2019 Supreme(Bom) 230
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
M.S. SONAK, PRITHVIRAJ K CHAVAN, JJ.
ROHAN DHUNGAT SON OF PRADEEP R PAI DHUNGAT - Appellant
Versus
STATE (THROUGH POLICE INSPECTOR, PANAJI POLICE STATION) - Respondent
Criminal Appeals No. 38 of 2014, 48 of 2014, 51 of 2014, 52 of 2014, 64 of 2014; Criminal Revision Application No. 44 of 2014
Decided on : 04-03-2019
Advocate Appeared:
S.G. Desai, Adv., Pavithran A V, Adv., Shirish Gupte, Adv., C.A. Ferreira, Adv., I. Agha, Adv., Ketan Morajkar, Adv., Jos Peter Dsouza, Adv., S. Pinto, Adv., D. Tulkar, Adv., S.R. Rivankar, Adv., Karan Singh Rajput, Adv., Joao Dias, Adv., Shilpa Khorjuvenkar, Adv., Sujai Joshi, Adv.
Headnote:
Goa Childrens Act 2003 - Section 8 - Indian Penal Code,1860 - Sections 201, 302, 364-A read with Section 120-B – Criminal Procedure Code,1973 - Section 428 - Criminal Appeal - Aggrieved by portion of impugned Judgment and Order which directs that accused persons are entitled for set off - Criminal Revision Application is instituted by father of Victim on the point of sentence - Applicant has urged that the sentence of Life Imprisonment may be enhanced to Death Sentence or in alternate accused persons be directed to undergo Life Imprisonment for remainder of their natural lives, without any remission - Since challenge is to the Judgment and Order in Special Case made by the Childrens Court it is only appropriate that all these Appeals and the Criminal Revision Application are disposed of by a common Judgment and Order – Held, European Court of Human Rights has declared that providing a whole life sentence without prospect of release or review of sentence would amount to inhumane and degrading punishment hit by Article 3 of ECHR - Though in terms of ruling of Constitution Bench (supra) that may not be presently accepted position in court country - Nevertheless Court has to endeavor to strike a balance between expectations of Victims parents that perpetrators of such ghastly crimes are awarded severest of sentences and expectations of convicts that they too are given a chance to hope a chance to reform- A convict who is deprived of chance to hope at stage of judicial sentencing itself may have no incentive whatsoever to reform to turn a new leaf - As a Court we have to necessarily balance demands of retribution and deterrence in one scale with demands of reformation in other - Just as sentence cannot be manifestly inadequate same must also not be dispassionately severe - Principle of proportionality in sentencing is by now well entrenched in our criminal jurisprudence - Criminal appeals dispose of
M.S. SONAK, J.
1. In Criminal Appeal Nos. 38/2014, 48/2014, 51/2014 and 52/2014, the challenge is to the Judgment and Order dated 23 June 2014, made by the Children's Court, State of Goa, in Special Case No.28/2006, convicting each of the Appellants for the offences under Sections 201, 302, 364-A read with Section 120-B of the Indian Penal Code (IPC) and Section 8 of the Goa Children's Act 2003 (Children's Act) and sentencing them, inter alia, to Life Imprisonment. These Appeals have been instituted by Rohan Dhungat (A.1), Nafiyaz Sheikh (A.2), Shankar Tiwari (A.3) and Jovita Ryan dos Remedios Pinto(Ryan A.4) respectively.
2. Criminal Appeal No.64/2014 is instituted by the State, aggrieved by the portion of the impugned Judgment and Order which directs that the accused persons are entitled for set off under Section 428 of Cr.P.C. for the period already undergone during the trial.
3. Criminal Revision Application No.44/2014, is instituted by Deepak Surlakar, father of Victim Surlakar (Victim) on the point of sentence. The applicant has urged that the sentence of Life Imprisonment may be enhanced to Death Sentence, or in the alternate, the accused persons be directed to undergo Life Imprisonment for the remainder of their natural lives, without any remission.
4. Since, the challenge is to the Judgment and Order dated 23.6.2014 in Special Case No.28/2006, made by the Children's Court, it is only appropriate that all these Appeals and the Criminal Revision Application, are disposed of by a common Judgment and Order. Accordingly, we proceed to dispose of all these matters by the common judgment and order.
5. The case of the Prosecution is that all the accused persons and one Al Saleha Beig, (original Accused No.5 who later turned approver and examined as (P.W.1)), were friends. Rohan (A.1), Nafiyaz (A.2) and Ryan (A.4), all students of Law College, in partnership undertook the business of publication of magazine "Vox Populi" from the office premises at Miramar, Panaji, Goa. As the business ran into losses, all the accused persons, initially hatched a conspiracy to kidnap one Xavier from Mapusa for ransom. However, after they realized that there was some dispute between the parents of Xavier, on account of which the Court had ordered the Bank accounts of Xavier's father to be frozen, they abandoned this plan. Thereafter, in the first week of August, 2006 Rohan (A.1) proposed a plan to kidnap one Victim from Vasco. Rohan (A.1) stated that Victim, who had given an advertisement in their magazine, had rich parents, and therefore, could be kidnapped for ransom. Accordingly, conspiracy was hatched to kidnap Victim, and in furtherance of the same, the accused persons procured ropes, syringes, medical white tapes, two baseball bats, three pairs of hand gloves, and some car number plates. This was on 10.08.2006. Thereafter all the accused persons including Al Saleha Beig, made attempt to kidnap Victim on 11.08.2006, by posing to call from Sea Square Entertainment, an Event Management Firm from Bombay, and stated to Victim that they wanted him as a Disc Jockey (DJ) to organize a show in Goa. The plan failed as Victim expressed inability to come on 11.08.2006. However, Victim agreed to come on 14.08.2006 and accordingly, Rohan (A.1) who was known to Victim, and Nafiyaz (A.2) went to Victim's house on 14.08.2006 at about 8.30 a.m. to pick up Victim. Rohan (A.1), Nafiyaz (A.2) and Shankar (A.3), ultimately brought Victim to Ryan's (A.4) house at Ucassaim, where, Ryan (A.4) and Al Saleha Beig were already present. Here, the accused persons assaulted and tied down Victim with ropes and forced him to record a message for his father to pay ransom, without reporting the matter to the police. At about 1.15 p.m., on the same day i.e. on 14.08.2006, a demand was made to Victim's father for ransom of Rs. 50 lakhs. Victim's father thereupon, rushed to the Vasco Police. The Vasco Police, summoned Rohan (A.1) and Nafiyaz (A-2), since, Victim had left