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BOMBAY HIGH COURT
B.R. Govai and Mrs. Swapna Joshi, JJ.
State of Maharashtra, through Police
Station Officer,Lakadganj Police Station,
Nagpur. —Applicant
versus
Rajesh and Anr.Respondents
Criminal Confirmation Case No. 1 of 2016 with Criminal Appeal NO. 140 of 2016 with Criminal Appeal No. 103 of 2016
Decided on 5.5.2016
Counsel for the Parties:
For the Applicant/State: Mrs. Bharti H. Dangre, Public Prosecutor assisted by Smt. Jyoti Vajani, Special Counsel, for applicant State.
For Respondent No. 1:Mr. Mir Nagman Ali, Advocate.
For the Respondent no. 2:Mr. C. R. Thakur, Advocate.
For the complainant:Mr. R.M. Daga, Advocate.
IMPORTANT POINT
Death sentence should be imposed when option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to nature and circumstances of crime and all relevant circumstances.
Headnote:(A) Criminal Law—Appreciation of evidence—Circumstantial evidence—Before convicting an accused in a case based on circumstantial evidence, it will have to be established that circumstances from which conclusion of guilt is to be drawn are fully established—It is further necessary that facts so established should be consistent, only with hypothesis of guilt of accused—It should be established that facts established should not be explainable on any other hypothesis except that accused is guilty—Circumstances should be of conclusive nature and tendency—It is necessary that facts established should exclude every possible hypothesis, except one to be proved, i.e. guilt of accused. (Para 21)
(B) Indian Penal Code, 1860—Sections 364A/34 and 201/34—Criminal Procedure Code, 1973—Section 366(1)—Kidnapping and murder of minor boy—Death sentence— Circumstantial evidence—Deceased was last seen in company of accused—When identification of appellant was proved to satisfaction of Court, there was nothing more to be proved about manner in which it was held or to find any flaw in holding of TIP—Presence of witnesses at the spots where they have seen accused in company of deceased is natural—On the basis of CCTV footage it has been found that images of accused and deceased and motorcycle at petrol pump tally with reference photographs of accused, deceased and motorcycle—Dead body was recovered pursuant to disclosure statement made by accused—Time gap between deceased seen together in company of accused and deceased being found dead is so short that conclusion can be drawn that it is present appellants who are author of death of deceased—Prosecution has also proved that accused had planned to kidnap a son of wealthy person for ransom—Death sentence should be imposed when option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to nature and circumstances of crime and all relevant circumstances—Even giving full weightage to mitigating circumstances, balance-sheet of aggravating circumstances and mitigating circumstances fully tilts in favour of aggravating circumstances—Instant case is rarest of rare case for imposition of death sentence—Death penalties confirmed. (Paras 29, 30, 31, 32, 38, 42, 43, 46, 48, 50, 51, 68, 81, 88, 97, 100, 102, 110, 119 and 120)
Result: Application Partly allowed.
JUDGMENT
B.R. Vagai, J.—Since the learned Sessions Judge, Nagpur by judgment and order dated 4.2.2016 in Sessions Trial No. 488/14 has awarded death penalty to the accused Nos. 1 & 2, the reference has been made to this Court for confirmation in Criminal Confirmation Case No.
2. Both the accused/appellants have also preferred appeals being aggrieved by the judgment and order of conviction and sentence dated 4.2.2016. Though both the appellants are condemned persons, for the sake of convenience, hereinafter we will be referring to them as accused.
3. The prosecution case in nutshell as could be gathered from the material placed on record is thus :PW.1 Dr. Mukesh Chandak, the first informant, is a resident of GuruVandana Housing Society, Lakadganj Road, Nagpur. PW.1 Dr. Mukesh Chandak as well as his wife Premal are both Dentists by profession and running a clinic known as “Chandak Dental Clinic” which is located at Darodkar Square, Central Avenue Road, Nagpur. The couple was blessed with two sons, namely, Dhruva 11 years and younger son deceased Yug, who was about 8 years old. They were studying in 6th and 2nd standard respectively in the Centre Point School, Nagpur. The school hours of the elder son Dhruva were beginning from 7.30 a.m. and he used to return home from the school at 2.30 p.m., whereas the timings of the younger son Yug were from 9 a.m. and he used to return to home at around 4.15 p.m. Both the children used to travel in a private school bus for their journey to the school and return.
4. It is the prosecution case that the accused No.1 Rajesh was employed since January, 2014 in the “Chandak Dental Clinic”. He was assigned duty at the reception counter and was working as a Computer OperatorcumReceptionist. His duty included updating the details of the patients in the computer and also taking their entries in the register maintained in the clinic. It was also his duty to send the waiting patients in sequence in chamber of the doctors. He was also supposed to collect the fees of dental treatment from the patients as per the directions of the doctor. He was also assigned the duty to give suitable appointments to the patients for dental check up. In order to maintain discipline in the dental clinic, a red colour T shirt of Statusquo company was provided to the employees as a dress code. The employees were also instructed to use blue colour jean pants. Since the accused No.1 Rajesh was employed in the clinic of Dr. Chandak, he was also given red colour T shirt of Statusquo company by PW.1 Dr. Chandak. It was the practice of PW.1 Dr. Chandak to take back the red T shirts whenever an employee left the job. It is the prosecution case that the accused Rajesh attended the work from January, 2014 till first week of April, 2014. However, thereafter he was irregular. He remained absent in the month of April 2014 under the pretext of examination. The salary paid to accused No.1 Rajesh was about Rs.3000/per month.
5. It is also the prosecution case that the employees in the dental clinic were acquainted with the children of Dr. Chandak as they used to visit the clinic. Whenever victim Yug used to come to clinic, he used to mix up with the staff members. He used to play games on the computer of the clinic kept at the respective counter. It is the prosecution case that in the month of July, 2014 when deceased Yug had visited the clinic of his father in the evening hours, after meeting his parents he started playing games on the computer which was on the table of the accused no.1 at reception counter, wherein accused was working. He was handling the hydraulic chair of the accused roughly. As such, the accused Rajesh became furious and gave one slap to the victim Yug. On the deceased Yug informing about the same to his parents, PW.1 Dr. Chandak gave understanding
