Gujarat High Court
Rameshkumar Bhaverlal Jain vs State Of Gujarat on 18 June, 2001
Equivalent citations: 2001CRILJ4069
JUDGMENT R.K. Abichandani, J.
1. These appeals arise out of the judgement andorder passed by the learned Additional City SessionsJudge, Ahmedabad on 2nd January 1990 in Sessions Case No.296 of 1988, convicting the original accused No.1(appellant of Criminal Appeal No. 141 of 1990) for theoffences under sections 302, 201, 363, 343, 343, 364, 365 and 120B of the Indian Penal Code, and sentencing him toimprisonment for life for the offence under section 302 of the IPC and to suffer rigorous imprisonment of sixmonths for each of the other offences which were to runconcurrently, and imposing a fine of Rs.200=00, indefault, to undergo rigorous imprisonment for one month.The State has appealed (Criminal Appeal No. 161 of 1990)for enhancement of the sentence praying for imposition ofdeath sentence on the original accused No.1 on the groundthat this was a rarest of rare cases warranting deathpenalty as the said accused No.1 / appellant hadcommitted a cold-blooded murder of his two young cousinsaged 4 years and 7 years, and had acted in a cruel andunusual manner. The original accused No.2 - SandipDinkarlal was acquitted and no appeal has been preferredagainst his acquittal.
2. The charge framed against the accused at exh.2alleges that, on 19th April 1988, around 6.00 o'clock inthe evening, these two accused persons i.e. RameshkumarBhanvarlal Jain and Sandip Dinkarlal and one otheraccused Mukesh Shantilal Jain (who is said to be ajuvenile accused) had kidnapped minors Rakesh and Harsh,who were the sons of the complainant - Ghisumal Jain,from his lawful guardianship in order that a big sum ofmoney may be extorted or in order that they may bemurdered, and thereby, committed offences under sections 363 and 364 of the IPC. It was further charged thatthese two accused had, after kidnapping Rakesh and Harsh,kept them in wrongful confinement in Block No. 44/339 ofKalapinagar and committed their murder by causinginjuries and thereby, committed offences under sections 302, 342, 343, 368 and 385 of the IPC. A further chargewas that these two accused persons, with the intention ofscreening themselves from legal punishment, had causedthe evidence of commission of offence of murder todisappear or had attempted or had tried to destroy theevidence, and thereby, committed the offence undersection 201 of the IPC. Having levelled individualcharges under sections 363, 364, 302, 342, 343, 368, 385 and 201 of the IPC, the Charge proceeded to furtherallege that these two accused and Mukesh Shantilal hadentered into a criminal conspiracy to kidnap Rakesh andHarsh for the purpose of extorting a big amount of moneyfrom the complainant - Ghisumal Jain and committed theirmurder and caused disappearance of the evidence of theoffences, and thereby, committed offences under sections 302, 201, 342, 343, 363, 364, 368, 385 read with section 120B of the Indian Penal Code. On the same facts, itwas also alleged that these two accused had acted infurtherance of their common intention and a separatecharge was framed for the offences under the aforesaidprovisions read with section 34 of the Indian Penal Code.An independent charge for abetment of these offences wasalso framed against these two accused persons in contextof the provisions of section 114 of the IPC.
2.1 The prosecution version was that Rakesh and Harshwho were 7 years and 4 years of age respectively had goneto play in the evening at about 6 o'clock in the openspace adjoining their flat (Julie Apartments). As theydid not come back till 7 o'clock, their mother phoned upGhisulal and told him that they could not be tracedaround the area where they had gone to play. Thecomplainant Ghisulal, therefore, came from his shop andtried to find out his sons. As the children could not betraced out, he informed the police that they were lost.In the morning, his complaint was recorded as per exh.125 in which he had stated that, after the children werelost, he had received telephone calls six to seven timesand someone was just saying `hello' and keeping thereceiver back. According to the complainant, thechildren were kidnapped on 19-4-1988 while they had goneto play.
2.2 On 20th April, 1988, the search for tracing outthe children continued. On 21st April 1988, at about2.55 p.m., a telephone call was received by thecomplainant at his residence, in which someone had saidthat his children were with him and if he wanted themback, he should give Rs.5 lakhs. Thereupon, thecomplainant said that Rs.5 lakhs was a big amount. Theperson who had telephoned had then said, he may come withRs.2 lakhs near the Roopali cinema in the evening at 5.00p.m. Earlier, the complainant had arranged for histelephone being kept under observation and therefore, thetelephone from which the said call came was traced out asTelephone No. 68116. The said telephone was installedin the house in which the accused No.2 - Sandip DinkarlalSanghvi resided in Sujata Flats, Shahibag.Thecomplainant had gone with money in a briefcase nearRoopali Talkies in the evening at 5 o'clock. He hadalready informed the police about the demand. The policehad accompanied him in plain clothes. However, no oneturned up in the evening for collecting the ransom amountand the complainant, therefore, returned at 6 o'clock.His attempt to trace out the children continued, but invain.
2.3 On 24th April 1988, dead body of the younger sonHarsh was found near village Bhaat. The prosecution caseis that the appellant - accused No.1 had taken the keysof the house of one Purshottambhai from his son Vishnu,who was his friend for the purpose of reading for the12th Standard examination. The said accused No.1 RameshBhanvarlal Jain, alongwith Mukesh Shantilal Jain, used tovisit the said house in Kalapinagar (Block No. 44, HouseNo. 339). From 20-4- 1988, they were seen by the nearbyresidents going in that house. Foul smell startedemitting from that house since the morning of 23rd April1988 and on being questioned, the accused No.1 - Rameshhad told the neighbours that a cat had died in the houseand that he would take steps to get it removed. As thefoul smell continued, the residents became restless andwent to Parshottambhai for asking him to get his housecleaned. At Parshottambhai's place, his two daughterstold the neighbours that the keys of the house were withthe accused No.1, and that they will do the needful.Vishnu, therefore, went to the house of the accused No.1on 28-4-1988, but could not meet him, but left a message.However, since the accused No.1 did not turn up in theevening, Vishnu again went to his house on the next dayi.e. on 29th April 1988 in the morning and while he wassitting in that house with a relative of the accusedNo.1, the police had come there and taken him to theShahibag police station and from there, to theSardarnagar police chowky, and at that place, he hadidentified the keys of his house which he had given toRamesh and which were recovered from the accused No.1Ramesh. According to the prosecution, the accused No.1had purchased the cardboard box and other things duringthe period that the bodies of these two children werelying in the said house and on the morning of 24th April1988, he had alongwith Mukesh taken the dead body ofHarsh tied up in a chaddar and a pillow cover and put inthe cardboard box which the accused No.1 had purchased on23rd April 1988 and taken the dead body for its disposalnear village Bhaat where they had dug up a pit in whichthey placed the dead body and had gone away on thescooter. That scooter is said to have been stolen on 4thApril 1988. Initially, the accused No.1 - Ramesh used togo on a cycle, but around 20th April 1988, he startedgoing on the said scooter at the said house.
2.4 The dead body of the other child Rakesh wastraced out from that house, in a decomposed state tied ina bundle and locked in the lavatory, on 29th April 1988when the accused No.1 Ramesh is said to have led thepanchas and the police to that place.
2.5 The prosecution version is that the accused No.1had, thus, kidnapped these two minors from the lawfulguardianship of their uncle Ghisumal Jain in the eveningof 19th April 1988 and kept them wrongfully confined inthe said house, and that this was done pursuant to aconspiracy between him and Mukesh to extort money fromhis uncle, and that as per the medical evidence, thesechildren were killed around 22nd April 1988 and theaccused No.1, with the help of Mukesh, clandestinelyremoved the body of Harsh in a cardboard box tied in achaddar and a pillow cover and disposed it off by placingit in a pit near village Bhaat and the accused No.1 hadalso secreted the body of Rakesh by tying it in a bundleand locking it in the lavatory of the said house till itwas recovered at his instance on 29-4-1988.
3. The accused no.1, who was of 18 years of age atthe relevant time, pleaded not guilty. From the record,it appears that the accused No.1 - Ramesh Bhanvarlal Jainalso used to sign his surname as `Mehta' and there is nodispute about it. The case of this accused is of totaldenial. In his statement under section 313 of the Codeof Criminal Procedure, he admits having taken the keys ofVishnu Purshottambhai's house in Kalapinagar for thepurpose of study around February 1988. He admits that heused to go to that house for reading purpose. He hasadmitted that, at times, Mukesh used to come with him.When he was confronted with the deposition of witnessSomabhai that one short statured person used to come tothat house with him, he admitted that Mukesh used tosometimes come with him in that house. The accused No.1filed a written reply at exh. 244, in which he statedthat though he had taken the key of Vishnu's house, hehad returned it to him after the examination was over inMarch 1988, and that thereafter, he had never enteredthat house. He has stated that, on 29th April 1988, whenhe was arrested by the police, he was not having the keysof that house. He has stated that he had only shown thehouse of Vishnu to the police and that he did not knowthat there was a dead body lying in it. According tohim, he had not gone to Bhaat village, and states thatwitness Bhikhabhai and Pramukhbhai who are said to haveseen him there, were lying and that the neighbours ofKalapinagar were falsely implicating him. He has deniedthat he had used the stolen scooter which belonged toIndulal. In his statement, he has further stated that heknew Mukesh and Mukesh used to sometimes accompany him tothe house in the Kalapinagar before the examination, andthat he had not met him after the examination. He hasfurther stated that he had not purchased the muddamalcardboard box from witness Narayan Chauhan, nor had hepurchased the jute rope (Bhindi) from witness Sundarmal.He has stated that he had no reason to kill sons of hisuncle and that he had in fact helped his uncle in tryingto trace out the children. He has also denied that hehad purchased perfume from witness Mohammad Miya. He hasstated that he had purchased medicines from witness Dr.Kantilal, who is having his dispensary opposite the housein question, but that was in February 1988.
4. The trial Court marshalled the evidence underthree heads, each pointing at the important circumstancewhich indicated involvement of the accused No.1 in thecrime. The first head was the finding of the dead bodyof Rakesh from the house No. 44/339 in Kalapinagar whichwas in possession of the accused No.1, the foul smellwhich was coming from that house, to which the neighbourshad deposed and the fact that the neighbours had told theaccused No.1 - Ramesh about it, who tried to mislead themby saying that there was a dead cat lying in that house.The other head of circumstance, as discussed by the trialCourt, was in respect of finding out of the dead body ofHarsh from near village Bhaat and the movement of theaccused No.1 - Ramesh in connection therewith showingthat he had dumped that dead body in a pit near villageBhaat. The third head of circumstantial evidence was thepurchase of the cardboard box, rope, perfume etc. by theaccused No.1 from various shops on 23rd April 1988 and28th April 1988 which shops were shown to the panchas byhim after he was apprehended and the shop ownersidentified him as the person who made these purchases.The trial Court also took into account the fact that thekeys to the house were recovered from the accused No.1,and that they were given to him by Vishnu and furtherthat the bed-sheet (chaddar) and the pillow cover inwhich the body of Harsh was found to have been tied andplaced in a cardboard box and which was found nearvillage Bhaat, were the chaddar and pillow coverbelonging to Vishnu and which were taken from said houseat Kalapinagar. The trial Court took into account alsothe circumstance that the accused No.1 had used thestolen scooter for carrying the dead body of Harsh tovillage Bhaat where he was found digging a pit andplacing the body in the pit and thereafter, going away onthe scooter alongwith Mukesh by two witnesses. From thefingerprints which appeared from two soft drink bottles,recovered from the said house at Kalapinagar, which wereproved by expert evidence, the trial Court found thatMukesh Shantilal Jain was also involved as he used tocome alongwith the accused No.1 in the house from whichthese bottles were recovered. From the medical evidence,it was noted that both the children were done to death bystrangulation, and that it was possible to carry the bodyof the younger child Harsh in the cardboard box which was18" x 13" x 16" in size, after it was tied in a chaddarand a pillow cover. As per the medical evidence, thedeath of Harsh could have been caused between 48 and 96hours prior to the post mortem examination which wasconducted on 25th April 1988, while the death of Rakeshcould have been caused between 5 to 7 days prior to thedate of his post mortem examination which was conductedon 29th April 1988. In paragraph 45 of its judgement,the trial Court enumerated as many as thirteencircumstances for holding that the chain of thosecircumstances clearly established that the accused No.1Ramesh Bhanvarlal Jain had, with the help of hiscompanion, committed murder of both these children. Itwas found that Mukesh, the juvenile accused, was alsowith him in commission of the crime and that there was acriminal conspiracy between him and Mukesh. The accusedNo.1 was, therefore, convicted for each of these offencesand sentenced, as stated above. The accused No.2 wasacquitted for paucity of evidence against him.
5. The learned counsel appearing for the appellantaccused No.1 submitted that, while it cannot be deniedthat death of both these children was homicidal, therewas no reliable evidence to connect the accused No.1 withthe crime. He submitted that there was no motiveestablished which would have prompted the said accused tocommit the murder and there was absolutely no evidence toshow that these boys were kidnapped by the accused No.1.It was submitted that, even the father of the deceasedboys did not implicate the accused No.1 either in thecomplaint or in his deposition, and that the accused No.1was in fact helping him in trying to trace out thechildren after they were missing in the evening of 19thApril 1988. The learned counsel argued that the keys tothe house in Kalapinagar from which the dead body ofRakesh was recovered, were taken by the accused No.1 fromVishnu in February 1988 and were returned to Vishnu inMarch 1988 after the examination was over. It was alsosubmitted that there may be duplicate keys, a suggestionwhich no one ever made till the arguments of the learnedcounsel. It was further contended that no nexus wasestablished between the prosecution case as to the demandof ransom and any role played by the accused No.1. Itwas argued that the accused No.1 could not have imaginedthat conspiracy to extort money would end in murder ofhis cousins. It was submitted that the circumstantialevidence relied upon by the trial Court was notsufficient to prove any conspiracy. It was contendedthat the other alleged conspirator Mukesh was not beforethe Court as he was to be tried separately as a juvenileoffender and therefore, conspiracy could not have beeninferred. It was further contended that, from thetelephonic demand of ransom on 21st April 1988 at 2.55p.m. and other telephonic message said to have beenreceived thereafter by the complainant, it appears thatthere may have been other persons who may be pursuing thesame end, and that the connection between such personswho made the demand and the accused No.1 was notestablished. It was submitted that, having regard to theage of the accused No.1, his relations with the victimsand the fact that there was no enmity between him and hisuncle, there was no possibility of the accused No.1agreeing to any conspiracy to commit these offences andthe circumstances before, during and after theoccurrence, do not indicate involvement of the accusedNo.1. It was contended that a false explanation was onlyan addition in the chain of circumstantial evidence whichis required to be established independent of such falseexplanation of the accused.
6. The learned Public Prosecutor, on the other hand,submitted that this was a case which warranted impositionof death penalty, because, two minor children who wererelated to the accused No.1 and who must have trusted himfor protection, were murdered by the accused No.1 afterbeing kidnapped and taken to the house in which theaccused No.1 had locked them up and after killing themlatter, disposed of the body of Harsh. It was submittedthat the accused No.1 gave a false explanation to theneighbours with a view to mislead them by saying that thefoul smell emitting from the house was of a dead cat. Hesubmitted that the purchase of cardboard box on 23rdApril 1988 for the purpose of removing the body of Harshin the morning of 24th April 1988 for being taken tovillage Bhaat for hiding it in a pit, and the purchase ofother materials, such as, jute cloth, rope, perfume, jutestring etc. on 28th April 1988 which were to be used fortying the body of Rakesh, which was found locked in thehouse till 29-4-1988 when the accused No.1 showed it,proved that he was involved in the commission of thecrime, and that he was trying to destroy the evidence bydisposing of the dead bodies of these two children. Itwas submitted that the time of death of these children,as per the medical evidence and the evidence of theneighbours who have deposed about the foul smell comingout of the house, was around 22nd April 1988. It wassubmitted that since the appellant was informed by thecomplainant after the ransom call was received by him at2.55 p.m. on 21st April 1988, no one turned up forcollecting the ransom in the evening at 5 o'clock nearthe Roopali Cinema which suggested that the informationmust have passed on from close quarters to those whodemanded the ransom and this was followed by the death ofthese two innocent children.
6.1 Relying upon the decision of the Supreme Court incase of Machhi Singh v. State of Punjab reported in 1983SCC (Cri.) 681, learned Additional Public Prosecutorsubmitted that murder of these two innocent youngchildren warranted death penalty. It was submitted thatfalse denial by the accused No.1 was itself anincriminating circumstance, on the authority of thedecision of the Supreme Court in case of Earabhadrappaalias Krishnappa v. State of Karnataka reported in 1983SCC (Cri.) 447.
7. In reply, the learned counsel for the accusedNo.1 reiterated that there was no direct evidence toprove the involvement of the accused No.1 and thatcircumstantial evidence was not sufficient to convict theaccused No.1 for the offence of murder or the offence ofcriminal conspiracy. He submitted that since the matterrested on circumstantial evidence, and no gain by theaccused No.1 was proved and as a long time had elapsedafter the commission of the offence when the accused washardly 18 years of age, this case did not warrant deathpenalty.
7.1 The learned counsel appearing for the accusedNo.1 relied upon the following decisions in support ofhis contentions :
[a] Ramkishan Mithanlal Sharma v. State of Bombay reported in AIR 1955 SC 104 was cited for the proposition that in the case of test identification parade arranged by the police and held in the presence of panch witnesses, their statements involved in the process of identification would be statements made by the identifying witnesses to the panch witnesses and would be outside the purview of section 162 of the Code of Criminal Procedure provided the process of identification is carried out under the exclusive direction and supervision of the panch witnesses and the police had completely obliterated themselves from the parade. However, where the test identification is carried out by the police in their presence, no distinction can be made between the statements made to the police officers and the statements made to the panch witnesses called by the police officers when conducting the test identification parades.
[b] P.K.Narayanan v. State of Kerala reported in 1995 SCC (Cri.) 215 was cited for the proposition that the ingredients of the offence of criminal conspiracy are that there should be agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal, and therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence.
[c] Kehar Singh v. The State (Delhi Administration) reported in AIR 1988 SC 1883 was cited for the proposition that entering into an agreement by two or more persons to do any illegal act or legal act by illegal means is very quintessence of the offence of conspiracy. It was held that, the Court must inquire whether the two persons are independently pursuing the same end, or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does.
[d] State of Kerala v. P. Sugathan reported in AIR 2000 SC 3323 was cited to show that, in criminal conspiracy, "There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence."
8. In the present case, there is no direct evidenceof eye witnesses to the crime of murder or kidnapping.The accused No.1 is said to have taken the keys of thehouse of Parshottambhai, father of his friend Vishnu andaccording to Vishnu, he had given him the keys of thehouse. According to the accused, he had taken the keysin February 1988 so that he can read in the house for his12th Standard examination which was to take place inMarch 1988. There is no dispute about the fact that thecomplainant - Ghisulal Jain is the uncle of the accusedNo.1 and that they were staying in Juli Apartments. On19th April 1988, Rakesh and Harsh had gone to play in theopen space near their house in the evening at about 6o'clock and thereafter, they were not traced. Thisaspect is borne out from the deposition of thecomplainant Ghisulal at exh. 124 and corroborated by hiscomplaint at exh. 125. He was at his shop when hereceived his wife's telephone about their two sons notbeing traced, and therefore, he rushed back from hisshop. On that evening, there was a hurricane. Thecomplainant informed the police at about 10 o'clock thatthe children were missing. The police recorded hiscomplaint exh. 125 on 20th April 1988. On 19th April1988 itself, after the children were missing, thecomplainant had received some telephone calls, but thecaller disconnected the line without saying anything. On21st April 1988, at about 2.55 p.m., he received thetelephone call, which as noted above was traced out to becoming from Telephone No. 681166, over his residentialTelephone No. 65453 in which the caller had stated,"Aapke Bachey Mere Paas Hai, Aapko Chaihey?" (Yourchildren are with me, do you want them?). He furtherstates that the caller had asked for Rs.5 lakhs and whenhe said that it was a big amount, the caller told him tobring Rs.2 lakhs near Roopam Cinema at 5 o'clock in theevening on that day. The complainant informed the policeabout this. Earlier on 19th April 1988 night, he hadasked the Telephone Department to keep his telephoneunder observation. After receiving the phone call at2.55 p.m. on 21-4-1988, he had gone at 5 o'clock nearRoopali Cinema and stood there with money in hisbriefcase for about an hour, but no one turned up andtherefore, he returned at 6 o'clock. There is no reasonto doubt the complainant's version that he had received atelephone call asking for ransom on 21st April 1988 at2.55 p.m., if he wanted his children back and that he hadgone with the amount of Rs.2 lakhs in a briefcase in theevening at 5 o'clock. It transpires from the evidence ofthe police witnesses that the complainant was accompaniedby police personnel in plain clothes since he had alreadyinformed the police about the telephone call seekingransom amount for the release of his children. The factthat the person seeking ransom at 2.55 p.m. andrequiring the complainant to come with the amount at 5o'clock near Roopali Cinema did not turn up, in light ofthe complainant's statement that he had informed thepolice about the telephone call, clearly indicates thatthe person seeking ransom was alerted about the policehaving been informed so that he may not go to collect theransom in the evening at 5 o'clock and get caught. Afterhe received the telephone call at 2.55 p.m. seekingransom, the complainant received another phone call at3.30 p.m. in which he was told that if police wasinformed by him, he will not get his children.Ultimately, the dead body of the younger son Harsh whowas 4 years of age, was recovered from near village Bhaaton 24th April 1988, while the dead body of the elder sonRakesh who was 7 years of age, was recovered from thehouse bearing Block No. 44/339 in Kalapinagar in adecomposed state.
9. The dead body of Harsh was examined on 25th April1988 by Dr. Deshmukh (PW- 29, Exh. 130), who wasProfessor of Forensic Medicine in the B.J. MedicalCollege for post mortem. He commenced the examination at12.20 hrs. noon and concluded it at 2.45 p.m. on 25thApril 1988. On examination, he found that it was a deadbody of a male child about 4 to 5 years of age. Both theclothes on the dead body were soiled with products ofdecomposition. Rigor mortis had passed out from the deadbody. Post mortem lividity was present on back aspectappearing as dark greenish red. Features of dead bodywere bloated distended with gas. Epidermis was peelingoff. The dead body was blackish red with greenishdiscolouration over abdomen joints etc. It was emittingfoul smell. There were maggots over neck, face, oralcavity and cluster of fly eggs present on scalp hair.The following external injuries and wounds were noted :
"(1) At the neck, because of decomposition and bloating due to gases in tissue, a fold of skin with crease was appreciated on front aspect. A band of ligature mark with paleness at its base was present on neck over the lower part of Thyroid Cartilage and upper part of Trachea with bruising at the margins. The bruising at margin was about 0.5 cms wide and well marks at upper border of the ligature mark. It was better appreciated after removing the decomposing epidermis from the neck. The bruising red in colour had been present in full thickness of skin and underlying plalysma muscle. The redness persisted even on washing the area and incised skin with swab. The width of ligature mark is about 1.0 to 1.5 cm. The ligature mark was extending horizontally across the sides of neck, backwards encircling the neck. It is faintly appreciable. The injuries were antemortem in nature."
The internal injuries were as under :
"(1) The muscles on the front and sides of neck are pale under the base of ligature mark. They show bruising of the marginal areas for about 0.5 to 1 cm width. The left sternomastoid muscle is bruised at the course of ligature.
(2) The underlying ribbon muscles on front of neck are also bruised at both the marginal areas of ligature course.
(3) The wall of trachea under the course of ligature is bruised.
All the organs and viscera are affected bydecomposition. Stomach and intestine were empty. Therewas little amount of faecal matter at small firm lumps inascending and transversed colon was present. The organswere congested."
8.1 The medical expert opined that the death was dueto asphyxia as a result of strangulation and it occurredwithin 48 to 96 hours of the post mortem examination.Therefore, the death occurred between 21st April 1988 and23rd April 1988. The post mortem notes are proved atexh. 131. The injuries noted by the medical expertwere, according to him, sufficient in the ordinary courseof nature to cause death. The ligature marks on the neckwere possible by rope and compressing it by applyingforce.
9. The same medical expert was called on 29th April1988, at about 3.30 p.m. at house No. 44/339 inKalapinagar, where a bundle in which the dead body ofRakesh was tied and which was emitting foul smell ofdecomposition had been opened and the medical expert sawthat dead body in an advanced stage of decomposition. Heobserved that maggots were crawling on the body,particularly on his face, neck and chest and also onquilts (`godris'). He saw fly maggots and pupas lying inthe latrine where the bundle containing the body wasearlier kept. He was told by the police that they hadtaken out the bundle from the lavatory and kept it in theroom. The body was shifted to the Civil Hospital and hehad done the post mortem examination between 5.25 p.m.and 7.45 p.m. He had noted that the dead body was lyingon a white `godri' and there was a `kantan' (i.e. jutecloth) with a jute rope lying under the `godri'. The`kantan' and the upper `godri' were covering the lowertwo - third part of the dead body. The `godris' (i.e.quilts) were soaked in products of decomposition andmaggots were crawling on the body and the `godris'. Theclothes of the child were soaked in products ofdecomposition. The T-Shirt was stained with hemolyzedblood. Between two `godris', a foil of Becozyme `C'Forte of ROCHE make and a foil of Paracetamol of AvaranMedicare, both containing five tablets, were found andfour small packets (padikas) of paper containingmedicinal tablets were also found. The body was emittingfoul smell. The maggots were white and brown. There wasloss of eyes, eyelids, skin and muscle from left side offace including nose, lower jaw, centre of upper jaw,scalp and muscle etc. The underlying bones were exposed.The floor of the mouth and the tongue were missing. Thescrotem was inflated with gases. A groove mark appearingas impression of rope was present on outer aspect andfront part of left leg.
The external injuries and internal injuries andwounds noted by the medical expert were as under :
"External injuries and wounds :
(1) Ligature mark brown in colour was present at back of neck at right postero lateral aspect at lower part at the level of 5th cervical spine, extending horizontally medially for 3.5 cm length. It was about 1.0 to 1.5 cm wide. Its base is grooved and epidermis is adherent.
(2) Another ligature mark was present 1.5 cm above external injury No.1 extending horizontally medially and nearly parallel to No.1. It is about 3.5 cm long and about 0.75 to 1.0 cm wide having character similar to No.1.
(3) The ligature mark external No.1 was traceable to left side of back of neck for about 1.5 cm length.
(4) Ligature mark was present over left antero lateral aspect of lower part of neck but in the level of upper part of trachea and extending slightly upward and medially for about 1 cm length. It was about 1.5 cm wide. It was in the line of lower ligature mark i.e. ext. No.1 and 3. Its medial end was about 1 cm left from the mid-line.
Internal injuries :
(1) Bruising of the skin dermis and muscles round underneath and at the margins of the ligature mark described already i.e.under ext. injuries.
Bruise was of red colour. The skin and muscles over left upper and mid parts of post lateral aspect and left upper postero lateral aspect were missing because of advanced decomposition. The lungs were congested. All the organs in the dead body were affected by decomposition. Brain was liquified. The spleen was nearly liquified. The liver was sponging flabby, softened, the lungs were soft and flabby. Stomach and small intestine was empty. Faecal matter was present in sigmoid colon and in rectum. Viscera was preserved."
9.1 The Supreme Court has in Daryao Singh v. State ofM.P. (1991) 2 SCC 588 held as under :
"Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity. Body changing colour and emitting foul smell, are the two special characteristics of the decomposition process. The first external evidence of putrefaction is the formation of greenish discoloration of the abdominal skin over the iliac fossae which occurs within six to twelve hours in summer and spreads all over the body within twelve to eighteen hours of death. As time passes they deepen in colour and become purple. With the spread of bacteria, there is gradual development of gases in the intestines within twelve to eighteen hours and liquifaction also takes place and soon spreads to other parts of the body. Putrefaction thus results in general disintegration of the tissues due to residual enzymatic activity in the cells causing widespread formation of gases emitting foul smell and if the body is exposed, as in the present case, flies lay eggs on exposed wounds forming maggots. The body gets bloated and liquified, the skin loses coherence, the superficial layers peel off easily and blisters are formed."
9.2 The post mortem report is proved at exh. 132.As per the final opinion of this medical expert, thedeath was due to asphyxia as a result of strangulation.This opinion at exh. 134 was given after considering theF.S.L. Report. In a reply to exh. 136 to the query bythe police, he had opined that, in both the cases, theligature material appeared to be like that of a rope andthat the death of Rakesh had occurred five days beforethe time of post mortem examination. In paragraph 24 ofhis deposition, he has stated that it is probable thatRakesh would have died at a time before 5.30 p.m. of24th April 1988 and the upper time limit could be withinseven days which would mean that, Rakesh as per themedical opinion had been killed between 22nd April 1988and 24th April 1988.
10. The medical opinion thus indicates the time ofdeath of both the children around the same date i.e.22nd April 1988. It will be recalled that, afterreceiving the call demanding ransom over the telephone at2.55 p.m.on 21st April 1988, according to thecomplainant, he had received another phone call at 3.30p.m. informing him that he would not get the children ifthe police was informed. In fact, he had alreadyinformed the police when the call was received as histelephone was already kept under observation. Though hehad gone with the ransom amount near Roopali Cinema at5.00 p.m., as required over the telephone at 2.55 p.m.by the caller, no one appeared for collecting the ransomamount, presumably because, the police was informed whichfact came to be known by the caller. The accused No.1 inview of the nature of his involvement as is proved by theevidence on record, would have been such personinterested in informing about the police having beenalerted by his uncle, because, even according to thecomplainant, after the children were missing, the accusedNo.1 used to come to the complainant's house. Therefore,he had every opportunity to know about the fact that thepolice was already informed by the complainant about thecall which he received at 2.55 p.m. on 21st April 1988demanding ransom.
11. The positive involvement of the accused No.1 inthe crime is borne out from very cogent evidence whichhas been led for showing that the house No. 44/339 ofKalapinagar was being visited by this accused between20th April 1988 and 28th April 1988. The accused No.1had obtained the keys of that house from his friendVishnu and the keys came to be recovered from him at thetime when he was arrested on 29th April 1988. The deadbody of Rakesh was admittedly found from this house,locked in the lavatory. According to the prosecution,accused No.1 had led the panchas to the house and thehouse was opened by the keys which were recovered fromhim. The prosecution has also led very cogent evidenceto show that this accused No.1 had given a false excusefor the foul smell which was coming out due to thedecomposition of the body, by stating to the neighboursthat it was a foul smell of a dead cat. The prosecutionhas led reliable evidence to show that accused No.1 hadmade purchases of cardboard boxes, jute rope (bhindi),jute cloth (kantan), jute string (sutali) for tying thebodies and for removing them from the house and had alsopurchased perfume for fighting with the foul smell.
11.1 There is another set of witness examined by theprosecution which again showed the direct involvement ofthe accused No.1 in disposing of the body of the youngerchild Harsh near village Bhaat and as per that part ofevidence, the accused No.1 alongwith his friend Mukeshhad taken the dead body of Harsh, tied in a `chaddar' anda pillow cover and put in cardboard box, on a stolenscooter. He was seen by two witnesses near village Bhaatwhere he and his friend had dug up a pit in which thedead body of Harsh was dumped and they had gone away onthe scooter, which was earlier stolen on 4th April 1988and was identified by one of the witnesses of villageBhaat who had seen them.
12. Vishnubhai Parshottam Chauhan, PW-3, who hasdeposed at exh. 31, was a friend of the accused No.1.According to him, the accused No.1 - Ramesh was to appearat the 12th Standard Examination and therefore, he hadasked for the keys of his house in Kalapinagar. Afterconsulting his parents, he gave the keys of the house tothe accused No.1. He has stated that their neighbour inKalapinagar one Vallabhkaka had, in April 1988, come tohis house stating that there was severe foul smell comingfrom his house and a cat had died in it, and that theyshould get it cleaned. On the next day, the otherneighbour Somabhai came and he also complained of foulsmell and told them that if they did not get it cleaned,he would make an application to break open the lock.Therefore, this witness went to the house of Ramesh inJuli Apartments, but could not meet the accused No.1Ramesh. On being asked by his parents as to why he hadcome, he told them that he had given the keys of hishouse to the accused No.1 and that he wanted them back,because, foul smell was coming out of the house. Thefather of the accused No.1 told him that Ramesh had goneto the shop and would come in the evening. As theaccused No.1 did not turn up in the evening, this witnessagain went to his house on the next morning i.e. 29thApril 1988. Again, the accused No.1 was not there andone of his relatives had told him that he had gone to hismaternal uncle's house. The relative of accused no.1 hadstarted asking him questions. While he was sittingthere, the police had come and he was taken to theShahibag police station and from there, to SardarnagarCamp police chowky. He was shown the keys which heidentified as the keys given by him to the accused No.1Ramesh. He has stated that these keys were returned bythe accused No.1 - Ramesh after the 12th Standardexamination of Gujarat was over, but he had taken themagain because he was to appear in the 12th Standardexamination of Karnataka. There was absolutely no reasonfor this witness to falsely implicate his friend, theaccused No.1, whom he had given the keys for readingpurpose.
12.1 The fact that the keys of the said house wererecovered from the accused No.1 - Ramesh, is amply borneout from the other reliable evidence on record. PanchBabubhai Madhavlal Patel, PW-2, has deposed at exh. 27that, on 29th April 1988, when the arrest panchnama ofthe accused No.1 was drawn as per exh. 28, these threekeys were found from the right pant pocket of the accusedNo.1. The fact that these three keys were found from theright pant pocket of the accused No.1 at the time of hisarrest panchnama exh. 28 and the fact that the keys weretaken out and given to the panchas, is amply borne outfrom the contents of the panchnamas exh. 28 and exh. 29and they corroborate the say of the panch witness aboutthe recovery of these keys from the accused No.1 andabout the accused No.1 having led the panchas to the saidhouse Block No. 44/339 of Kalapinagar which was openedby these keys by the panchas. The belated suggestion atthe time of the arguments before us that there may havebeen a duplicate set of keys is not warranted, because,had there been a duplicate set of keys, Vishnu would nothave gone twice to collect the keys from the accused No.1for opening his house when the neighbours werepersistently complaining about the foul smell from thehouse.
13. Vallabhbhai, PW-5, who has deposed at exh.33,stated that the accused No.1 (whom he earlier knew asPavan and later came to know that his name was Ramesh andwhom he identified as the person who used to come to thesaid house No. 44/339 in Kalapinagar), had told him thatfoul smell was coming, because, a cat had died in thehouse and that he will get it cleaned. This witness hadgone to Parshottambhai's house on the next day as thefoul smell increased and told the daughters ofParshottambhai about it. He was told that they did nothave the key and that it was lying with the person towhom the house was given for reading purposes. On thenext day, the other neighbour Somabhai and one otherperson had also gone to Parshottambhai and complained.This witness resides in house No. 44/340 and accordingto him, they had suffered this nuisance of foul smell forabout 6 to 7 days. He has stated that he had gone toParshottambhai's house on 27th April 1988 and Somabhaihad gone there on 28th April 1988. This witness had noenmity against the accused No.1 and there is no reasonwhy he should be falsely implicating him.
13.1 The other important witness who was residing inthe adjoining house wherein Block No. 44/338 is,Somabhai Patel, PW-8, who in his deposition at exh. 36,has stated that the accused No.1 was known to him asPavan and later on, he came to know his real name Rameshand that, this person, whom he identified, used toearlier come and read in the house in March 1988. He hasthen stated that, around the period when there was ahurricane in Ahmedabad, he used to come with a shorterboy on a racer bicycle. Around 20th April 1988, hestarted coming on a grey coloured scooter. Around 23rdApril 1988, the accused No.1 and the younger boy had comeand that the younger boy had asked Vallabhkaka andKashiben as to why foul smell was coming from their houseand was told by Kashiben that it was not coming fromtheir house. He further states that it was noticed thatthis foul smell was coming from the house ofParshottambhai. On the next day i.e. on 24th April1988, the accused No.1 had gone on a scooter at a fullspeed when this witness was in his shop and therefore, hecould not contact the accused No.1. On 25th April 1988,early in the morning, the accused no.1 and the youngerboy were seen near the scooter in the front of theirhouse and when he had come out of the house ofParshottambhai, Kashiben had shouted at him to dosomething about the foul smell and he had replied that hewould bring a sweeper as the cat had died and will get itremoved and after that, both of them had gone away on thescooter. Thereafter, Vallabhkaka had gone toParshottambhai on 25th or 26th April 1988 to complainabout the foul smell and returned and told this witnessthat he had talked to the daughters of Parshottambhaiabout it and they had said that Parshottambhai or Vishnuwill go to the house of the accused No.1 and get the keysfor getting the house cleaned. On the next morning, thiswitness and one Azizbhai had gone to Parshottambhai'shouse at 10.00 o'clock and again complained to his twodaughters about the foul smell and told them thateveryone was upset and that they should get it cleaned,otherwise they would inform the police. Both thedaughters had told them that Vishnu will get the keysfrom the accused No.1 and any how get the house cleaned.This happened on 28th April 1988. Thereafter, at about1.30 p.m. to 2.00 p.m., the accused No.1 had come to thesaid house. He was having jute cloth pressed in hisarmpit. When this witness saw the accused No.1, he wentnear him and told him to get the house cleaned. Theaccused No.1 told him, "Boss, Chinta Mut Karo, Abhi SaafKara Dunga" (Boss, don't worry, I will get it cleanedimmediately). Thereafter, the accused No.1 opened thelock of that house and entered in it. He appearednervous and therefore, this witness offered to him help,but the witness was not allowed to go in the house. Theaccused No.1 closed the outer grill and also closed thedoor from inside. After about half an hour, he had comeout; and when his wife called him, this witness was inhis shop and before he could come, the accused No.1 hadgone away. According to this witness, when he came nearthe said house, they all could get a smell of perfumemixed with the foul smell. On 29th April 1988, thepolice had come to their place and the accused No.1 wasalso with them. In his cross examination, he has statedthat the foul smell had started coming from the morningof 23rd April 1988, and it was increasing day by day.This witness is perfectly a natural witness and there wasno reason for him to falsely implicate the accused No.1.His complaining about the foul smell emitting from thehouse of Parshottambhai was a natural reaction, because,he was the adjoining owner. He had no reason at thattime to suspect that it was a foul smell of a human bodyand when he was given the false explanation by theaccused No.1 that the foul smell was of a dead cat, hereadily accepted it and expected the accused No.1 and theowner of the flat Parshottambhai to get the housecleaned. According to him, the foul smell started comingfrom morning of 23rd April 1988, which again tallies withthe time of death of these two children which was in caseof Harsh 48 to 96 hours prior to the date of his postmortem examination that took place on 25th April 1988 andin case of Rakesh, 5 to 7 days before the date of hispost mortem examination which was carried on 29th April1988.
13.2 Abdul Pathan, PW-6, who has deposed at exh.34,was having a tailoring shop in a portion of the premisesof block No. 44/338 and was a tenant of Somabhai, hasalso stated that the accused No.1 used to initially comeon a bicycle and later, he was coming on a grey colouredscooter and one other younger boy was also coming withhim. He has given the registration number of thatscooter as GJ-I-3675. That is the scooter which wasstolen on 4th April 1988, in respect of which a complaintwas filed and later on, it was recovered and wasidentified as having been used by the accused No.1 whenhe had gone alongwith younger boy Mukesh carrying thedead body of Harsh for its disposal by tying it in a`chaddar' and pillow cover and keeping it in a cardboardbox, near village Bhaat. According to this witness,there was a foul smell coming out of the house No.44/339. He has identified accused No.1 as the person whoused to come to that house. He has also stated thatVallabhkaka had complained about the foul smell toParshottambhai on 27th April 1988 and Somabhai had alsogone to Parshottambhai on 28th April 1988 in that regard,and that they were told that, after getting the keys fromthe accused No.1, they will get it cleaned. He had seenRamesh getting out of the said house on 28th April 1988in the afternoon. In his cross examination, he hasadmitted that he did not hear any child crying from thathouse, nor any one banging the doors.
14. The depositions of Vallabhkaka, Somabhai andAbdul Pathan clearly establish that the accused No.1 usedto come to the said house, and that initially he wascoming on a bicycle and thereafter, he started coming ona scooter and the younger boy used to accompany him. Thedepositions of these witnesses clearly establish that thekeys of the house were with the accused No.1. He wasseen opening the house even on 28th April 1988. Theprosecution has satisfactorily established that theaccused No.1 was in exclusive possession of the saidhouse during the period in question, and he was seencoming there on 20th April 1988 and thereafter till 28thApril 1988. He was seen going on the scooter which wasearlier stolen and one of the witnesses Abdul Pathan hadample opportunity to see the number of the scooter whichwas parked near the house, because, he was working as atailor in the adjoining premises belonging to Somabhai.There is therefore absolutely no substance in thecontention that the keys of the house were not with theaccused No.1 at the relevant time, and that he had nevertaken them back after he returned them earlier to Vishnu.It is satisfactorily established from the prosecutionevidence that the foul smell started coming from thehouse of Parshottambhai ( No.44/339) around the morningof 23rd April 1988, and that on being asked, the accusedNo.1 tried to mislead these witnesses by stating that thefoul smell was of a dead cat. It is also establishedthat Mukesh Shantilal used to accompany the accused No.1in the said house. The accused No.1 was seen goinginside the house even on 28th April 1988 and he did notallow Somabhai to enter the house when Somabhai offeredto help him in removing the dead cat. He remained insidethe house for half an hour and thereafter, had gone away.Soon thereafter, the residents found that, with the foulsmell, fragrance of scent was also coming. Thus, theaccused No.1 tried to take steps to reduce the foul smellby using perfume which he had purchased on that day. Theevidence of these witnesses residing in Kalapinagar alsoestablishes that the accused No.1 was coming on a scooterduring the period between 20th April 1988 and 28th April1988 and that for about a week, his bicycle was lyingnear the `Pan Galla', as stated by Somabhai in hisdeposition at exh.36. The accused No.1, in his statementunder section 313 of the Criminal Procedure Code whenasked about the short younger boy, has admitted thatMukesh used to come alongwith him at times in the saidhouse. From the deposition of the prosecution witnessesresiding in Kalapinagar, it appears that the same youngerboy Mukesh tried to pose as if they did not know fromwhere the foul smell was coming, by telling Vallabhkakaand Kashiben that the foul smell was coming from theirhouse but Kashiben who was the wife of Vallabhkakareplied to him that it was not coming from their house.The evidence discloses that fingerprints of Mukesh werefound on the two bottles of soft drinks which wererecovered from the said house. The prosecution evidencehas also established that the scooter bearingregistration No. GJ-I-3675 was being used by the accusedNo.1 and the accused No.1 and the said younger boy usedto come to the said house in Kalapinagar on that scooter,as stated by the prosecution witness Abdul YakubkhanPathan in his deposition at exh.34.
15. The fact that the accused No.1 had led thepanchas on 29th April 1988 to the house in which the deadbody of Rakesh was lying and of which the keys wererecovered from the accused No.1, is clearly borne outfrom the deposition of panch witness - Babubhai Patel,who has fully supported the prosecution and iscorroborated by the panchnamas exh. 28 and 29. In thearrest panchnama at exh.28 which is proved by thiswitness, the fact about the said three keys having beenfound from the right pant pocket of the accused No.1 ismentioned. Even in the panchnama at exh.29 which wasdrawn in presence of these witnesses, that fact is statedand the particulars of these keys are noted. The keyswere thus recovered from the pant pocket of the accusedNo.1 and the accused No.1 led the panchas to the housebearing No. 44/339 in Kalapinagar, and the house wasopened by one of the three keys which were recovered fromthe accused No.1. When they entered the front room,there was an empty soda water bottle lying there and foulsmell was coming. Then they entered the next room whichwas dark and very foul smell was coming in that room.Empty boxes of incense sticks were lying. From thatroom, they went in the next room which was locked, byopening that lock by using the keys shown by the accusedNo.1. Very foul smell was coming from that room. Therewere a mattress and two pillows lying in that room withblood stains. From that room, they went in the nextroom, adjoining to which was a bathroom and a lavatory.There was a pick-axe (trikam) without handle lying there.By one of the three keys which were recovered from theaccused No.1, the lock which was applied to the lavatorywas opened and an unbearable foul smell was coming fromthe lavatory. There was a bundle lying in the lavatorywhich was taken out from the lavatory and brought in theroom. It was tied with jute string (sutali). The twopanchas opened it. There was a dead body of a boy inthat bundle with maggots in it. There was a red T-Shirtand a red half-pant on the dead body. When the bundlewas opened, a steel bowl (vatka) with medicinal tabletsin it was found. At that time, people from ForensicScience Laboratory had come and a photographer had alsocome. In that room, there was one steel `lotta' withsand in it and there was empty packet of incense stickslying. There was also a bottle of scent (Aattar) lyingthere. There was one medicinal bottle. There was onesteel `thali' lying on the floor, behind which there wasa writing in a ball-pen to the effect that, "The deadbody of two children was in our possession". There was amattress (gadla) with two pillows which had blood marksand maggots were seen. On the floor, there were marks ofblood below the `gadla'. There was a chisel (`chhini')and a big iron needle. In the front room, there wereempty boxes of biscuits, `chavana', slices of bread,empty boxes of incense sticks and bowl (vatka). Thepanchnama exh.29 was drawn of the seizure of variousitems which are mentioned by this witness. It isimportant to note that one of the items (article
32) wasa passbook belonging to the accused No.1. From thedeposition of panch witness Babulal and panchnamas atexh.28 and 29, it is clearly borne out that the keys ofthe house were recovered from the accused No.1 at thepolice station and he had led the panchas to the house inwhich the dead body of Rakesh was found, tied up in abundle and locked in the lavatory. Incriminatingarticles were seized under the panchnama includingpassbook belonging to the accused No.1 of his savingsaccount no. 4773 in the Ahmedabad Mercantile CooperativeBank Ltd. were found from the said house.
15.1 We have seen the muddamal account passbook of theaccused No.1 of his Account No. 4734 which was recoveredfrom the said house under the panchnama exh.29. Thefingerprints on the two soft drink bottles which wererecovered from the said house were ultimately found to bethose of Mukesh Shantilal Jain, the short younger boy whoused to accompany the accused No.1 as per the evidence onrecord. The report of the Finger Print Bureau at exh.66establishes that the fingerprints found on the sprintbottle and the soda water bottle, were those of MukeshShantilal Jain. The prosecution evidence, therefore,clearly establishes that the accused No.1 was having thekeys to the said house bearing No.44/339 inKalapinagar, and that he was seen by the neighbouringwitnesses of Kalapinagar coming to that house with Mukeshon a stolen scooter, and that, after foul smell startedcoming from that house since morning of 23rd April 1988,the accused No.1 had given a false explanation to misleadthe neighbours by stating that it was a foul smell of adead cat lying in the house. The prosecution witnessVishnu had identified the keys at the police chocky andthese keys were recovered under the panchnamas at exh.28 and 29 when the accused No.1 was arrested and theaccused No.1 led the independent panchas to the saidhouse which was opened by the keys recovered from theaccused No.1 and the dead body was found tied up in abundle which was locked in the lavatory, which lock againwas opened by one of these keys recovered from theaccused No.1. The evidence of the witnesses residing inKalapinagar houses Nos. 338 and 340 of Block No.44 aswell as the evidence of the tailor who was having hisshop there, the recovery of the keys of the house No.339 of block No.44 from the accused No.1 and thediscovery of the body at the instance of the accused No.1from that house, are all a clear pointer to the fact thatthe accused No.1 was directly involved in the crime andthat, he was making attempt to dispose of the dead bodyof Rakesh which was still lying in the said house, afterhaving disposed of the dead body of Harsh in the morningof 24th April 1988, which fact is established by theother set of cogent evidence. Before we advert to thatpart of the evidence, we may note that the accused No.1had, as per the reliable evidence on record, madepurchases of certain items which were to be used by himin removing the dead bodies and he had also purchasedperfume (Aattar) to reduce the foul smell which wasemitting from the dead body of Rakesh which was lying inthe said house for a longer period.
16. The witness Naranbhai, PW-15, in his depositionat exh.104, has stated that he is having a shop inMahalaxmi Tea Depot near Delhi Darwaja and that in thatshop, they are also selling Jashwant Chhap TelephoneBidis. These Bidis are purchased in a big carton whichis covered in a jute cloth. The cartons are of cardboardbox and in one carton, there are 32,000 Bidis. There isa printed number on each cardboard box. He has statedthat, on 23rd April 1988, in the morning at about 10o'clock, one tall thin boy, whom he identified as theaccused No.1, had come and inquired for a cardboard box.This witness has stated that the cardboard box waspurchased by the accused No.1 from him for Rs.4=00. Thiswitness had identified the accused No.1. He alsoidentified the muddamal - cardboard box (article No.1)and the jute cloth in which it was packed (article 50),which was bearing the same number - 5591 written on thecardboard box. This is the cardboard box in which, asper the prosecution version, the dead body of Harsh wascarried by the accused No.1 and his companion Mukesh tovillage Bhaat, near which the dead body was dumped in apit on 24th April 1988 and later discovered.
16.1 Then there is evidence of Sundarmal, PW-16, atexh.105, who has deposed that, on 20th April 1988, theaccused No.1 with another shorter boy had come to hisshop and asked for `Bhindi' i.e. jute rope (used incots, as stated by this witness). He has stated that`Bhindi' is used by poor people in their cots. Accordingto him, the muddamal articles No.7 and 47 were the`Bhindis' purchased from him by the accused No.1.According to this witness, accused No.1 had purchased 700to 800 grams of `Bhindi' for Rs.8=00. He identified theaccused No.1 as the person who had purchased the ropefrom his shop.
16.2 Witness Mohammad Miya Ahmed Miya, in hisdeposition at exh.35, has stated that, on 28th April1988, accused No.1 had come to his shop at about 12.30 inthe noon to purchase `Aattar' and that he had purchased abottle of "Mogra Aattar" for Rs.8=00. This witnessidentified the accused No.1 as the person who hadpurchased the Aattar from him and also identified themuddamal article No.36 which was the bottle in which theaccused No.1 had purchased the `Aattar' from him.
16.3 Prosecution witness - Jagdishsinh Jadeja, in hisdeposition at exh. 110 has stated that the accused No.1had led them to the shops from where he had purchased`Bhindi' (jute rope), jute string (sutali), jute cloth(kantan) and a big needle, as stated in the panchnama atexh.111.
17. It is established from the deposition ofDahyabhai, at exh. 76, who was serving as AssistantExaminer that the disputed articles on the steel Thali,"25-Mr. Tamara bey chhokara aamari jode chai" (Mr. yourtwo children are with us), were written by the person whohad written the admitted writings mark A/1 to A/6. Thesaid admitted writings were of the accused No.1 - RameshBhanvarlal Jain. All this is borne out from thedeposition of Dahyabhai, exh. 76 and the materialforwarded to him under the letter at exh. 77 and hisopinion at exh. 80.
18. The prosecution evidence has clearly disclosedthat the dead body of the other child Harsh was foundfrom near village Bhaat. Witness Manharbhai, in hisdeposition at exh. 40, has proved the panchnama in thatregard. He has deposed about the fact that the dead bodyof Harsh was found tied in a bundle in a bed- sheet and apillow cover, which all were in a cardboard box ofTelephone Bidis. He has proved the panchnamas at exhs.30 and 41. There is reliable evidence on record to showthat the accused No.1, accompanied by his companionMukesh, had gone to the place from where the dead body ofHarsh was recovered. Witness Bhikhabhai Bharvad, in hisdeposition at exh. 37, has stated that, in the morningat about 6 o'clock, when he was proceeding from near hisfield, he had seen two boys digging a pit near theculvert. He, therefore, went back and informedVitthalbhai about the same.Thereafter, he andVithalbhai armed with a dharia and a lathi went to thatplace near those boys and asked them as to what were theydoing. They were told that the college boys were to comeand play there. On asking these boys as to from wheredid they come, this witness was told that they came fromMeghaninagar. Thereafter, this witness and Vithalbhaiwent to the field of this witness and the two boys wenttowards the road. According to this witness, he had goneto his field and stood there and saw that the boys hadgone on the road. According to this witness, after hewent to his field, he saw that the boys had put onebundle in the pit and then gone away. He has stated thatthe boys had come on a scooter. This witness identifiedthe accused No.1. In his cross-examination, he hasmaintained that, from the terrace of the room which wasin his field, he had seen the movement of the two boys.He had gone in the village and told the village personsthat two boys had kept the bundle from which smallportion of foot was seen and gone away.
18.1 Then there is evidence of Pramukhbhai Patel, atexh.39, who has deposed that, in the morning of Sunday atabout 7 o'clock, Bhikhabhai had shouted that somebody hadcome on a scooter and put a bundle and gone away.According to this witness, he has seen these two personswhile they were going towards Indira bridge; one was talland fair and the other was a medium built. They went onthe scooter which was driven by the tall person, whomthis witness identified as the accused No.1 in the Court.According to this witness, they had then gone to theplace where the bundle was buried. From the bundle, afoot was seen. In his cross examination, he stated thathe had seen the boys from a distance of 2 to 3 feet.When he had seen the foot in the bundle, he suspectedthat murder may have taken place. The evidence ofBhikhabhai and Pramukhbhai clearly establishes that, inthe early morning of 24th April 1988, they had seen theaccused No.1 accompanied by a shorter person identifiedas Mukesh Jain as per the panchnama exh.16 proved by PW-1who has deposed at exh.15, leaving the dead body ofHarsh, tied in the bed-sheet and the pillow cover in apit near village Bhaat.
18.2 Witness - Dipsinh, Police Patel of village Bhaat,in his deposition at exh. 121, has deposed to the effectthat, on 24th April 1988, when he was proceeding towardsKoteshwar for his work, he had noticed a crowd near aculvert. He had seen foot of a child and a box ofJashwant Chhap Bidi. He then went to call the police andreturned with the police sub inspector at the place wherethe body was lying.
18.3 The fact that the scooter bearing registrationNo. GJ-I-3675 was seen driven by the accused No.1 bothnear the house No.44/339 in Kalapinagar and also by thewitnesses at village Bhaat as a scooter which was drivenby the accused No.1, has been clearly established by theprosecution. Even witness Abdulbhai had given theregistration number of that scooter. The scooter wasultimately traced out as per the panchnama at exh.119 atmidnight between 28th April 1988 and 29th April 1988, asper the deposition of witness Dahyabhai.
19. The evidence brought on record clearlyestablishes that the accused No.1 had brought both theboys in the said house bearing No. 44/339 in Kalapinagarsoon after they were kidnapped by him and both the boyswere killed by strangulating them on or about 22nd April1988 in the said house and because of the foul smellcoming out of the house and the neighbours' inquiring,the accused No.1 with the help of Mukesh, had taken thebody of Harsh tied in the bed-sheet and pillow cover andput in the cardboard box to near village Bhaat when hetried to dispose of the body by burying it in the morningof 24th April 1988. The evidence establishes that theaccused No.1 had purchased the cardboard box on 23- 4-1988from the shop of Naranbhai, PW-15, at exh.104. It isalso established that the accused No.1, in the company ofMukesh, used to go in the said house where these twochildren were taken by him. It appears from the medicalevidence that the death of both the children took placebetween 21st April 1988 and 23rd April 1988.
20. As noted above, after receiving the telephonicdemand on 21st April 1988 at 2.55 p.m., the father ofthese children had gone to the spot at 5 o'clock in theevening near Roopali Cinema, but no one turned up. It isclear that, after the call for seeking ransom wasreceived by Ghisumal, the complainant, the party callingwas alerted and no one turned up at 5 o'clock in theevening to collect the ransom. It is obvious that,before the complainant Ghisumal could reach near theRoopali Cinema with the ransom amount, the person who hadtelephoned him was already alert. Unfortunately, thoughthe telephone from which the call came was traced out, nofurther information about the caller was forthcoming.Since the accused No.1 was in proximity with thecomplainant - Ghisumal, it is obvious that he came toknow immediately about the police accompanying Ghisumalat the time when he carried the sum of Rs.2 lakhs inresponse to the phone call which was received at 2.55p.m. The facts and circumstances which are establishedfrom the reliable prosecution evidence on record, clearlyindicate that the accused No.1 had taken the children whowere related to him and would have had no resentment ingoing alongwith him to the house bearing No. 44/339,which was at that relevant time in his possession. Hehad purchased valium tablets which had tranquilizingeffect. He also took the help of Mukesh who used toaccompany him. He had purchased the cardboard box, jutecloth, jute string, Bhindi, scent etc. for the purposeof removing the dead bodies of these children and hadsuccessfully removed the dead body of the younger childHarsh, but because of the foul smell emitting and theneighbours becoming alert, he was ultimately apprehendedwith the keys of the house in which he had tied up thebody of the other child Rakesh and locked it in thelavatory. Despite his young age, the conduct of theaccused No.1 has been established to be a very cool andcalculated. Both the children had confidence in himsince he was their near relative and having taken thechildren in the house which was in his exclusivepossession, he attempted to knock out a ransom.Obviously because his voice would be recognised by hisuncle, he used some other medium for putting in the callfor ransom. However, having come to know about thepolice being informed and accompanying the complainantGhisumal, he could not pursue the path of recovery ofransom. He was the earliest person who could have knownthat the police was alerted and would be accompanyingGhisumal when he had carried a sum of Rs.2 lakhs afterreceiving telephone call at 2.55 p.m. on 21st April1988.
21. There is no substance in the contention which issought to be raised on behalf of the accused No.1 thatthe two children might have been killed elsewhere andtheir dead body alone was brought in this house which wasat that time in the exclusive occupation of the accusedNo.1. There would be no point in bringing bodies ofthese children if they were killed elsewhere bystrangulation. Moreover, the evidence discloses that theaccused No.1 used to come to this house and was seenthere on 20th April 1988 onwards till 28th April 1988.The false explanation that he tried to give to theneighbours who asked him about the stench which wasemitting from the house that a cat had died in it, was aclear pointer to his guilt and this was obviously done tobuy time to dispose of the dead body of Rakesh, afterhaving disposed of the dead body of Harsh. The accusedNo.1 has all throughout acted in a cool and calculatedmanner, despite his young age. Having taken his twoyoung cousins to the said house and having kept them andtried to knock out the ransom amount, but on fearing thatthe police was already alerted and he would be detected,he strangulated both the children, disposed of the bodyof the younger child Harsh by removing it in aclandestine manner from the house and putting it in a pitnear village Bhaat, where he was seen by the twowitnesses alongwith his companion Mukesh. The evidenceclearly discloses that he had led the panchas to the saidhouse bearing No. 44/339 which was opened from the keyswhich were recovered from him and the dead body of Rakeshtied up in a mattress was recovered on 29th April 1988.As per the medical opinion, the death was caused between5 to 7 days before the post mortem was done on the bodyof Rakesh. The medical evidence indicates that both theboys were killed around 22nd April 1988 by strangulatingthem. This followed due to failure of the bid to extractthe amount on 21st April 1988 after the call for payingthe ransom amount was received by the father of these twounfortunate children at 2.55 p.m. on 21st April 1988.
22. The evidence clearly discloses that the accusedNo.1 - appellant was in the exclusive possession of thehouse No. 44/339 in Kalapinagar, the keys of which hehad taken from his friend Vishnu. Both the childrenRakesh and Harsh being cousins of the accused No.1 whowas staying in the same Housing Complex of JuliApartments and had even stayed in their house while hisparents were in Karnataka, were closely acquainted withhim and would have followed him without fear orresentment. The dead body of Rakesh was found from thesaid house after its keys were recovered from the accusedNo.1, who led the panchas to that house on 29th April1988. It was tied up in a quilt and jute cloth andlocked in the lavatory of that house. The evidenceclearly discloses that earlier in the morning of 24thApril 1988, the accused No.1 alongwith Mukesh took thedead body of Harsh for its disposal concealing in acardboard box and tied in a bed-sheet and pillow cover toa near village Bhaat and dumped it in the pit dug bythem. In the process, he had used the scooter which wasearlier reported to be stolen on 4th April 1988. Thesaid bed-sheet and the pillow cover were proved to bethose which were in the house No. 44/339 from thedeposition of Vishnu and the panchas, as proved by thepanchnama at exh.142 under which he had identified thesame as a bed-sheet and pillow cover which were in hishouse No. 44/339. Unless the dead body of Harsh wasbrought from the said house itself by the accused No.1tied in the said bed-sheet and pillow cover, these twoarticles would not have appeared at village Bhaat on 24thApril 1988 with body of Harsh tied in them. Thiscircumstance unequivocally establishes that the accusedNo.1 had tied the body of Harsh in the said bed-sheet andpillow cover and brought it concealed in the cardboardbox which he had purchased for the purpose on 23rd April1988, which was carried by him on the scooter with thehelp of Mukesh to village Bhaat and left in a pit dug bythem on the morning of 24th April 1988.
23. The contention of the learned counsel for theaccused No.1 was that even if it were to be held that thedead body of Rakesh was kept concealed in the said house,there was nothing to show that the children were broughtby the accused No.1 alive. According to him, thepossibility of their being killed else where and thenbeing brought to the said house for concealment cannot beruled out. There is absolutely no substance in thiscontention. The children were known to the accused No.1and would have readily accompanied him to the said house.There were biscuits and other eatables found lying inthat place. The william tablets which the doctor hadprescribed to the accused No.1 were also found there.The neighbours had not heard any shots of children orbanging of doors from that house. The children whotrusted their elder cousin brother had no reason to panicand would expect accused No.1 to be their protectorrather than destroyer and would have gone with him in thesaid house least suspecting that they were beingkidnapped. It is impossible to imagine that dead bodiesof these two children will be brought in the house afterthey were killed elsewhere by someone else, as was soughtto be urged. The accused No.1 would not, in normalcourse of conduct of any human-being, have brought thedead bodies of his cousins to a house of which he washaving the keys, if they were killed by someone elseoutside the house. It is impossible to conceive thatdead bodies of two children, 7 years and 4 years of age,would be brought by the accused No.1 to the house if theywere killed outside the house. Instinct to dispose ofthe dead bodies will be to put them off in a way that thedisposal is not linked with the accused and not to put itat a place which would directly implicate him. There wasno indication found in the house to infer that the deadbodies were brought in the house from somewhere else. Weare fully satisfied from the evidence that both the boyswere alive when taken to the house by their elder cousin- the accused No.1 and on the ransom attempt havingfailed due to the information given to the police by thecomplainant, both the boys were done away with by theaccused No.1, because, if they were allowed to remainalive, they would have disclosed to everyone that it wasthe accused No.1 who had kept them in the house, the keysof which were recovered from him. The accused No.1 hadtaken the help of Mukesh who used to accompany him to thehouse from which his finger prints were found on two softdrink bottles. The handwriting of the accused No.1 wasproved from the steel Thali recovered from the house, byexpert evidence. Since the ransom went haywire due tothe police being alerted which the accused No.1 must havecome to know as he had a natural access to thecomplainant's house, the accused No.1 was vitallyinterested in disposing of the boys so that he may not betraced out as the person who kidnapped them for ransom.The accused No.1 was taking help of Mukesh, whose fingerprints on the two soft drink bottles showed that he musthave remained in the said house for considerable time andthis would have facilitated the accused No.1 in alsogoing to the house of the complainant in Juli Apartmentswhere he too resided in a nearby block with a view tokeep a watch on the situation that was developing. Withthe help of sedatives and Mukesh, accused No.1 was ableto manage the situation by being present around thecomplainant's house to know as to what was happeningthere while keeping children locked in the house tillthey were killed by strangulation around 22nd April 1988after the ransom bid failed due to his knowledge aboutthe police having been alerted by the complainant andaccompanying him in plain clothes when he took the ransomamount of Rs. 2 lakhs near the Roopali Theatre at 5.00p.m. on 22nd April 1988.
24. From the evidence on record, we are fullysatisfied that it was the accused No.1 alone who hadkidnapped both the children from the lawful guardianshipof his uncle, the complainant and kept them in the houseNo. 44/339, the keys of which were with him and on theattempt to get the ransom having failed, he killed boththe children by strangulation. The purchased materialwas to be used for disposal of their bodies. He alsoused perfume to put the neighbours off their track whenthey were becoming nosey about the foul smell emittingfrom the house. He alongwith Mukesh disposed of the deadbody of Harsh by dumping it in the pit near village Bhaatwhere he was seen by two eye witnesses in the morning of22nd April 1988. Before he could dispose of the deadbody of Rakesh which was tied up in a bundle and put inthe lavatory which was locked by him, he was arrestedunder suspicion and he showed the place where he hadlocked the dead body. The evidence clearly disclosesthat the accused No.1 was the person who kidnapped thechildren on 19th April 1988 and they remained in hiscustody in the house No. 44/339 in which he committedtheir murder by strangulating them around 22nd April 1988and disposed of the body of Harsh on 24th April 1988 andsecreted the body of Rakesh for disposal and destroyingthe evidence, till it was detected at his instance by thepanch on 29th April 1988. We fully endorse the reasoningand finding of the learned trial Judge holding theaccused No.1 guilty of the offence under section 302 ofthe Indian Penal Code and also of the other offencesunder sections 201, 363, 342, 343, 363, 364 and 120B ofthe Indian Penal Code.
25. In the above view of the matter, we findourselves in complete agreement with the reasoningadopted by the trial Court for holding the accused No.1guilty of the offences with which he was charged. Theaccused No.1 appellant has been sentenced by the trialCourt to life imprisonment for the offence under section 302 of the Indian Penal Code. He is also found guilty ofother offences under sections 201, 342, 343, 363, 364 and 120B of the Indian Penal Code and imposed punishment ofsix months rigorous imprisonment for each of thoseoffences and a fine of Rs.200=00, in default to undergoone months rigorous imprisonment. It is contended onbehalf of the State that the appellant - accused No.1 hasacted in a heinous manner and has done to death to hisclose relatives, who were innocent children of 7 yearsand 4 years of age and who never would have doubted thattheir own relative will harm them. The trial Court has,taking into account that the appellant accused No.1 was ayoung boy of 18 years of age, refrained from imposingdeath penalty on him. At this distant point of time, wedo not find it proper to interfere with the sentence byenhancing it to death penalty.
26. Before parting, we may refer to one disturbingaspect of the matter. When the hearing of these appealscommenced on 11th June 2001, we had inquired about thepresence of the appellant - accused No.1. and we wereinformed that he had been absconding since 1991. Itappears that no intimation was sent to the High CourtRegistry about his having absconded though the Stateappeal for enhancement of sentence to death sentence aswell as the appeal filed by the appellant - accused No.1against his conviction and sentence of life term werepending. The Court had all these years not been moved bythe State Government for taking any steps in respect ofthe appellant - accused No.1 who had absconded. TheState does not seem to have taken any concrete stepsagainst the officers and other staff who have beenindifferent over the convicts' not reporting back to jailafter his parole period ended on 26-5-1991. The jailauthorities have, during the hearing of these appeals,sent an intimation to the learned Public Prosecutor whichdoes not at all indicate as to what action was taken bythe jail authorities soon after the convict failed toreport on 26-5- 1991 after he was released on parole bythe District Magistrate, Junagadh. Though right from thedate of commencement of the hearing of these appeals, werequired the State through its Public Prosecutor and thepolice officers, who were present from time to time inCourt, to produce the appellant - accused No.1, we havebeen told by the learned Public Prosecutor that they havenot been able to trace him out. There is nothing put onrecord to show the efforts made for tracing out theconvict. The indifference of the authorities towardssecuring the presence of the convict and their failure totrace him out despite the State having filed an appealfor enhancement of sentence to capital punishment,reflects poorly on the law enforcing agencies. We doexpect the Government to take stern action against thosewho were responsible to report that the convict had notreturned, but did not report and those who were expectedto take steps for taking the convict in custody after hefailed to report, but have been indifferent and negligentin the performance of their duties. The statistics haveshown that very few trials result in conviction and itwill be sheer mockery of the criminal justice system, ifeven for those few offenders who are brought to book,their escape is made easier by simply not taking anyaction when they do not report back at the end of paroleor temporary bail. We expect the State Government tobestow its special attention to the aspect of theconvicts of serious offences absconding and the failureof the administration to track them out and to chalk outa strategy to ensure that an appropriate vigil is keptwhen the convicts are enjoying parole and if they do notreport on the day that they are required to report, swiftaction is taken to take such convicts in custody and forthis purpose, to form a Special Task Force to trace outthe absconding accused or convicted persons.
We, therefore, direct the State Government toissue necessary instructions to all the jail authoritiesto send urgent written intimation to the concerned Courtwhere any proceedings are pending in respect of anyaccused / convict who does not report himselfof the period of his temporary release and alsosimultaneously inform in writing about it to the StateGovernment in its Home department and to the DirectorGeneral of Prisons and the Director General of Police whowill on their part maintain the record of such cases andtake urgent steps to trace out the absconding accused /convict and in cases of lapses of concerned official andstaff, take suitable departmental action in the matter.
27. For the reasons that we have indicated in ourjudgement, we dismiss both the appeals.