2020 Supreme(SC) 335

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, HEMANT GUPTA, JJ.
Arvind Singh – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal Nos. 640-641 of 2016, 1515-1516 of 2017
Decided On : 24-04-2020

IMPORTANT POINTS
(1) Rule of putting one's version in cross-examination is one of essential justice and not merely technical one.
(2) In terms of provisions of Section 106 of Evidence Act, it is for accused to explain what happened to victim before he was done to death.

Headnote:

(A) Indian Penal Code, 1860 – Sections 364A/34 and Sections 302/34 – Kidnapping and murder of minor boy for ransom – Death sentence – It is not necessary that A-1 should participate till end of conspiracy as some may quit from conspiracy but all of them would be treated as conspirators – Common intention requires a pre-arranged plan and prior concert – There must be prior meeting of minds – Common intention must exist prior to commission of act in a point of time – Medical evidence corroborates time of death – Opinion of expert can only suggest time range, and not precise time of death – In terms of provisions of Section 106 of Evidence Act, it is for accused to explain what happened to victim before he was done to death – Since victim was in custody of A-1 and A-2 and there is no evidence of any intervening factor to doubt that there could be possibility of third person, it is for them to discharge burden of such fact which is within their knowledge – Facts prove that both accused had a common intention to kidnap child – Kidnapping of an 8-year-old child was unequivocally for ransom – Kidnapping of a victim of such a tender age for ransom has inherent threat to cause death as that alone will force relatives of such victim to pay ransom – Since act of kidnapping of a child for ransom has inherent threat to cause death, accused have been rightly been convicted for an offence under Section 364A read with Section 34 IPC – Threat will remain a mere threat, if victim returns unhurt – In present case, victim has been done to death – Threat had become a reality – Accused have taken life of a young school going boy of only 8 years of age to become rich by ransom and to take vengeance against his father – Present case falls short of “rarest of rare” cases where a death sentence alone deserves to be awarded to appellants – Judgment and Order passed by Trial Court and confirmed by High Court convicting accused for offences punishable under Sections 302 and 364A read with Section 34 IPC confirmed – However, death sentence imposed by Trial Court, confirmed by High Court, converted into life imprisonment – Life means till end of life and there shall not be any remission till accused completes 25 years of imprisonment. (Paras 73, 74, 76, 92, 96 and 100)

(B) Indian Evidence Act, 1872 – Section 114 – Cross-examination of witness – Section 146 of Evidence Act confers a valuable right of cross-examining witness tendered in evidence by opposite party – A witness is required to be cross-examined in a criminal trial to test his veracity; to discover who he is and what his position in life is; or to shake his credit, by injuring his character, although answer to such questions may directly or indirectly incriminate him or may directly or indirectly expose him to a penalty or forfeiture – Rule of putting one's version in cross-examination is one of essential justice and not merely technical one – Accused is presumed to be innocent until his guilt is established by prosecution. (Paras 54, 59, 60 and 61)

(C) Criminal Law – Appreciation of evidence – Prosecution is required to bring home guilt beyond reasonable doubt – It is open to an accused to raise such reasonable doubt by cross-examination of prosecution witnesses to discredit such witness in respect of truthfulness and veracity – However, where statement of prosecution witnesses cannot be doubted on the basis of touchstone of truthfulness, contradictions and inconsistencies, and accused wants to assert any particular fact which cannot be made out from prosecution evidence, it is incumbent upon accused to cross- examine relevant witnesses to that extent – Witness, in order to impeach truthfulness of his statement, must be cross-examined to seek any explanation in respect of a version which accused wants to rely upon rather to raise an argument at trial or appellate stage to infer a fact when opportunity given was not availed of as part of fair play while appreciating statement of witnesses – A party intending to bring evidence to impeach or contradict testimony of a witness must give an opportunity to explain or answer when witness is in witness box. (Para 63)

(D) Indian Evidence Act, 1872 – Section 106 – Onus to prove – Section 106 must be considered in a commonsense way – Balance of convenience and disproportion of labour that would be involved in finding out and proving certain facts balanced against triviality of issue at stake and ease with which accused could prove them, are all matters that must be taken into consideration – Section cannot be used to undermine well-established rule of law that, save in a very exceptional class of case, burden is on prosecution and never shifts. (Para 77)

Facts of the Case:

Present appeals are directed against the judgment and order passed by the High Court of Judicature at Bombay (Nagpur Bench) on 5th May, 2016 whereby the appeals filed by the appellants Rajesh Daware1 and Arvind Singh against their conviction for offences punishable under Section 364A read with Section 34 of Indian Penal Code, 1860 and Section 302 read with Section 34 IPC was dismissed by confirming the death sentence imposed upon them by the learned Sessions Judge, Nagpur vide its order dated 4th February, 2016.

Findings of the Court:

Motive of the accused to take life was to become rich by not doing hard work but by demanding ransom after kidnapping a young, innocent boy of 8 years. Thus, having considered all the circumstances and facts on record, we are of the considered view that the present case falls short of the “rarest of rare” cases where a death sentence alone deserves to be awarded to the appellants.

Result : Appeals dismissed.