. Then it contains the demand for Re.1 Lakh or else the child will be killed. This clearly establishes the charge of kidnap for ransom and extortion.
22. That apart, there is the recovery of an amount of Rs. 1427/- on the person of the Accused when he was arrested on 17th July 2000. Thereafter, there is the evidence of one Sunil B. Panchakale (P.W.15) to the effect that on 11th July 2000 the Accused had paid him Rs. 5,000/- and then there is the evidence of A.P.I. Pandurang L. Shejale (P.W.22) to the effect that on 18th July 2000, an amount of R.s 30,420/- was recovered from the residence of the Accused as per the lead given by the Accused. From among the currency Notes recovered on the person of the Accused, 7 Notes had numbers which were from among the 20 which were noted when the ransom a amount was kept at the Gurhal. There is no explanation given by the Accused with respect to these amounts in his Statement under Section 313 of Criminal Procedure Code. He was a manual worker required to do the work of polishing the furniture for earning his living. He has not explained as to how he paid Rs. 5000/- to Sunil B. Panchakale (P.W.15) on 11th July 2000 and as to how Rs. 30,420/- were found at his residence on 18th July 2000. This is apart from Rs. 1427/- found on his person out of which the number of 7 notes tallied with 7 number of the 20 from the Rs. 50,000/- deposited. All these amounts can be clearly related to Rs. 50,000/- deposited by C.N. Sonawane (P.W.1) at the Gurhal on 10th July 2000 and which amount was lifted therefrom. A clear presumption is available under Section 114Ill(a) of the Evidence Act in such a case. In the case of Gulab Chand v. State of Madhya Pradesh , the Accused sold ornaments of the deceased immediately on the next date of the murder. The stolen articles were recovered at his instance from his house within 3 to 4 days of murder. No plausible explanation was given by the Accused for their possession. The Apex Court held that the presumption under the said section was available to the prosecution that the Accused had committed the robbery. The illustration states that a man who is in possession of the stolen articles soon after the theft is either a thief or has received goods knowing them to be the stolen unless he can account for the possession. In the instant case, there is no explanation forthcoming from the Accused and, therefore, flows the inference that these amounts are from the amount of Rs. 50,000/- collected by way of ransom.
23. All the aforesaid ingredients clearly point out and establish that the Accused had kidnapped Amit on 4th July 2000 for ransom and then he got the amount of Rs. 50,000/- extorted under the threat that otherwise the child will be killed. Thus, as far as the charges under Sections 364A and 384, Indian Penal Code against the Accused are concerned, there is no difficulty in accepting that the same had been convincingly proved by the prosecution.
24. Now, we come to the second question as to whether the prosecution has established that the Accused committed a murder of the child Amit after kidnapping and then destroyed the evidence. For that they have led evidence which is circumstantial in nature. This is apart from their submission that once kidnapping is established, the burden is on eh Accused to explain as to what happened to the child, and if he fails to explain it, the charge of murder will stick to him.
25. As far as the charge under Section 302, Indian Penal Code is concerned, it has been stated in the evidence of Chandrakant N. Sonawane (P.W.1) that on 17th July 2000, two Policemen from the Neera Out Post took him to the Rawadi Farm House where Police from Satara were also present along with Dr. sudhakar M. Bhokare, Medical Officer (P.W.11). The Accused had been rounded up and he had shown the spot where the skeleton was discovered. Shri Sonawane (P.W.1) identified the clothes and the articles found near the skeleton as those which were worn by the deceased at the time when he left his house. For identification of the skeleton, a photograph of the deceased was super-imposed on the photograph of the skeleton and evidence was led to that effect. That is how the prosecution has sought to establish the case of Amit having been murdered by the Accused.
26. Now, as far as the discovery of the skeleton is concerned, the Accused gave a Memorandum of Statement under Section 27 of the Evidence Act to show the place where he had committed the murder. That Memorandum Panchanama is at Exhibit 79. Shri Satish S. Pawar (P.W.14) has deposed that he was called by the office of L.C.B. Satara in the morning of 17th July 2000 and the Police Officer informed him that he will listen as to what the Accused was saying. The Accused told him and the other Pancha that he will show the spot where Amit killed and accordingly that Memorandum Panchanama was recorded and the Panchas signed thereon. The witness has proved the Memorandum Panchanama in Court by identifying his signature. He stated in his evidence that thereafter face of the Accused was covered except his eyes and all of them boarded the Police jeep. The driver took the jeep as per the instructions of the Accused. He took it from Satara via Lonand road, then to Kalegaonphata and thereafter the jeep was taken towards Sakharwadi. The jeep was halted in the agriculture field at village Rawadi Budruk belonging to the Agriculture Corporation The Accused got down from the jeep and took all of them at a distance of 100 to 150 feet inside the field where the sugarcane crop was standing. Foul smell was emanating from the spot. The Accused showed the spot where a skull and other bones were lying. P.W.14 also noticed one Khaki half-pant and one underwear and a black coloured Kardoda lying nearby. The Accused also took them at the distance of about 50 feet and took out one white shirt hidden in the soil. At that time, Dr. Sudhakar M. Bhokare, Medical Officer (P.W.11) and father of the child (P.W.1) were present. The father identified the articles which were seen as those belonging to his sons. He also identified a comb which was found in the pocket of the pant. The Medical Officer examined the bones in his presence.
27. The Medical Officer who had accompanied them i.e. Dr. Sudhakar M. Bhokare (P.W.11) noted that a skull and the bones were lying on the spot. The Medical Officer stated in his evidence that Shri Sonawane (P.W.1) identified the bones on the basis of the clothes. He found the second molar tooth was in eruption stage of upper jaw and, therefore, opined that the bones must be of a child of 12 to 14 years of age. He also stated that after 7 to 8 days of the death, the muscle from the body start vanishing. He recorded that the bones were foul smelling.
28. The prosecution then examined one Dr. Netra H. Gadre, Associate Prof. in B.J. Medical College, Pune, attached to Anatomy Department as P.W.12. She had received a reference from the Jejuri Police Station and along with their letter, had received the following bones:-
Skull without mandible, 2 femurs, 14 ribs, 1 scapula, 1 clavicle, 1 piece of hip bone and 18 vertebra.
She gave an opinion that there was no evidence of any injury, age of the deceased was around 13 years and no opinion could be given about the sex. She gave the approximate age of the person as 13 years on the basis of the upper part of jaw. She further stated that the bones were not completely ossified.
29. The prosecution lastly relied upon the superimposition method for proving that the skull was that of Amit. That was done by Shri Dilip Y. Desai, Assistant Chemical Analyser in the Forensic Science Laboratory, Mumbai. He received the photograph of the victim and it was developed to the desired size. Then the photograph of the skull was taken. Negative photograph of the face of the victim and the skull were exposed on the same printing paper in such a way that the same was super-imposed. Thereafter, a final opinion was given that the skull was that of Amit. Shri Desai was examined as P.W.10.
30. As far as the manner in which the Accused killed Amit is concerned, the Accused gave a Memorandum on 19th August 2000 stating that he had killed Amit by accord like strip and that he will show that strip. This statement was recorded at Exhibit 52 in the presence of Panchas and one Balasaheb R. Zagade (P.W.9) was the Panch along with another Panch. This Balasaheb Zagade deposed in the Court to prove the Memorandum which was marked Exhibit 52. He then stated that the Panchas and eh Police were taken by the Accused through a Police jeep to Rawadi Budruk. The Accused then took them inside the sugarcane crop. He stopped near a thorny bush between two Nilgiri trees and took out a red coloured nylon strip from the bush. The seizure panchanama was thus proved by this witness and was marked Exhibit 53. The plastic strip was marked Article 8.
31. On behalf of the defence, it was submitted that in the evidence of Zagade (P.W.9), it has come that when the Accused was brought from the lock-up, he was handcuffed and, therefore, the subsequent discovery at this instance was not proper. As against that, it was submitted by the prosecution that he was bound to be in the handcuff when he was brought from the lock-up. However, it is no where stated that while giving the Memorandum or later-on showing the place where the strip was placed, the Accused was in handcuffs. The discovery cannot be faulted on that count. As far as the articles found near the child are concerned, it was put to Sonawane (P.W.1) that at the time of giving his missing Report, he had informed the Police that his son had put on a white half shirt and the name of the school was mentioned on the pocket of shirt as Mahatma Gandhi Vidyalaya. That writing was not seen on the shirt and, therefore, it was submitted that the said shirt was not that of Amit and that identification of the skeleton as that of Amit was faulty. As against that, it was argued on behalf of the prosecution that the child was with the Complainant when they had gone to the shop earlier in the morning. Thereafter, Amit had gone home and then to the school. It is, therefore, possible that Amit might have changed his shirt, which fact Sonawane (P.W.1) might have missed. It was submitted on behalf of the Accused that the bones were by and large clean. The kidnapping had taken place on 4th July 2000, whereas on 17th July, the skeleton was found. It was submitted that in such a short span of 13 days, such a putrefaction will not take place. In this behalf, Ms. Kejariwal, learned APP, relied upon Parikh's Textbook of Medical Jurisprudence and Toxicology to support the case of prosecution. In the chapter on putrefaction under the heading "Other Sequelae", it is stated that sutures of the skull in the children and young persons may become loose and the liquefied brain substance may run out. Thereafter, it is stated that fact flabby bodies of children contain plenty of moisture and putrefy rapidly. She submitted that since this body was lying in the open in an agriculture field, vultures, wild animals and insects were bound to act on it leaving behind only a few bones which could happen in a very short span.
32. As far as the method of super-imposition is concerned, Ms. Kejariwal relied upon a judgment of the Apex Court in the case of Ram Lochan Ahir v. State of West Bengal which has laid down that the super-imposed photograph of the deceased over the skeleton of a human body was admissible to prove the identity of the skeleton under Section 9 of the Evidence Act. The Apex Court had laid down certain guidelines in that matter and they had been followed in the present case as well.
33. That apart, Ms. Kejariwal submitted that once the prosecution established that the child had been kidnapped, it was the responsibility of the Accused to explain as to what had been done to him when he gave his statement under Section 313 of Criminal Procedure Code. In the instant case, it is the Accused who showed the place where the skeleton was found. The Panchas have brought on record that at the residence of the Accused a black Samurai motor cycle was found and at his instance an amount of Rs. 30,420/- was discovered in a drawer of the television. Sunil B. Panchkale (P.W.15) had given the evidence that the Accused had paid Rs. 1,500/- earlier and then Rs. 5,000/- on 11th July 2000. On all these aspects, he was asked questions and given an opportunity go vive his explanation under Section 313 of Criminal Procedure Code. He had given a stock answer that all those statements were false. Now, there is no reason for the Police to plant such an amount over Rs. 30,000/- at his residence and for another witness Sunil Panchakale (P.W.15) to come and say that he had been paid Rs. 6,500/- and to produce that amount. There was also no reason for the Police to plant the skeleton which was found at the instance of the Accused. The refusal of the accused to give the explanation, when provided an opportunity and giving false answers, provides an additional link in the chain of circumstances to complete the chain.
34. In this behalf, Ms. Kejariwal relied upon the judgments of the Apex court in the following cases:-
(i) Kuldeep Singh and Ors. v. State of Rajasthan reported in (2000) S.C.C. 7, (ii) Joseph s/o Kooveli Poulo v. State of Kerala and (iii) Anthony D'Souza and Ors. v. State of Karnataka . In Para-14 in the case of Anthony D'Souza and Ors. v. State of Karnataka (supra), the Apex Court observed as follows:-
"By now it is a well-established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under Section 313 against the established facts, that can be counted as providing a missing link for completing the chain."
The same proposition is laid down recently in the case of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai .
35. As far as the discovery of the skeleton at the instance of the Accused is concerned, Ms. Kejariwal referred to a judgment of the Supreme Court in the case of State of Maharashtra v. Suresh . That was a case of rape and murder of a minor where the body of the deceased was recovered from the spot pointed out by the Respondent-Accused. The Apex Court observed in Para-26 of S.C.C. as follows:-
"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanations to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodies in Section 27 of the Evidence Act."
36. As far as the deceased having been seen last with the Accused as per the evidence of the two witnesses, Ms. Kejariwal relied upon a judgment in the case State of West Bengal v. Mir Mohammad Omar and Ors. to submit that in such cases the principle underlying in Section 106 of the Evidence Act will come into force, namely, that when any act is especia lly within the knowledge of any person, the burden of proving that fact is upon him. If the deceased child is last seen with the Accused, then he must explain as to what has happened to the child thereafter. The judgments in the case of Sahadevan alias Sagadevan v. State and State of Maharashtra v. Suresh (supra) also lay down the same proposition.
37. Having noted the case laws as cited above, in the facts of the present case, there are certain established facts which emerge viz. that firstly, the threatening letter which was written by the Accused and the handwriting thereof is proved by the Handwriting Expert; secondly, substantial amount is recovered from the person of the Accused, from his residence and the amount given by him to Sunil B. Panchakale (P.W.15) and thirdly, the evidence of two witnesses to the kidnapping. All these factors lead to unmistakable conclusion as stated earlier, namely, that Amit was kidnapped by the Accused. Thereafter, at the instance of the Accused, this skeleton had been found. It is, therefore, expected of the Accused to explain as to whose skeleton it was. If he does not explain it, the needle of suspicion will be attracted to him and that apart as the deceased was last seen with the Accused and since he had declined to explain the circumstances appearing against him, the charge of murder and destroying of the evidence will stick to him. We, therefore, do not find any error on the part of the learned Sessions Judge in arriving at the conclusion that the Accused had committed the murder and then destroyed the evidence.
38. Then comes the last question as to what should be the appropriate punishment. The learned Sessions Judge has referred to a few authorities in this behalf and considered the factors for and against awarding the death sentence before deciding upon the death sentence. It is a settled position in law that though death sentence can be awarded in the evident of murder, as held by the Constitution Bench in the case of Bachan Singh v. State of Punjab reported in AIR 1982 S.C. page 898 (Para-206), life imprisonment is the rule and death sentence is an exception. That is also the view reiterated later-on by the Apex Court in the case of Machhi Singh v. State of Punjab . Ms. Kejariwal, learned APP, submitted that the present case should be considered as one from the rarest of rear category, wherein death sentence is to be awarded. She submitted that an innocent child, who had reposed full faith in the Accused, has been killed inspite of the Accused collecting the ransom which showed a depraved state of mind. She emphasized that the child was way-laid and kidnapped and taken to a farm adjoining to the village and strangulated over there by using a nylon strip. The manner in which the child was killed should also be a factor to be considered. She submitted that it must also be borne in mind that the Accused was charged for kidnapping and murder of a child in one more case. (Sessions case No. 10 of 2001 at Satara).
39. Ms. Kejariwal relied upon three judgments of the Apex Court to submit that in the case of kidnapping and murder of children, death sentence was apt. Firstly, she relied upon the judgment in the case of Henry Westmuller Roberts v. State of Assam . That was a case wherein Henry and three others entered into a conspiracy to kidnap the minor children in three districts of Assam with a view to extort ransom. Three of them were employees of ONGC and fourth one was an employee of a contractor under ONGC. (Para 5 of the judgment). In that case, a child named Sanjay was kidnapped by Henry during a festival outside a temple. Evneafter the child was murdered, the father of the child was made to believe that the body was alive, and was asked to pay the ransom. It is only when Henry went to make one such phone call that he was arrested near the Public Call Office. The Apex Court confirmed the death sentence awarded to Henry. One of the conspirators Sunil was convicted under Section 365, Indian Penal Code and the plea that he should also be sentenced to death, was turned down. The other Accused were acquitted.
40. The second judgment relied on by Ms. Kejariwal was in the case of Sevaka Perumal etc. v. State of Tamil Nadu . That was a case wherein the two Accused conspired to entice innocent boys from affluent families for ransom and to murder them. They executed four such murders in a span of five years. In view of the depravity and hardened criminality, the Apex Court confirmed the death sentence, though a plea was made that they were young and the bead winners of the family.
41. Ms. Kejariwal lastly relied upon a judgment in the case of Mohan and Ors. v. State of T.N. . In that case, four Accused kidnapped a young boy for ransom and brutally murdered him. Even after killing the boy and disposing of the dead body in a brutal manner, accused No. 1 went on to demand and succeeded in collecting the ransom from his father. (Para 2 of the judgment). The Apex Court confirmed the death sentence of two of the Accused but other two conspirators, who had lesser role, were sentenced to imprisonment for life.
42. Mr. Apte, leaned Counsel appearing for the Accused, on the other hand, submitted that the entire case of the prosecution and particularly the charge of murder was sought to be established only by circumstantial evidence. Without prejudice to his submission that the charge was not established, he submitted that it sought to be borne in mind that the Accused was a young person and appears to have been misguided by the idea of becoming overnight rich by indulging into such methods. He further submitted that the method of killing the child was sought to be proved only by discovery of a strip of nylon and there was no direct evidence as to how the child was killed. Therefore, his contention was that the present case should not be considered as one falling in the rarest of rare category and death sentence should not be confirmed.
43. Mr. Apte pressed into service the following observations of the Apex Court in the case of Subhash Ramkumar Bind alias Vakil and Anr. v. State of Maharashtra :
"27. Ours being a civilised society - a tooth for a tooth and an eye for an eye ought not to be the criterion and as such the question of there being acting under any haste in regard to the capital punishment would not arise: rather our jurisprudence speaks of the factum of the law courts being slow in that direction and it is in that perspective a reasonable proportion has to be maintained between the heinousness of the crime and the punishment......"
In that matter, the Apex Court did hold that the murder was brutal but yet held that brutality, by itself, will not bring it within the ambit of rarest of rare cases. (Para 27 of the judgment)
44. We have given anxious consideration to the submissions made by both the Counsel. As far as the law on the subject is concerned, it has been laid down time and again by the Apex Court and particularly by a Constitution Bench in the case of Jagmohan Singh v. State of U.P. that the sentencing discretion is to be exercised judicially on well recognised principles after balancing of the aggravating and mitigating circumstances. After referring to Jagmohan's case, a Constitution Bench stated in Para-195 in Banchan Singh's case (supra) that (i) the extreme penalty can be inflicted only in gravest cases of extreme culpability and (ii) in making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also. Thus, the Court laid down that the aggravating circumstances as well as mitigating circumstances have to be taken into consideration. In Paras 200 and 204 of that judgment, the Court noted with approval the various aggravating and mitigating circumstances suggested by the Counsel. As far as our matter is concerned, the two aggravating circumstances which we must note as laid down by the Apex Court amongst other were (a) if the murder has been committed after previous planning and involves extreme brutality and (b) if the murder involves exceptional depravity. Amongst the seven mitigating circumstances mentioned, from our point of view, those at Sr. Nos. 2, 3 and 4 are relevant. They are as follows:-
(2) The age of the Accused. If the Accused is young or old, he shall not be sentenced to death.
(3) The probability that the Accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the Accused can be reformed and rehabilitated. The State shall by evidence prove that the Accused does not satisfy the conditions 3 and 4 above.
In Para-205, the Court emphasized that the factors like extreme youth can be of compelling importance.
45. In Para-207, the Apex Court observed as under:-
" .....it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal) and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood-thirsty. .....It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
46. In this connection, it will also be apt to refer to the observations of the Apex Court in Paras 10 and 11 of a recent judgment in the case of State of Karnataka v. Puttaraja where death sentence was confirmed. Paras 10 and 11 of that judgment read as follows:-
"10. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of the gravity of crime, the discretionary judgment in the facts of each case is the only way in which such judgment may be equitably distinguished."
"11. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be."
47. Out of the three judgments relied upon by the prosecution, it is seen in the case of Henry Westmuller Roberts (supra) that the four Accused had entered into the conspiracy to kidnap the children in the three districts of Asam. It is as per a previous plan that they kidnapped and killed the particular child. They were all persons gainfully employed with a public corporation and still they resorted to this method to become rich overnight. Yet the Apex Court restricted the death sentence to Henry who played the main role in kidnapping the child for ransom and murder. In Sevaka Perumal etc. (supra), the two Accused had killed four children in a span of five years which clearly showed that they were persons beyond any reform. In Mohan v. State of Tamilnadu (supra), two of the Accused were sentenced to death, whereas two others, whose role was not diabolical or depraved, were sentenced to imprisonment for life. Para-13 of that judgment discloses the horrible and brutal manner in which the child was given poison, mixed in a fruit-drink, tortured and then strangulated. The dead body of the child was kept in an empty T.V. box and then dumped in an unused well to compound the brutality.
48. Now, turning to the facts of the present case, the aggravating factors are that a non-suspecting child has been done away in spite of collecting the ransom or may be the child was killed first and then the ransom was collected inasmuch as the prosecution has not been able to prove clearly as to what happened first. In any case, the fact remains that an innocent child reposing confidence in the Accused has been killed by him for ransom. It is also a factor to be noted that the Accused was changed for a similar offence in another case from Satara, though the prosecution has failed to sustain the conviction in Appeal, which we have separately decided today. (Criminal Appeal No. 1326 of 2000). There is however no doubt that the murder in the present case was brutal. As far as the mitigating circumstances are concerned, it must be noted that at that time the Accused was just 24 years of age with hardly any occupation and without much education. This is only to note his circumstances, though this certainly cannot be an explanation for such a heinous crime. We have noted the facts and circumstances of our case on the backdrop of the three cases cited by prosecution where the facts were extremely gross. We cannot ignore the dicta of the Constitution Bench in the Bachan Singh's (supra) that age of the Accused and his circumstances have to b kept in mind. Besides, death sentence is to be imposed when the alternative option is unquestionably foreclosed as held in that case and where the probability that the Accused can be reformed, is totally ruled out. In these circumstances, we do not consider this case as one from the rarest of rare to award death sentence. An imprisonment for life would be the appropriate punishment and not death.
49. At the same time, we have to keep in mind that the Accused led the child outside the village and even the dead body of the child could not be traced. All that could be traced was a skeleton and the torn clothes of the child which were discovered only after the lead given by the Accused under Section 27 of the Evidence Act. The learned Sessions Judge has, therefore, convicted the Accused under Section 201, Indian Penal Code also for causing disappearance of evidence and has rightly sentenced him for a period of five years and to pay a fine of Rs. 1,000/- in default, to suffer further RI for six months. In the case of Ravindra Trimbak Chouthmal v. State of Maharashtra where the murder was most foul and where the Appellant had killed his wife and cut her to nine pieces and put in suit-cases, the high Court had awarded death sentence and seven years RI under Section 201, I.P.C. The Apex Court commuted the death sentence to life, but it directed in Para-11 of the judgment that sentence under this Section 201 will run consecutively and not concurrently. Even in the case of Ronny v. State of Maharashtra where the three Accused were condemned to death in an offence involving robbery, murder and rape of known persons, the supreme Court commuted the sentence of life imprisonment but directed the sentence to life imprisonment but directed the sentence under Section 376 to be suffered consecutively. In our view, a similar approach will be appropriate in the present case. Causing of disappearance of the dead body has to be dealt with sternly and separately which will place on record a strong disapproval of such methods. In the present case, the punishment under Section 201, I.P.C. must run consecutively and which we direct accordingly.
50. Though we are commuting sentence from death to life, in this connection, we must note that a further remission is possible under the rules, though Section 433A of the Code of Criminal Procedure places restriction on power of remission or commutation. It lays down that where a sentence of life imprisonment is imposed (for which offence, death is the alternative punishment under the law) or where death sentence is commuted into imprisonment for life, the person shall not be released from prison unless he had served at-least 14 years of imprisonment. This leads to a possibility of a convict being released after completion of 14 years of imprisonment. The State of Maharashtra has framed guidelines for premature release on 11th May 1992 and thereunder it is provided that wherever death sentence is commuted to life, the period of imprisonment to be undergone including remissions subject to minimum 14 years of actual imprisonment (including set off period) will be 30 years. In such cases after the remissions are considered the period of actual imprisonment normally works out to somewhere around 20 years. In the present case, it will be much more since the Accused is sentenced to suffer additional imprisonment under Section 201 of I.P.C. However, by way of caution, we make it clear that the Accused shall not be released from prison unless he serves out at-least 20 years of his actual imprisonment which will, however, include the period already undergone. This was the approach adopted by the Apex Court in the case of Prakash Dhawal Khairnar (Patil) v. State of Maharashtra where the Accused had killed his brother, brother's wife and children (though out of frustration since his brother was not partitioning the allegedly joint property). Though it was a henious and brutal crime, considering the entire facts and circumstances, the Apex Court did not hold it to be from the rarest of rare category and reduced the punishment from death to life imprisonment. The Court, however, directed that the Accused-Appellant will suffer imprisonment for life and will not be released unless he serves out 20 years of imprisonment including the period he had undergone.
51. In the circumstances, although we do not confirm the death sentence imposed on the Accused, all other parts of the impugned order convicting and sentencing him for the various offences are retained. The death sentence will stand altered to imprisonment for life for the offences under Section 302 and 364A, Indian Penal Code. All other punishments will remain as they are. The punishment under Section 302, 364A as well as Section 384 will run concurrently but not the one under Section 201. The Accused shall undergo the punishment awarded by the Sessions Court under that Section consecutively i.e. in addition to the sentence under Section 302, 364A and 384, Indian Penal Code. The Accused shall not be released until he has actually undergone minimum imprisonment of 20 years. He will not be entitled to any furlough leave and if he is required to be given parole on any occasion, that will be under the strict supervision and responsibility of the concerned Police Station. The confirmation case is decided accordingly. The Criminal Appeal stands allowed partly as above. Before we conclude, we would like to record our appreciation for the assistance rendered by the Counsel for the parties and particularly, Mrs. Kejariwal, learned Additional Public Prosecutor. With this order, both the proceedings stand disposed of. A copy of this judgment will be sent to the jailor, Yerwada Central Prison, Pune.