IMPORTANT POINT
Breach of the mandatory requirement of Section 235(2) of Code of Criminal Procedure,1973 can not, be ignored as inconsequential and it can vitiate the sentence of death imposed by the Sessions Court.

JUDGMENT

K.S. Radhakrishnan, J.-Death sentence has been awarded by the High Court of Bombay to Ajay Pandit @ Jagdish Dayabhai Patel for double murder, in separate incidents, one for the murder of Nilesh Bhailal Patel and another for the murder of Jayashree. The Bombay High Court heard both the appeals – Criminal Appeal No. 46 of 2000 and Criminal Appeal No. 789 of 2001 together and rendered a common judgment on 22nd December, 2005 confirming the order of conviction and enhancing the sentence of life imprisonment to death and ordered to be hanged till death against which this appeal has been preferred.

2. The accused Ajay Pandit @ Jagdish Dayabhai Patel was a dentist by profession, known as Doctor Jagdish Patel at his Dhabasi Mohalla, District Kheda, Gujarat. He possesses a degree in Dental Hygienist and Dental Mechanic (D.H.D.M.) from the Gujarat University. Professional income was not sufficient for him to lead a lavish and luxurious life, he had other evil and demonic ideas in mind, to make quick and easy money. Self publicity was given of his make-belief contacts with the officials of the American Embassy by which he lured the vulnerable into his net, for sending them to America for better prospects in life. Several persons fell in his net like Nilesh and Jayashree and few others narrowly escaped from the clutches of death.

3. We may first deal with the facts arising out of the judgment of the Bombay High Court in Criminal Appeal No. 46 of 2000 in which the High Court, convicted the accused under Section 419 of the Indian Penal Code (for short ‘the IPC) and sentenced to suffer R.I. for one year, under Section 420 of the IPC, R.I. for two years and fine, under Section 302 of the IPC life imprisonment with fine which was converted to death.

4. Doctor Jagdish Patel – the accused had developed contacts with a family of one Dilip Manilal Patel and he used to visit their house at Bhayandar and Kandivali since 1993. During those visits, the accused used to boost that he had contacts with the officials of the American Embassy which kindled hopes in the minds of Dilip Patel and his family members and they decided to send Nilesh Bhailal Patel, cousin brother of Smt. Sarala Patel, wife of Dilip Patel, to America using the accused’s alleged influence in the American Embassy. A deal was struck and the accused demanded an amount of Rs.2,50,000/- for realization of their dream. Negotiations took place and the amount was reduced to Rs.1,10,000/- as an initial payment, and the balance was to be paid after getting Nilesh employment in America. Dilip Patel in October 1993 paid Rs.60,000/- to the accused and the balance amount of Rs.50,000/- was paid by Mahendra Bhailal Patel, brother of the deceased - Nilesh to the accused. Noticing that even after payment of money, the accused was not fulfilling his promises, various meetings and phone calls took place between the accused and the family of Nilesh. The accused reiterated his promise and later asked Dilip Patel to send Nilesh to Bombay Central Railway Station on 8.2.1994 with return ticket of the accused. The accused had also requested Dilip Patel a further amount of Rs.3500/- towards medical expenses and also for arranging visa. Dilip Patel had assured the accused that he himself would be coming to Bombay with the required amount. As promised, Dilip Patel reached Bombay in the afternoon of 8.2.1994 and found the accused waiting at Bhulabhai Desai Road near the American Consulate. The accused told Dilip Patel that the necessary papers had been submitted to the Consulate and asked to leave the place. Dilip Patel accordingly left the place and that was the last time, Dilip Patel saw Nilesh in the company of the accused that was around 3 o’ clock. In the evening of 8.2.1994 at about 5 o’ clock, Dilip Patel received a phone call from the accused stating that the formalities had been completed and Nilesh would be coming home late in the night. Dilip Patel reached home but not Nilesh. Dilip Pate