CDJ Law Journals

Oral Judgment:

Urmila Joshi Phalke, J.

1. These Appeals are preferred by the State for enhancement of sentence, whereas by the accused challenging the order of sentence and conviction passed by the Additional Sessions Judge, Chandrapur in Sessions Case No. 16/2017 dated 30.11.2018, by which the accused is convicted as under:

                   1(i). The accused is convicted of the offence punishable under Section 364-A read with Section 34 of the Indian Penal Code (for short “IPC”) and sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/-, in default to suffer further rigorous imprisonment for 3 years.

                   1(ii). The accused is further convicted of the offence punishable under Section 302 read with Section 34 of IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/-, in default to suffer further rigorous imprisonment for 3 years.

                   1(iii). The accused is further convicted of the offence punishable under Section 120-B of IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/-, in default to suffer further rigorous imprisonment for 3 years.

                   1(iv). The accused is further convicted of the offence punishable under Section 201 read with Section 34 of IPC and sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.5,000/-, in default to suffer further rigorous imprisonment for 1 year.

2. Criminal Appeal No. 176/2019 is preferred by the State seeking capital punishment, whereas Criminal Appeal No. 178/2019 preferred by the accused challenging the judgment and order of conviction.

3. Brief facts of the prosecution case emerges from the Police papers and recorded evidence are as under:

                   3(i). The Informant Babita Bhaskar Sahare is resident of Samta Nagar Ward No. 1, Chandrapur having two sons Bhavik and Bhardwaj. She as well as her husband are doing the labour work. On 15.09.2016, she had gone for work at 07.30 a.m., it was the day of Ganpati Visarjan. She returned from the work at 05.00 p.m., at the relevant time her husband and her elder son Bhavik were present in the house. Her younger son Bhardwaj alias Sonu was not in the house. Therefore, she enquired with her husband. Her husband informed that he returned from the work at 02.00 p.m., at that time he was playing with the other children. After half an hour of his return to home, Bhardwaj came home, took his mobile for playing the game and did not return home. Mother of Bhardwaj who is the Informant tried to call on his mobile but the mobile was switched off, therefore she made an enquiry in the neighborhood but he was not traced. They thought that he might have gone to see the procession of Lord Ganesh but her son was not returned home late night. Therefore, she alongwith her husband, another son and neighbours took the search but her son was not found.

                   3(ii). The accused who is her neighbour was also enquired and he disclosed that he gave Rs.10/- to Bhradwaj in the afternoon and since then he did not see him. As the son of the Informant was not found, she approached the Police Station and informed the Police.

                   3(iii). On the next day in the morning, the mobile phone which was taken by her son was found to her in the courtyard. The phone was of Nokia company having two sim cards one of Idea company and other was of Vodafone having Idea sim card No. 9623515809 and Vodafone sim card No. 8698134726. The said phone was found wrapped in a polythene bag. She took the said mobile phone and switched it on but immediately it was switched off. The accused was present there, asked for the handset and informed her that there is no balance, and therefore, it is to be recharged. Therefore, she gave him Rs. 50/-, he recharged by using Rs.20/- and returned Rs.30/- to her.

                   3(iv). After returning from the Police Station at about 12.00 noon, sister of the accused Laxmi came to her and told her that there is a call for her. She picked up the call and the caller informed her that her son Sonu is kidnapped and they have to pay Rs. 4 Lakhs, if the Police are informed they will kill her son and threatening was given in Marathi. She handed over the said call to another neighbour Madan Pimpalkar by informing the caller representing him as a father of the child. The caller repeated the demand in the aforesaid manner. Therefore, Madan Pimpalkar asked him where the amount is to be brought but the caller disconnected the call. As the call was received on the mobile phone of the accused, she enquired with him how the call was received on his mobile, he told that when she handed over mobile to him, he inserted the card of Idea Company in his mobile and the phone call was received to her on her mobile No. 9623515809 from another number 8698134726. In the evening she came to know that the accused took her son on his bicycle and killed him and concealed his dead body in the Forest. On the basis of the said report, Police have registered the crime against the accused and child in conflict with law.

                   3(v). After registration of the crime and during investigation, the Investigating Officer has visited the house of Informant and drawn the panchnama where the mobile was thrown. On 16.09.2016, the accused was arrested by drawing arrest panchnama. After his arrest he made memorandum statement to the effect that he will show the place where he concealed the dead body of the deceased. In pursuance of the said statement, he has shown the place where the dead body was concealed and on his instance the dead body was recovered. At the said place, Police have drawn the panchnama as to the spot of incident. At the said spot, Police have seized blood stained soil and simple soil. On the next day, the accused has made a memorandum statement and at his instance the weapon of the offence knife was recovered in presence of panchas. Accordingly, the panchnama was drawn. During investigation, the Investigating Officer seized the clothes of the deceased, clothes of the accused and the samples are also collected. Investigating Officer has also issued communication to the Nodal Officer Idea Cellular to obtain the details of mobile No.9623515809 and CDR and SDR Reports. The communication was also issued to the Nodal Officer Vodafone to collect the details of mobile No.7798845496, 9158279356 and 8698134726. The incriminating articles are forwarded to C.A. On completion of the investigation, the charge-sheet was submitted against the accused.

                   3(vi). The learned Additional Sessions Judge, Chandrapur framed Charge vide Exh.11.

                   3(vii). In support of the prosecution case, the prosecution has examined in all 15 witnesses, as follows:

(i)	PW-1	Babita Bhaskar Sahare	Exh.18	Informant and mother of the deceased.
(ii)	PW-2	Bhaskar Sriram Sahare	Exh.24	Father of the deceased.
(iii)	PW-3	Madan Yashwant Pimpalkar	Exh.29	Neighbour as well as Panch on spot and seizure.
(iv)	PW-4	Bhushan Jagannathrao Gajpure	Exh.41	Panch on memorandum statement and discovery panchnamas.
(v)	PW-5	Dashrath Shankar Itkar	Exh.52	Witness on last seen.
(vi)	PW-6	Deepak Gajanan Itkar	Exh.54	Child witness on last seen.
(vii)	PW-7	Ganesh Shankarrao Nimsatkar	Exh.56	Panch on seizure of clothes of deceased, samples of deceased and samples of accused.
(viii)	PW-8	Dr. Shashikant Vithobaji Dhobale	Exh.62	Medical Officer.
(ix)	PW-9	Vilas Hari Awade	Exh.72	Photographer.
(x)	PW-10	Khemraj Jaganji Dahelkar	Exh.125	Brother of Informant
(xi)	PW-11	Sonal Hiwaraj Khose	Exh.127	Panch on Hash value panchnama.
(xii)	PW-12	Roshan Sambhaji Chandekar	Exh.133	Police Constable Cyber Cell.
(xiii)	PW-13	Sachin Mahadeo Shinde	Exh.138	Nodal Officer of Idea Cellular Company.
(xiv)	PW-14	Aditya Pradip Nifalkar	Exh.149	Nodal Officer of Vodafone Company.
(xv)	PW-15	Revchand Khushal Singanjude	Exh.154	Investigating Officer.

                   3(viii). Besides the oral evidence, the prosecution placed reliance on oral Report-Exh.19, FIR-Exh.20, Mobile Seizure memo of Informant-Exh.21, Notice to PW-3 and another Pancha-Exh.30, Spot panchnama-Exh.31, Notice to PW-3 and another panch-Exh.33, Arrest panchnama of accused-Exh.34, Property search and seizure panchnama regarding the mobile phones of the accused-Exh.35, Notice to PW-3 and another Panch-Exh.36, Property search and Seizure panchnama regarding clothes of the accused and his bicycle-Exh.37, Notice to PW-4 and another Panch-Exh.42, Memorandum statement of accused-Exh.43, Discovery panchnama (recovery of dead body) -Exh.44, Spot panchnama as to spot shown by the accused- Exh.45, Inquest panchnama-Exh.46, Notice to PW-4 and another Panch-Exh.47, Memorandum statements of accused-Exh.48, Discovery panchnama (recovery of weapon)-Exh.49, Notice to PW-7 and another Panch-Exh.57, Property Seizure memo as to the clothes and blood, nails and hair samples of the deceased- Exh.58, Notice to PW-7 and another Panch-Exh.59, Property Seizure memo as to the blood samples, nail samples of the accused-Exh.60, Requisitions to Medical Officer-Exhs.63, 64, 67 & 69, Provisional cause of death Certificate-Exh.65, Postmortem Report-Exh.66, Query Report (regarding weapon) dated 19.09.2016-Exh.68 and Query Report (as to time of death) dated 08.12.2016 Exh.70, Notice to Photographer-Exhs.73, 74 & 106, Receipts of Photographer-Exh.75 & 107, Certificates under Section 65-B of Indian Evidence Act-Exhs.77, 134, 142, 144, 150, 151, 152, Election Identity Card of PW-10-Exh.126, Notice to PW-11 and another Panch-Exh.128, Hash Value Seizure panchnama-Exh.129, Screen Shot of Hash Value-Exh.135, Requisition to Nodal Officer Idea Cellular Company-Exhs.139 & 146, Customer details of Mobile No.9623515809-Exh.140, Customer Application Form-Exh.141, CDR Report of Idea Company-Exh.143, CDR Report of Vodafone Company-Exh. 150-A, 151-A, 152-A, Customer details- Exhs.150-B, 151-B, 152-B, Requisitions to Cyber Cell-Exh.155 & 157, Requisition to Superintendent of Police, Cyber Cell, Chandrapur-Exh.156, Letter from Idea Cellular Company-Exh.158, Requisition to Medical Officer-Exh.159, Arrest panchnama-Exh.160, Requisition to Forest Officer-Exh.161, Duty Pass-Exh.163, Station Diary Entry-Exh.167, Seizure memo-Exh.175, Property Seizure memo-Exh.177, Requisition to C.A.-Exh.178, Requisition to Cyber Cell-Exh.186, Requisition to Nodal Officer Vodafone- Exh.188 and 189, Requisition to Deputy Manager W.C.L. Durgapur-Exh.195, Letter from Deputy Manager W.C.L. Durgapur-Exh.196 and Extract of Case Diary-Ex.197.

                   3(ix). After recording the evidence, the incriminating evidence is put to the accused for seeking his explanation by recording his statement under Section 313 of the Code of Criminal Procedure vide Exhs. 204 and 205. The additional statement is also recorded during the hearing of the Appeal as incriminating evidence regarding the C.A. Report was not put to the accused. The defence of the accused is of a total denial and false implication.

                   3(x). After appreciating the evidence, the Trial Court held that the death of the deceased is homicidal one and accused has caused the death of the deceased and held him guilty and sentenced him as aforestated.

4. Being aggrieved and dissatisfied with the same, the present Appeal is preferred by the accused on the ground that, the entire case is based on circumstantial evidence. The law regarding circumstantial evidence is well settled. The prosecution has not established the entire circumstances which unerringly points out towards the guilt of the accused.

5. Learned Counsel for the accused vehemently submitted that, law regarding circumstantial evidence is well settled. The prosecution placed reliance on the circumstances of last seen with the deceased, recovery of the dead body at the instance of the accused, recovery of weapon at the instance of the accused and the blood stained weapon wherein the blood group of the deceased was found. He submitted that, the evidence of the witnesses discloses that the accused was also searching the deceased after the incident. As the case is based on circumstantial evidence, burden is on the prosecution to prove the motive.

6. He invited our attention towards the evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare and submitted that there are material omissions in their evidence and admitted that the statements were read over to them and the statements were memorized by them. There are material omissions in the evidence of PW-3/Madan Pimpalkar which goes to the root of the matter. PW-4/Bhushan Gajpure who is the regular panch of the Police, and therefore, his evidence is not trustworthy as to the memorandum statement was made in his presence and recovery of the dead body at the instance of the accused in his presence. There is no evidence that, the accused made a voluntary statement and in pursuance of the said voluntary statement, the weapon of the offence was recovered. Therefore, the evidence as to the recovery of weapon and discovery of place where the dead body was concealed itself is not established.

7. He also submitted that, there is delay in recording the statements of PW-5/Dashrath Itkar and PW-6/Deepak Itkar, who allegedly seen the accused lastly with the deceased but they have not disclosed at earlier point of time. There is no explanation as to the delay in recording the statements. Moreover, PW-6/Deepak Itkar is the child witness. His evidence is to be scrutinized carefully. There is every likelihood of tutoring, and therefore, his evidence is to be discarded. Evidence of PW-7/Ganesh Nimsatkar, who acted as a panch on seizure on the clothes of the deceased and accused is not significant as no blood stains are found on the clothes of the accused.

8. The homicidal death of the deceased is established by PW-8/Dr. Shashikant Dhobale. The defence has not challenged the nature of the death, therefore the evidence of PW-8/Dr. Shashikant Dhobale to establish the involvement of the present accused is not sufficient. PW-9/Vilas Awade, who is the photographer and as per his evidence Police usually calls him, therefore preparation of photographs cannot be ruled out. Though PW-10/Khemraj Dahelkar stated about the ownership of mobile sim card No.9623515809, however that evidence is not much important as nothing is on record to show that the accused has made a phone call on that number. Evidence of PW- 11/Sonal Khose and PW-12/Roshan Chandekar is also formal in nature. Though PW-13/Sachin Shinde and PW-14/Aditya Nifalkar stated that, call was received on mobile phone No.9623515809 from mobile No. 8698134726 but it is insufficient to show that the call was made by the accused. PW-15/Revchand Singanjude is the Investigating Officer. He submitted that, the entire evidence of Investigating Officer is silent and how the sim card of Vodafone company came in the possession of child in conflict in law. The nexus between the accused and child in conflict in law itself is not established. Thus, the entire evidence of prosecution is doubtful as to the recovery of weapon, discovery of the dead body and call received on the mobile phone of the Informant. The involvement of the accused itself is not established by the prosecution.

9. As to the Appeal by State, he submitted that, the prosecution has claimed the Capital punishment by preferring an Appeal, but prosecution failed to show it is a rarest of rare case. Nothing is on record to show that, some uncommon act was committed by the accused which was brutal in nature and imprisonment imposed is an inadequate punishment for the same.

10. Considering the guidelines issued by the Hon’ble Apex Court nothing uncommon about the crime which renders sentence of imprisonment for life is inadequate. Nothing is on record to show that, there is no alternate but to impose death sentence, after according maximum weightage to the mitigating circumstances. Therefore, the Appeal filed by the State, is devoid of merits and liable to be dismissed.

11. Per contra, learned APP submitted that, the entire case is based on circumstantial evidence. The prosecution has established the circumstances that deceased got missing on 15.09.2016. PW-5/Dashrath Itkar and PW-6/ Deepak Itkar have seen the accused alongwith the deceased lastly and thereafter the deceased was not found. The fact that the accused has given Rs.10/- to the deceased and asked him to bring the cigarette, is not only stated by PW-6/Deepak Itkar but it is stated by PW-2/Bhaskar Sahare to whom the deceased has disclosed the fact. The accused has also disclosed to PW-1/Babita Sahare that he has given Rs.10/- to the deceased.

12. The prosecution has further established that, on 15.09.2016 the mobile phone of the Informant was not found. On the next day, it was found in the courtyard which was switched off. By obtaining Rs.20/-, the accused has recharged it and inserted the sim card of Idea Cellular in his own mobile handset. On 16.09.2016, the phone call was received on the mobile handset of the accused, wherein the sim card of Idea Cellular which is in the name of PW-10/Khemraj Dahelkar was inserted.

13. The dead body of the deceased was found on the basis of the memorandum statement of the accused. The incriminating weapon is also found concealed which was recovered at the instance of the accused at some distance from the place where the dead body was found. Blood stains found on the weapon of blood group ‘A’, which is of the deceased. The motive for the accused is that, there was a dispute between the parents of the accused and the Informant as the parents of the accused suspecting that their daughter aged about 12 years was killed by the Informant by black magic. Thus, the entire chain of the circumstances is established by the prosecution. Therefore, the accused is rightly convicted by the Trial Court. However, the Trial Court has not considered the policy of imposing punishment.

14. The principle of proportion between the crime and the punishment according to the culpability of each kind of criminal conduct is not considered by the Trial Court. The manner in which the offence was committed by the accused is without any remorse even without considering that the child whose death is caused is only 11 years boy. The nature of the crime and the manner in which it is committed sufficiently shows that it is a rarest of rare case and punishment imposed is an inadequate punishment. Therefore, it is a fit case wherein the Capital punishment requires to be imposed, and therefore, the Appeal of the State deserves to be allowed.

15. The learned APP and learned appointed Counsel for the accused taken us through the entire record. The crucial question which is to be determined is whether the prosecution succeeded in establishing that the death of the deceased is homicidal one. To prove the said fact, the prosecution placed reliance on PW-8/Dr. Shashikant Dhobale whose evidence shows that, at the relevant time he was working in a Government Medical College, Chandrapur. On 17.09.2016, he received two requisition letters Exhs. 63 and 64 alongwith inquest panchnama. By one requisition he was requested to conduct the postmortem examination and by another requisition he was requested for collecting blood sample and clothes, nail and hair samples and viscera of the deceased for chemical analysis.

16. Upon examination of deceased he found following injuries on the person of the deceased:

                   (1) Incised wound of length 14 x 4 cm at trachea deep cut over anterior aspect of neck horizontally extending from 4 cm below left mastoid running anteriorly just below thyroid cartilage cut 2 c.m. below right angle of mandible underlying tissue, mussels were clean cut, trachea was cut horizontally surrounding vessels and nerves were clean cut with red brown heamatoma filled with multiple maggots live moving out of the wounds in larval stage.

                   (2) Lacerated wound of size 2 x 2 cm x 0.5 cm. at upper lip of mid-line reddish.

                   (3) Contusion of size 4 x 4 cm x 2 cm at forehead just right side of midline, red.

                   (4) Contusion of size 2 x 2 cm at bridge of nose.

                   (5) Lacerated wound present over left side pinna of left ear of size 2 x 2 cm x 0.5 cm, red. All wounds are reddish brown in colour and studded with multiple live maggots.

17. All the injuries was found on the dead body was anti mortem injuries. Upon internal examination the injuries were found on head and thorax region. The injury on head was under scalp heamatoma 10 x 8 c.m., on vertex region of scalp and right frontal area. The brain was found having subarchnoid hemorrhage and bilateral paretal lobe of cerebral cortex. The internal injury on thorax was a clean cut incised wound over trachea just below thyroid cartilage. The trachea was filled with maggots. He opined that, the death is due to injury over neck and head injury and issued the postmortem examination report. He has also issued the provisional death certificate. The provisional death certificate and postmortem report are at Exhs. 65 and 66 respectively. He further opined that, the said injuries are possible by weapon like knife and stones.

18. The cross-examination though extensive nothing incriminating is brought on record to shatter the medical evidence. The manner of the cross-examination is general in nature to ascertain when the rigor mortis developed. In cross-examination, it specifically came on record that, the first injury mentioned in column No.17 is possible by weapon sword and knife. It is further came on record that, the injury mentioned in column No.19 of Exh.66 was not found corresponding mentioned in column No.17 except regarding right frontal area. Thus, even accepting the said admissions on record, the evidence of Medical Officer stating that the death of the deceased is homicidal one is not shattered. The defence Counsel has not seriously challenged the nature of the death of the deceased.

19. Besides the evidence of Medical Officer, the prosecution placed reliance on the evidence of PW-4/Bhushan Gajpure, who acted as a panch on the inquest panchnama. As per his evidence he was called by the Police by issuing the requisition letter to his office to act as a panch. In his presence, inquest panchnama was drawn. The hairs of the deceased were stained with blood, neck was having cut and there were maggots on the body. Accordingly, the inquest panchnama was drawn, which is at Exh. 46. His further evidence shows that, he also acted as a panch on the spot panchnama where the alleged incident has taken place. It was a Zudpi Jungle. The dead body was lying and hidden in the grass. There was Nala where the blood stains on some rocks were found. There were blood mixed soil at places and there were signs of dead body being dragged on the sand. This PW-4/Bhushan Gajpure is cross-examined at length. Attempt was made to show that, he is habitual panch. As far as his evidence regarding spot is concerned, where the dead body was found and having blood stains, was not shattered. His evidence witnessing the injuries on the person of the deceased is also not shattered during the cross-examination. Thus, the prosecution has adduced the evidence which is cogent and reliable to show that the death of the deceased is homicidal one.

20. Now, it is well settled that, the evidence of PW-8/ Dr. Shashikant Dhobale is not only an opinion evidence but also his evidence is in the nature of direct evidence as he had an opportunity to see the injuries on the person of the deceased.

21. A medical witness, who performs a postmortem examination is a witness of a fact though he also gives an opinion on certain aspects of the case. The proposition of law has been stated by the Hon’ble Apex Court in the case of Smt. Nagindra Bala Mitra and Another Vs Sunil Chandra Roy and Another, 1960 SCR (3) 1, wherein the Hon’ble Apex Court observed that “the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot, at close range, the marks of tatooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person.” Thus, the testimony of medical witness is very important and it can be safely accepted.

22. In the recent judgment also, the Hon’ble Apex Court in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh Vs. The State of Bihar 2022 reported in Live Law (SC) 402, dealt with the evidentiary value of the medical evidence and observed that, the evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. It has been reiterated by this Court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged.

23. Thus, the prosecution has succeeded in proving that the death of the deceased is homicidal one.

24. Admittedly, the entire case of the prosecution is based on the circumstantial evidence. The law is settled regarding the circumstantial evidence which is as under:

                   “(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.

                   (ii) Though circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused.

                   (iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

                   (iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of a guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.”

25. Accordingly, to Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in case of circumstantial evidence which are as under :

                   (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum of probandum;

                   (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

                   (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

                   (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

                   (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.”

26. The prosecution in the present case rested on following circumstances.

                   (i) The deceased 11 years boy namely Bhardwaj on 15.09.2016 was playing near the house of Shankar Mungelwar at about 02.00 p.m. alongwith PW-6/Deepak Itkar and Akash Mogre.

                   (ii) At about 02.30 to 03.00 p.m., his father came at home from work and deceased has taken the mobile phone of his father and went outside the house for playing game. The deceased disclosed that, he was having 7 rupees given by his mother and 10 rupees given by accused Dewa.

                   (iii) Informant mother of the deceased returned home at 05.00 p.m., and found deceased is missing alongwith the mobile phone.

                   (iv) After due search, deceased was not found.

                   (v) Informant found mobile phone in her courtyard wrapped in polythene bag which was taken by the deceased on the next day morning.

                   (vi) As per the prosecution case, the Informant was using Nokia mobile phone of two sim cards one is of Idea and another is of Vodafone bearing Nos.9623515809 and 8698134726.

                   (vii) When mobile phone was found in a courtyard, sim card of Vodafone was missing from the said handset.

                   (viii) The Informant informed the Police on 16.09.2016 about missing of her son.

                   (ix) On next day i.e. on 16.09.2016 approximately at around 12.00 noon she received a phone call on the mobile phone of the accused asking ransom amount of Rs. 4 Lakhs. It further reveals that, the said call was made by her another No. 8698134726 on the No. 9623515809 which was in the mobile handset of the accused.

                   (x) On enquiry it reveals that, the accused removed Idea sim card from mobile phone of the Informant and inserted in his mobile.

                   (xi) The accused was lastly seen by the witnesses PW- 5/Dashrath Itkar and PW-6/Deepak Itkar in the company of the deceased.

                   (xii) The dead body of the deceased was recovered at the instance of the accused.

                   (xiii) The incriminating weapon knife recovered at the instance of the accused.

                   (xiv) The motive suggested is that the family of the accused suspecting that the Informant has caused the death of the sister of the accused by black magic.

                   (xv) The medical evidence suggesting that, the injuries sustained by the deceased can be caused by the knife which was recovered at the instance of the accused.

                   (xvi) The blood stains are also found on the spot shown by the accused.

                   (xvii) The CA reports showing the blood stains of the blood group ‘A’ on the knife which was seized at the instance of the accused.

27. As per the prosecution case, the deceased Bhardwaj aged about 11 years is kidnapped by the accused for ransom and caused his death. To prove the said circumstance, the prosecution placed reliance on the evidence of PW-1/Babita Sahare examined vide Exh.18, who is the mother of the deceased. Her evidence shows that, the deceased Bhardwaj is her younger son aged about 11 years. The day 15.09.2016 was Ganpati Visarjan day. Accused is her neighbour. On 15.09.2016., she attended her work at 07.30 a.m., and returned home at 05.00 p.m. When she returned home, her husband and elder son were present in the house, whereas her younger son was not in the house, and therefore, she enquired with her husband who disclosed that, he returned from work in the afternoon at about 02.30 to 03.00 p.m. The deceased obtained his mobile phone for playing games and went outside and since then he not returned home. They thought he might have gone to watch the procession of Ganpati Visarjan but he has not returned, therefore they searched for him for whole night but the deceased was not found. She also enquired with the accused whether he has seen her son, on which accused informed that he gave Rs.10/- to him in the afternoon and since then he did not see him.

28. Her evidence further shows that, on the next day morning she found her Nokia mobile handset lying in the courtyard wrapped in the polythene bag having sim card of Idea company. She further observed that, the sim card of Vodafone company which was inserted in her handset was missing. She switched on the mobile phone but it was immediately switched off. The accused has obtained mobile phone from her and disclosed that there is no balance, therefore she gave him Rs.50/- and he recharged by using Rs.20/-. Thereafter, she alongwith her husband, elder son and other neighbours approached the Police Station and informed about missing of her son.

29. Her evidence further disclosed that, after she returned from the Police Station on 16.09.2016 the sister of the accused approached to her stating that there is a call for her and she received the call wherein the caller has told her that:

She handed over the call to her neighbour Madan Pimpalkar and represented the caller that the person to whom she has handed over the call is the father. The caller has repeated the same threatening to Madan Pimpalkar. As the call was received on the phone of the accused she enquired with the accused how the phone call was received on his mobile and he disclosed that he has removed the Idea sim card from her mobile handset and inserted in his mobile handset. It further revealed to her that, the phone call received on her mobile No.9623515809 from mobile No.8698134726 which is her Vodafone number and was missing. Thereafter, she came to know that the accused took her son on his bicycle as PW-5/Dipak Itkar and Kajal Pralhad Mogre informed her that her son was playing with them on 15.09.2016 at 02.00 p.m and accused took him to bring the cigarette. Her evidence further disclosed that, there was a dispute between her and the parents of the accused, as the parents of the accused suspected that she has killed their daughter 12 years of age by performing black magic. Thus, as per her evidence there is a previous dispute between the parents of the accused and her on the aspect that they suspected her involvement in causing the death of their daughter.

30. The evidence of PW-1/Babita Sahare further shows that, the sim card of Idea Cellular company bearing No.9623515809 is in the name of her brother Khemraj Dudhalkar and the Vodafone sim card bearing No.8698134726 is in the name of her mother-in-law Mirabai. As it was disclosed to her that the accused is involved in causing the death of the deceased, she lodged the report Exh.19 and FIR at Exh.20. Her further evidence shows that, she has shown the spot where the mobile was found by her on 16.09.2016 in the morning. Police have also seized the said mobile alongwith battery and sim card of Idea company. The seizure memo is at Exh.21. The said mobile handset was marked as Article-A. She further disclosed that, at the time of the incident her son was wearing one green and white check shirt and one green half pant. She identified the said clothes as Articles-B and C.

31. Her cross-examination shows that, she has not stated to the Police that the phone call was received on the mobile handset of the accused demanding the ransom. She has also not stated while giving the report that the accused disclosed to her that he has inserted the sim card in his mobile phone. Except the above said cross-examination, nothing is brought on record.

32. The FIR shows that, the alleged incident has occurred on 15.09.2016 to 16.09.2016 in between 03.00 p.m. to 02.00 p.m. of the next day and the FIR was lodged on 16.09.2016 at 02.00 p.m.

33. To corroborate her version prosecution has examined PW-2/Bhaskar Sahare father of the deceased vide Exh. 24. His evidence is on the similar line that on 15.09.2016 he returned home from work at 02.00 to 02.30 p.m. At the relevant time, his son was playing outside the house of Shankar Mungelwar alongwith Dipak Itkar and Akash Mogre. After about half an hour when he was resting at home, his son came home and taken the mobile phone for playing the game. Though he restrained from taking the mobile outside and also enquired with him whether he wanted money. Deceased disclosed that, he is having amount of Rs.7/- given by his mother and Rs.10/- given by the accused and he do not want any money but he want a mobile. His evidence further shows that, when his wife returned home she enquired about the deceased and he disclosed that the deceased has taken his mobile phone in the afternoon and since then he has not returned back. He as well as his son searched for the deceased but they could not found him. They thought that, he might have gone to Durgapur or Chandrapur to watch the procession of Ganpati Visarjan. Therefore, he gone to the city to search him. Announcement was made on speaker at Jatpura gate but deceased was not found, therefore he returned home at 02.00 a.m., in the midnight. On the next day, his wife found the mobile given to the deceased in the courtyard wrapped in the polythene bag. In the morning they were searching their son and in the afternoon at about 12.00 hours his wife received a phone call by which the amount of Rs. 4 Lakhs was demanded and they were threatened that if the amount is not paid, they will kill their son. Therefore, they approached to the Police Station and informed about the phone call. His evidence also shows that, the phone call received on his mobile No.9623515809 from his another Vodafone No.8698134726. His evidence also corroborates the evidence of PW-1/Babita Sahare that the sim card of Idea Cellular company was in the name of his brother-in-law and the sim card of Vodafone company is in the name of his mother. He further stated that, when the mobile handset was found, the sim card of Idea company was in the handset but sim card of Vodafone company was not in his handset. The phone call was received from his Vodafone number on the Idea Cellular number. He has also suggested the motive behind the said incident that, the parents of the accused suspected that their daughter was killed by the Informant by black magic. His evidence also shows that, he came to know from the Police that the accused took the deceased to Durgapur Jungle on the bicycle and killed him.

34. His cross-examination shows that, there was no quarrel between him and the accused Dewa but he stated that, the quarrel is with his parents. From his cross-examination it further brought on record that, he has seen Dewa between 07.00 to 08.00 p.m., and his son Bhavik was alongwith him. He further admits that, when his wife came home his son Bhavik was at home. He further admits that, despite he asked his son not to go anywhere his son went outside. He admits that, as he was sleeping he do not know when his son went outside. From his cross-examination attempt was made to show that PW-2/Bhaskar Sahare is tutored. It was brought on record that, Police got the statement memorized from PW-2/Bhaskar Sahare. He admits that, Police Constable Madavi got the said statement memorized from him. Thus, from the cross-examination the attempt was made to show that, as the witness has memorized his statement his evidence deserves to be discarded.

35. The evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare is further corroborated by PW-3/Madan Pimpalkar to the extent of receipt of the phone call on the mobile handset of the accused. The evidence of PW-3/Madan Pimpalkar vide Exh. 29 shows that, on 15.09.2016 the Informant PW-1/Babita Sahare came to his house and was enquiring about her son. She enquired with him about her son and he disclosed that, the deceased was not seen by him since 02.00 p.m., therefore he also thought that the deceased had been to see the Ganpati Visarjan procession. His evidence shows that, he had been to Chandrapur to see the Ganpati Visarjan and searched the deceased but he could not see him and he came home at 12.00 to 12.30 a.m. On the next morning there was a hue and cry at the house of the Informant. Therefore, he went to her house and he came to know from the Informant that somebody had dropped mobile in front of their house. Thereafter, they started searching the deceased but deceased was not found. On 16.09.2016, at about 11.00 to 11.45 a.m., when they were standing in front of the house of Informant, sister of the accused Laxmi Deosare gave the mobile in the hand of the Informant Babita Sahare. Babita Sahare was scared while talking and handed over the phone to his hand and he communicated with the caller, who told that “your son is kidnapped give Rs. 4 Lakhs otherwise your son will be killed, the caller further threatened that if you approach to the Police Station then also he will be killed”. After 10 to 15 minutes accused came there. They enquired with the accused how the phone call was received on his handset and he disclosed that he inserted the sim card of Idea Cellular of the Informant in his mobile handset. Thereafter, they went to the Police Station and informed the Police.

36. Regarding the above said incident, PW-3/Madan Pimpalkar is cross-examined but he stated that, he is unable to tell the mobile number which was seized. He cannot tell the sim card and number of battery. As far as the incident regarding disclosure by the accused and threatening call is concerned, which remained unchallenged as PW-3/Madan Pimpalkar is not cross-examined on that aspect. The defence has brought the omission on record that PW-3/Madan Pimpalkar has not stated that the accused inserted the sim card of PW-1/Babita Sahare in his mobile phone. On perusal of the statement of PW-3/Madan Pimpalkar, it appears that, he has stated the said fact while recording his statement. Therefore, it is not an omission. PW-3/ Madan Pimpalkar is not only a witness but he also acted as a panch on spot where the mobile was found thrown, seizure panchnama of the mobile phone of the Informant, panch on arrest panchnama and panch on seizure of the clothes of the accused. This evidence will be discussed at the relevant time.

37. Thus, the evidence of these three witnesses shows that, they came to know that, the deceased found missing since 15.09.2016 from 02.00 p.m. and thereafter was not found. The evidence further shows that, the Informant PW-1/Babita Sahare has received a threatening call from her Vodafone No.8698134726 on her another No.9623515809 which is of Idea Cellular company when the said card was inserted by the accused in his mobile handset.

38. The evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare shows that, the mobile number which they were using i.e. 9623515809 is in the name of brother of the Informant i.e. PW-10 Khemraj Dahelkar. To establish the said fact, PW-10/Khemraj Dahelkar is examined vide Exh.125, who corroborated the version of PW-1/Babita Sahare and PW-2/ Bhaskar Sahare. His evidence shows that, his sister was not having sim card as she was not having documents, therefore he brought the sim card for her of Idea company from the shop of Ravi Dhande by giving his own documents i.e. Identity card in the nature of Election Card and he handed over the said sim card to his sister PW-1/Babita Sahare. He has produced the original Election Identity Card and the photocopy was compared with the original, which is marked at Exh.126.

39. His evidence further corroborated by PW-13/Sachin Shinde Nodal Officer working in Idea Cellular Company Limited. As per his evidence he received the requisition dated 28.11.2016 from Superintendent of Police, Chandrapur asking him to furnish Subscriber Details Record (SDR) alongwith Call Details Record (CDR) of mobile No.9623515809 for the period 14.09.2016 to 17.09.2016 alongwith the certificate under Section 65-B of the Indian Evidence Act. As per his evidence, the mobile sim card No.9623515809 is in the name of Khemraj Jaganji Dahelkar. The customer details i.e. Customer Application Form is at Exh. 141 and the said form shows that, it was forwarded to the company through Ravi Dhande. Said Exh. 141 shows the name of the Customer as Khemraj Jaganji Dahelkar i.e. PW-10.

40. The evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare shows that, another mobile No.8698134726 is in the name of mother of PW-2/Bhaskar Sahare. To prove the said fact, the prosecution has adduced the evidence of PW-14/Aditya Nifalkar Nodal Officer of Vodafone company. As per his evidence his office received the communication from S.P. Office, Chandrapur asking the CDR and SDR of mobile Nos.7798845496, 9158279356 and 8698134726 alongwith the customer details. As per his evidence, the mobile No.8698134726 is in the name of Mira Sahare mother of PW-2/Bhaskar Sahare, whereas the mobile No.7798845496 is in the name of Vilas Jadhao, whereas mobile No.9158279356 is in the name of Radhabai Devasare i.e. the mother of the accused. As far as Vilas Jadhao is concerned, who is the father of the child in conflict with law whose involvement is also revealed during the investigation.

41. Thus, the evidence of PW-1/Babita Sahare and PW- 2/Bhaskar Sahare that mobile number which PW-1/Babita Sahare and PW-2/Bhaskar Sahare were using bearing No.9623515809 is in the name of PW-10/Khemraj Dahelkar who is the brother of the Informant PW-1/Babita Sahare and another No. 8698134726 is in the name of Mirabai Sahare mother of PW-2/Bhaskar Sahare.

42. The another circumstance narrated by PW-1/Babita Sahare, PW-2/Bhaskar Sahare and PW-3/Madan Pimpalkar that PW-1/Babita Sahare has received a phone call from Vodafone sim card No. 8698134726 when the said sim card was in the mobile handset of the accused, is corroborated by PW-13/Sachin Shinde and PW-14/Aditya Nifalkar who are the Nodal Officers of Idea Cellular company and Vodafone company. The evidence of PW-13/Sachin Shinde shows that, as per the request of Superintendent of Police, Chandrapur he has provided CDR and SDR of mobile No.9623515809 for the period 14.09.2016 to 17.09.2016 alongwith certificate under Section 65-B of the Indian Evidence Act. Letter issued by him is at Exh. 139. His forwarding letter is at Exh. 140. He further deposed that, he obtained the Call Details Record from the server of the company by using his User ID and Password. He has also obtained the print out as per the record of the server and attested it under his signature and stamp of the company. He further deposed that, no alterations can be made in the said record of the server by any manual interference. He has also issued the certificate under Section 65-B of the Indian Evidence Act which is at Exh. 142. As per the CDR Exh.143, a call was received on mobile No.9623515809 from mobile No.8698134726 on 16.09.2016 at about 11.42 a.m., and its duration was 99 seconds. His further evidence shows that, as per the CDR report the said call was located from Tower No.40422-41112-29277 and the said Tower is located at Khatta No.325 at Durgapur. The CDR report is also alongwith the certificate under Section 65-B of the Indian Evidence Act.

43. This evidence is further corroborated by PW-14/Aditya Nifalkar who also deposed that, as per the request he has also obtained the CDR report of mobile No.8698134726 and forwarded the same alongwith the certificate under Section 65-B of the Indian Evidence Act. As per his evidence as per Exh. 152-A CDR and Exh.152-B SDR reports, there was outgoing call from 8698134726 on 9623515809 on 16.09.2016 at about 11.42 & 2 seconds in the morning for 99 seconds. The location was of Tower No.404270042548637.

44. Thus, considering the evidence of PW-1/Babita Sahare, PW-2/Bhaskar Sahare and PW-3/Madan Pimpalkar that PW-1/Babita Sahare has received a call on her Idea Cellular No.9623515809 at about 12.00 noon from her another No.8698134726 is corroborated by PW-13/Sachin Shinde Nodal Officer of Idea Cellular Company and PW-14/Aditya Nifalkar Nodal Officer of Vodafone Company.

45. Evidence of PW-13/Sachin Shinde shows that, at the time of call the location was Khatta No.325 at Durgapur. PW-14/Aditya Nifalkar has corroborated the said fact. Thus, consistent evidence is adduced by the prosecution to prove that the Informant PW-1/Babita Sahare has received a call on 16.09.2016 at about 11.42 a.m., which corroborates the fact that the Informant PW-1/Babita Sahare has received a threatening call from her Vodafone No.8698134726 which was missing since 15.09.2016.

46. The another circumstance on which the prosecution placed reliance on that, the deceased was lastly seen in the company of accused and witnessed by PW-5/Dashrath Itkar and PW-6/Deepak Itkar. The evidence of PW-5/Dashrath Itkar shows that, on 15.09.2016 at about 04.00 to 04.30 p.m., when he was proceeding to his sister’s place near Ayappa Mandir, he witnessed the accused at the corner of Ayappa Mandir with deceased Bhardwaj on the bicycle of the accused. The accused Dewa was taking deceased Sonu alias Bhardwaj on his bicycle and they were proceeding towards the check post on Padmapur road. Deceased was sitting behind him on the bicycle. When he returned home after watching Ganpati procession in the midnight and in the next morning he came to know that deceased Sonu was missing. Subsequently, he came to know that the Informant PW-1/Babita Sahare has received a phone call that the deceased is kidnapped, therefore he went to the house of Informant PW-1/Babita Sahare and he alongwith the Informant PW-1/Babita Sahare went to the Police Station and accused was also alongwith them. He enquired with the accused that he seen the deceased and accused together and accused disclosed that they were proceeding to answer the nature’s call and thereafter Sonu went to see the Ganpati procession. This witness also stated about the clothes which the deceased was wearing.

47. The cross-examination of this witness also shows that, the Ayappa Mandir is in Urjanagar. The people of slum used that place for answering the nature’s call. He admits that, when his wife told that Sonu was missing, he felt that Sonu might have gone to see the Ganpati procession. He further admits that, many boys from Urjanagar had gone to Chandrapur to watch the Ganpati procession.

48. The another witness examined by the prosecution is a child witness PW-6/Deepak Gajanan Itkar vide Exh. 54 on the last seen. PW-6/Deepak Itkar is the child witness. To ascertain his competency, a preliminary enquiry was conducted by the Trial Judge and on his satisfaction his evidence was recorded in question answer form. His evidence shows that, on the day of incident he at about 02.00 p.m., alongwith the deceased, Kajal, Lobo and Rohit were playing Laghori game on street near his house. At the relevant time, accused Dewa came there and called Sonu (nick name of the deceased). Sonu refused to go but accused told him that he will give him Rs.10/-, and therefore, Sonu asked him what is to be brought and accused told him to bring Bidi. Therefore, Sonu went to shop. He enquired with the accused where Sonu is going but accused asked him to keep quite. Sonu went to shop and accused followed him. Thereafter, they went home.

49. His further evidence shows that, Sonu’s parents were searching him but he thought that Sonu might have gone to see Ganpati. Therefore, he has not disclosed this fact to anyone. PW-6/Deepak Itkar has also identified the accused from his photograph. During cross-examination he has stated the date of incident as 15.09.2016. He further stated during cross- examination that, he informed the Police that, Sonu went to the shop and Dewa followed him. He also stated that, he informed the Police that Dewa asked him to keep quite and thereafter they went home. Though these facts are brought on record as omissions but on perusal of the statement of PW-6/Deepak Itkar in fact it is not an omission. The another omission is brought on record that, he has not stated before the Police that the accused told Sonu to bring Bidi, in fact it is not an omission but a contradiction to the extent of word ‘Bidi’, as the statement shows the word ‘cigarette’. Thus, as far as the incident that when the deceased was playing with PW-6/Deepak Itkar and other children, the accused approached to him, give him Rs.10/- and asked him to bring Bidi and deceased went to the shop and accused followed him, is not shattered during the cross- examination. On the contrary, during chief-examination PW-6/Deepak Itkar has not stated the date which came on record during the cross-examination. The evidence of PW-6/Deepak Itkar further corroborates the evidence of PW-2/Bhaskar Sahare, which shows that the deceased informed to him that he is having Rs.10/- which is given to him by the accused.

50. The next circumstance on which prosecution relies upon is the recovery of the dead body at the instance of the accused. To prove the said circumstance, the prosecution placed reliance on the evidence of PW-4/Bhushan Gajpure, who was serving as a Round Officer in Forest Department, Chandrapur. He testified vide Exh. 41 and stated that he received the instructions from his superior to approach to the Police Station Durgapur as Police are requiring two persons as panchs. The notice was also received by him from the Police to act as a panch which is at Exh. 42. The accused made memorandum statement in his presence as well as in the presence of another panch Ajay Tijare that he is ready to show the place where he has hidden the dead body. He was talking about the dead body of child Sonu Sahare. Accordingly, his memorandum statement was recorded in their presence. They as well as the accused and the Investigating Officer put their signatures which is at Exh. 43. Thereafter, they alongwith accused, Police and one photographer proceeded in a Police vehicle. The accused led them via check post, Ayappa Mandir and at some distance from Ayappa Mandir on Durgapur-Padmapur road, accused asked to stop the vehicle. Accordingly, they stopped the vehicle and accused led them to Zudpi Jungle near a place like a stream (Nala). Accused shown the place where the dead body was hidden, which was in the grass. It was at about 10.30 to 11.00 p.m. on 16.09.2016. They noticed blood stains on some rocks and blood mixed sand. They also noted that there were signs of dragging of dead body on the said sand. Accordingly, the panchnama was drawn which is at Exh. 44.

51. Thus, as per the evidence of PW-4/Bhushan Gajpure, on the basis of a memorandum statement of the accused the place where the dead body was hidden was discovered and it was a place not accessible to all. His cross-examination shows that, he acted as a panch in 3 to 4 matters and all the matters are of anti corruption. He denied that, the accused was brought in that room where he and another panch was sitting after 45 minutes. He further stated that, accused was enquired whether there is any pressure on him and the conversation took place was written down. He further admits that, when they reached to the Police Station, Police Officer Singanjude told them that they have to discover the dead body but he voluntary stated that it was told in a different manner.

52. Thus, after going through the entire cross- examination, nothing is brought on record to show that the statement of the accused was not voluntary and extracted by the Police by using force. In fact, PW-4/Bhushan Gajpure has specifically narrated that the accused made a statement in their presence and in pursuance of the said statement, the dead body was recovered. The place where the dead body was recovered, PW-4/Bhushan Gajpure further noted the blood stains and signs of dragging of the dead body.

53. To corroborate these facts, the prosecution further placed reliance on the evidence of PW-9/Vilas Awade examined vide Exh. 72. The evidence of PW-9/Vilas Awade shows that he was called by the Police on 16.09.2016 to obtain the photographs. The notice given to him is at Exh. 74. He reached to the Police Station at 09.30 p.m. The accused was giving statement in presence of panchas and Police Officer. At that time, he took four photographs and then he was waiting outside. The said photographs are at Articles P1 to P4. His evidence further shows that, thereafter he alongwith the panchas, accused and Police staff went towards the check post on Padmapur road. After reaching there, they got down from the vehicle and followed the accused towards the Zudpi Jungle. He pointed out the place at some distance from the Nala in the bushes. There he took photographs of the dead body. He has also taken the photographs of mud, stones and place where the blood was spilled on the ground. In all he had taken 27 photographs which are Articles N1 to N27. He has also produced the print outs of the photographs and bill of the photographs is at Exh.75.

54. The cross-examination of this witness regarding obtaining of photographs is only to the extent that he has not obtained the certificate under Section 65-B of the Indian Evidence Act, from the owner of Sonalika Lab, where the photographs are developed. Except this cross-examination nothing is extracted from the witness to disbelieve his version.

55. On the aspect of memorandum statement and discovery of the place where the dead body was concealed, the prosecution has further placed reliance on the evidence of PW-15/Revchand Singanjude Investigating Officer, whose evidence shows that, as the accused shown his willingness to make a voluntary statement he issued letter to the Divisional Forest Officer to depute two employees to act as panchas. Accordingly, two panchas namely PW-4/Bhushan Gajpure and Ajay Tijare were deputed. He also called PW-9/Vilas Awade photographer. He issued the notices to them to act as panchas and photographer. In presence of these panchas, accused gave a statement that he will show the place where he hide the dead body. The statement was reduced into writing which is at Exh. 43. The photographs when accused was making statement are also obtained which are at Exhs. 78 to 81. Thereafter, the accused led them towards the spot and shown the place which was situated in Forest near one Canal. There was a pool of blood. Towards its right side there was one fallen tree which was cut down. There were signs of dragging of the dead body. Accused led them towards the bushes and shown the dead body lying in the bushes. Accordingly, panchnama Exh.44 was drawn. The photographs of the dead body, pool of blood and blood stains at various places were taken. The said photographs are at Exhs. 82 to 103.

56. PW-15/Revchand Singanjude is cross-examined on the aspect of memorandum statement and discovery of place where the dead body was concealed. Except the denial nothing is brought on record to falsify the evidence of PW-15/Revchand Singanjude as to the memorandum statement. He admitted during the cross-examination that PW-4/Bhushan Gajpure reached the Police Station at 09.45 p.m. He further admits that, near Durgapur Police Station there is residential locality. This cross-examination to show that, there was no necessity to call the Forest Officer though independent panchas were available. PW-15/Revchand Singanjude explained that the employees of the Forest Department are available during the night hours also, and therefore, he called the Forest Officers to act as panchas. Thus, though extraneous cross-examination is carried out nothing incriminating is brought on record to shatter the evidence of Investigating Officer as far as the evidence regarding memorandum statement of the accused and discovery of the place where the dead body was hidden.

57. The next circumstance on which the prosecution placed reliance on is the recovery of weapon at the instance of the accused Dewa. To prove the said circumstance also, the prosecution placed reliance on the evidence of PW-4/Bhushan Gajpure, PW-9/Vilas Awade and PW-15/Revchand Singanjude Investigating Officer. As per the evidence of PW-4/Bhushan Gajpure on 18.09.2016 again he was called to act as a panch. Another panch Ajay Tijare was present. Notice was issued to him which is at Exh. 47. At the relevant time, photographer PW-9/Vilas Awade was also present. In their presence accused made a memorandum statement that he is ready to show the place where the knife was hidden by him which was used in the commission of the crime. His statement was reduced into writing. The admissible portion is at Exh. 48. The accused led them and at the relevant time Police staff, another panch and photographer were present. Accused took them in Zudpi Jungle. The place was about 200 feet ahead from the place where the dead body was found. The accused produced the knife digging from the mud. The handle of the knife was circular and it was about 30 c.m. in length. It was iron knife around 3.5 c.m. in width. It was of the dimension of a Khanjar. He identified the said knife and accordingly panchnama Exh. 49 was drawn. As per his evidence, the said knife was sealed and seized in their presence by affixing the label of their signatures. The cross- examination of PW-4/Bhushan Gajpure on this aspect was also carried out but nothing incriminating is brought except the denial.

58. PW-9/Vilas Awade who was alongwith PW-4/Bhushan Gajpure and PW-15/Revchand Singanjude to obtain the photographs also testified that, he was called on 18.09.2016 to obtain the photographs. The notice was issued to him which is at Exh.106. He was called to obtain the photographs. He took the photographs when accused was giving the statement. Then accused took them to Zudpi Jungle. When accused shown the place where the weapon was concealed, the photographs were taken when accused was leading them to the said place and also when accused produced the weapon by digging the said place. The bill of the said photographs was also issued by him which is at Exh. 107. He has also issued the certificate under Section 65-B of the Indian Evidence Act regarding the process of development of the said photographs. The said photographs are at Article P1 to P15. As already observed earlier during the cross-examination nothing incriminating is brought on record to shatter the evidence of PW-9/Vilas Awade who has obtained the photographs.

59. To corroborate the version of PW-4/Bhushan Gajpure and PW-9/Vilas Awade, the evidence of PW-15/Revchand Singanjude Investigating Officer is also adduced whose evidence also shows that on 18.09.2016 he has issued the letter to the Divisional Forest Officer, Chandrapur as accused shown his willingness to show the weapon of the offence. In presence of the panchas accused gave a statement. Photographer has obtained the photographs when accused was giving the statement. Thereafter, accused led them via Ayappa Mandir from WCL check post and took them in the Forest area. He dug out the place and produced one knife which was seized in presence of the panchas. The length of the knife with handle was 31 c.m. and width of the blade was 3.5 c.m. The blade was having one side sharp edge. There was mud attached to the blade. The knife and sample of the soil were taken and the samples were seized. Accordingly, the discovery panchnama was drawn which is at Exh.49. As per his evidence the knife was being measured and sealed.

60. The cross-examination of PW-15/Revchand Singanjude was also taken but except the denial and the suggestion that blood stains were got imposed on the weapon which is denied by the Investigating Officer, nothing incriminating is brought on record to falsify the version.

61. On perusal of the entire evidence of these witnesses it reveals that, on 16.09.2016 notice given to PW-4/Bhushan Gajpure is at Exh. 42. The notice given to PW-4/Bhushan Gajpure on 18.09.2016 is at Exh. 47. The Investigating Officer has taken logbook entry while proceeding for the discovery panchnama which is at Exhs. 169 and 170 which is not challenged by the defence. The notice issued to the photographer is at Exh.73 dated 16.09.2016 for obtaining the photographs of the place where the mobile of the Informant PW-1/Babita Sahare was found. Another notice dated 16.09.2016 for obtaining the photograph is at Exh. 74. Photographs taken when accused gave memorandum statement are Articles N1 to N4. Photographs are taken at place where dead body was found hidden Articles N5 to N27. Bill of photographs dated 16.09.2016 Exh. 75. Prints of the photographs Article N1 to N27. Certificate under Section 65-B Exh. 77. Notice by Police dated 18.09.2016 to PW-9/Vilas Awade Exh.106. Photographs of entire process from recording statement till recovery of Articles P1 to P15. Bill dated 18.09.2016 Exh. 107. The photographs Article N1 to N3 are marked as Exhs. 78 to 80, Articles N5 and N6 accused leading panchas and Police Exhs. 82 and 83. Articles N9 to N11 accused shown the place where dead body was concealed Exhs.86 to 88. Articles N12 to N16 accused showing dead body. Photographs of the dead body Exhs. 89, 91 to 93. Article N19 photograph of rock having blood stains Exh. 96. Article N20 photograph of dead body Exh. 97. Article N23 and N24 photograph of blood stains at spot Exhs.100 and 101. Article P1 accused making statement Exh. 108. Article P2 accused signing the statement Exh. 109. Articles P3 & P4 panchas signing the statement Exhs.110, 111. Articles P7 & P8 accused leading panchas and Police Exhs.114 and 115. Articles P9 and P10 accused showing place where weapon concealed Exhs. 116 and 117. Articles P11 and P12 accused showing digging and removing knife Exhs. 118 and 119. Articles P15 panchas and Police verifying and handling knife Exh. 122.

62. To corroborate the prosecution case that the death of the deceased is caused due to the assault by knife, the Investigating Officer has obtained the opinion from the Medical Officer and to prove the said circumstance, the prosecution placed reliance on the evidence of PW-8/Dr. Shashikant Dhobale, whose evidence shows that on 19.09.2016 he had received a query from the Investigating Officer alongwith the letter and weapon knife and six stones in a sealed condition. He has also given the acknowledgment of the receipt of the said letter. The said acknowledgment is at Exh.67. On 19.09.2016 itself he has examined the weapon and vide query report Exh. 68, he described the knife as sharp cutting, pointed and dangerous weapon. The dimension of weapon given by him having total length of 31 c.m. The length of blade 20 c.m., breadth 3.5 c.m., thickness 0.1 c.m., with one edge having sharpness and point tapering tip. The length of the handle 11 c.m., circumference of the handle 8.5 c.m. He further observed that mud stains present over blade and handle. He opined that, injury No.1 mentioned in column No.17 i.e. incised wound 14.4 c.m. at trachea deep cut over anterior aspect of neck horizontally extending from 4 c.m. below left mastoid running anteriorly just below thyroid cartilage cut 2 c.m. below right angle of mandible underlying tissue with internal damage can be possible by the said weapon knife. He further opined that injury Nos. 2 to 5 mentioned in column No.17 with internal damage can be possible by the stones examined by him. He further advised for the chemical analysis of these weapons.

63. During cross-examination of PW-8/Dr. Shashikant Dhobale, on this aspect he admitted that, the internal injuries mentioned in column No.19 of Exh. 66 was not found having a corresponding external injury mentioned in column No.17 regarding right frontal area. He further stated that, it is not necessary that the internal injury on vertex region in case of being hit by stone being blunt object there will be an external injury over the scalp. He further admits that, such type of injuries is possible if the deceased child was hit by a stick rolled with rubber on one side if the assault is with sufficient force. The further admission shows that, the first injury mentioned in column No.17 is also possible by weapon sword and knife. It specifically came on record during cross-examination that, when knife was brought before him it was in a sealed condition. The cross-examination further shows that, knife was again sealed and forwarded to the Police. Thus, this cross-examination sufficiently shows that, when the weapon was received by the Medical Officer it was in a sealed condition and while forwarding it to the Police it was resealed.

64. PW-8/Dr. Shashikant Dhobale further received the requisition from the Investigating Officer on 08.12.2016 to ascertain the time of the death. The requisition is at Exh. 69. Vide Exh. 70, the Medical Officer has opined that the time of death to be 36 to 48 hours prior to postmortem examination. The postmortem examination of deceased was conducted on 17.09.2016 between 12.30 p.m. to 01.45 p.m. Deceased got missing on 15.09.2016 at about 03.00 p.m. His dead body was found on 16.09.2016 at about 10.06 to 11.15 p.m. and opinion of the Medical Officer the time of the death between 36 to 48 hours corroborates the story of the prosecution that the death of the deceased is caused by the accused in between 15.09.2016 from 03.00 p.m. to 16.09.2016 to 02.00 p.m.

65. Besides the evidence of these panchnamas, the prosecution has also adduced the evidence of PW-3/Madan Pimpalkar who narrated about the panchnama regarding the spot where the mobile was found thrown. Said panchnama is at Exh. 31. PW-3/Madan Pimpalkar also acted as a panch on the arrest panchnama of the accused. During arrest panchnama injury on the left hand finger of the accused was also witnessed. This evidence is further corroborated by PW-15/Revchand Singanjude Investigating Officer. PW-3/Madan Pimpalkar also acted as a panch on the seizure memo i.e. seizure of mobile phones of the accused. From the accused two mobile handsets one is of Samsung Company and another is of Intex Company alongwith their batteries and sim cards were seized vide Exh. 35. In presence of PW-3/Madan Pimpalkar clothes of the accused were also seized from his house vide Exh. 37.

66. PW-4/Bhushan Gajpure also acted as a panch on the spot panchnama drawn at the spot where the dead body was found. As per his evidence, at the time of the spot panchnama they have noted the stones wherein blood stains are found and the blood stains at various places including the pool of blood. In their presence Police collected simple soil, blood stained soil and sand and six small and big stones. The said panchnama is at Exh. 45. Inquest panchnama of the dead body of the deceased is at Exh. 46. The evidence of PW-4/Bhushan Gajpure as to the blood stains found on the spot and the seizure of the stones remained unchallenged.

67. PW-7/Ganesh Nimsatkar who acted as a panch on seizure memo of the clothes of the deceased. The clothes were green and white coloured check shirt, green colour half pant and brown coloured underwear. The said clothes were identified by PW-1/Babita Sahare. The description of the said clothes is also narrated by PW-5/Dashrath Itkar. PW-7/Ganesh Nimsatkar further acted as a panch on seizure of the blood samples of the accused which is at Exh. 60.

68. PW-11/Sonal Khose is acted as a panch on the hash value panchnama regarding the video and photographs which were taken during the investigation. PW-12/Roshan Chandekar is the Police Constable from the Cyber Cell, whose evidence is to the extent that he is an expert to take out the hash value of the photos. The certificate under Section 65-B of the Indian Evidence Act is at Exh. 134 and screen shot of the hash value is at Exh. 135.

69. Besides the evidence of PW-15/Revchand Singanjude as to the memorandum statement and discovery panchnama as to the place where the dead body was found and recovery of weapons, he narrated about the investigation carried out by him. His evidence shows that, to obtain the CDR and SDR reports of mobile No.8698134726, he issued the communication to the Superintendent, Cyber Cell which is at Exh. 156. He also issued a letter to the Superintendent of Police for obtaining the customer details which is at Exh.157. He further stated as to the seizure of the mobile handset from the accused, his evidence further shows that, he has communicated with the photographer by issuing the notice and availed his services for obtaining the photographs. He also issued the letter to avail the services of the employee of Cyber Cell for obtaining the videography as to the various panchnamas conducted by him. He also communicated to the Medical Officer to obtain his opinion by referring the weapons and obtained his opinion. He also obtained the opinion as to the time of death.

70. His further evidence shows that, during investigation it revealed to him that one child in conflict with law in also involved. He has carried out the investigation regarding his involvement. The another sim card of Informant PW-1/Babita Sahare bearing No. 8698134726 was seized from the child in conflict with law. He has forwarded all the incriminating weapon and articles to C.A., through the requisition dated 20.09.2016. The said forwarding letter is at Exh. 178. His evidence further shows that, he has taken the entries in the station diary vide Exhs. 197 to 200.

71. Thus, PW-15/Revchand Singanjude has stated about the chain of the events which revealed to him during the investigation. As already observed that though PW-15/Revchand Singanjude was cross-examined at length, except the suggestion that there was interpolation by him as to the blood stains on the weapon which is denied by him, nothing incriminating is brought on record. On the contrary the cross-examination shows that, the Ayappa Mandir is an isolated place. Thus, this cross-examination shows that, the deceased was taken towards the Ayappa Mandir and ahead of Ayappa Mandir there is a Forest which is an isolated area. The said area was chosen by the accused to take the deceased.

72. The additional material evidence on which the prosecution relied upon is the scientific evidence. As per the evidence of PW-3/Madan Pimpalkar who acted as a panch on various panchnamas and PW-15/Revchand Singanjude Investigating Officer including seizure of the clothes of the accused shows that, the clothes of the accused were seized on 18.09.2016. Similarly, the evidence of PW-4/Bhushan Gajpure and PW-15/Revchand Singanjude Investigating Officer shows that the clothes of the deceased were seized on 17.09.2016. The weapon knife of the offence at the instance of the accused was seized on 18.09.2016, whereas the stones from the spot where the dead body was found were seized on 16.09.2016. As per Exh.178 requisition to the forensic analysis shows that all the articles are forwarded to C.A. on 20.09.2016. On 19.09.2016, the weapon knife and stones were forwarded to PW-8/Dr. Shashikant Dhobale Medical Officer. On the same day, the Medical Officer examined the weapon and resealed it and handed over to the Police. The consistent evidence shows that, immediately after seizure the articles were sealed.

73. The evidence of PW-8/Shashikant Dhobale shows that, when he received the weapons the same were in a sealed condition and the C.A. Reports which are at Exhs.5 to 14 shows that, the articles received were in a sealed condition. The material C.A. report Exh. 5 shows that, Article A1 blood stains stones seized from the spot, Article A2 sand collected from the spot, Article A3 simple soil, Article A4 sand with hair of the deceased, Article B1, B2 and B3 clothes of the deceased, Article C1, C2 and C3 clothes of the accused and Article D1 knife seized from the accused were examined. Out of which, Article A2 sand collected from the spot, Article B1 half shirt of the deceased, Article B2 half pant of the deceased and Article B3 underwear of the deceased and knife seized from the accused are stained with blood group ‘A’. As per Exh. 6 blood group of the deceased is ‘A’ and as per Exh.7 blood group of accused is ‘AB’. Thus, scientific evidence shows that the knife which is seized at the instance of the accused having blood stains of blood group of the deceased, similarly the sand collected from the spot is also having blood stains of blood group ‘A’ of the deceased. The Article A4 sand with hair, Article A1 stone collected from the spot, Article B1 to B3 clothes of the deceased wherein blood is found is human but blood group is not detected. Since the seizure of the articles the entire chain of custody is established by the prosecution. The articles are forwarded immediately after seizure within two days for the analysis. There is nothing on record challenging the above said scientific evidence.

74. As already observed that the entire case of the prosecution is rested on circumstantial evidence. The principles as to the circumstantial evidence are again laid down by the Hon’ble Apex Court in the Case of Abdul Nassar Vs. State of Kerela & Anr., reported in 2025 SCC OnLine SC 111, and also laid down the principles of appreciation and evaluating the evidence in cases based on circumstantial evidence, as follows:

                   i). The testimony of each prosecution and defence witness must be meticulously discussed and analysed. Each witness’s evidence should be assessed in its entirety to ensure no material aspect is overlooked.

                   (ii). Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact. Thus, the reasonable inferences that can be drawn from the testimony of each witness must be explicitly delineated.

                   (iii). Each of the links of incriminating circumstantial evidence should be meticulously examined so as to find out if each one of the circumstances is proved individually and whether collectively taken, they forge an unbroken chain consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

                   (iv). The judgment must comprehensively elucidate the rationale for accepting or rejecting specific pieces of evidence, demonstrating how the conclusion was logically derived from the evidence. It should explicitly articulate how each piece of evidence contributes to the overall narrative of guilt.

                   (v). The judgment must reflect that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.”

75. Coming to the present case, there is no dispute regarding the cause of death of the deceased. Evidence of PW-8/ Dr. Shashikant Dhobale substantiated by the inquest panchnama and the injuries found on the person of the deceased, sufficiently shows that the prosecution has proved the homicidal death of minor boy Bhardwaj. From the cross-examination it is clear that, the defence has not seriously challenged the cause of death due to injuries.

76. The prosecution placed reliance on various circumstances. One of the circumstance is recovery of dead body at the instance of the accused. To prove the said circumstance prosecution placed reliance on PW-4/Bhushan Gajpure, PW-9/Vilas Awade and PW-15/Revchand Singanjude Investigating Officer. PW-4/Bhushan Gajpure is the panch witness on the memorandum statement under Section 27 of the Indian Evidence Act. His evidence shows that, the accused made memorandum statement in his presence and in presence of other panch. Prior to that, requisition was received in his office and he consented to act as a panch. Notice was also received by him from the Investigating Officer. His evidence is to the memorandum statement of the accused and the recovery of dead body at his instance from Zudpi Jungle. His evidence shows that, in pursuance of the said statement the accused led them and shown the place where the dead body was concealed. It was a place in the bushes and there were signs of dragging the dead body. He has also observed the blood stains at the said place. Accordingly, the panchnama was drawn. The said panchnama is at Exh.44. This evidence is further corroborated by PW-9/Vilas Awade who is the photographer who obtained the photographs from recording the statement of the accused till he shown the place where the dead body was concealed. It is further corroborated by PW-15/Revchand Singanjude Investigating Officer. As far as the cross-examination is concerned, the evidence as to the memorandum statement and discovery of dead body, is not shattered. As already observed that, neither the evidence of PW-4/Bhushan Gajpure nor the evidence of PW-9/Vilas Awade or PW-15/Revchand Singanjude was shattered to falsify the version as to the discovery of place of the incident. The said statement is made by the accused under Section 27 of the Indian Evidence Act.

77. Section 27 of the Indian Evidence Act is interpreted by the Hon’ble Apex Court in the case of Subramanya Vs. State of Karnataka, reported in 2022 LiveLaw (SC) 887 and held that the conditions necessary for the applicability of Section 27 of the Act are broadly discussed as under:

                   “(1) Discovery of facts in consequence of an information received from accused;

                   (2) Discovery of such fact to be deposed to;

                   (3) The accused must be in police custody when he gave information; and

                   (4) So much of information as relates distinctively to the fact thereby discovered is admissible.”

78. The doctrine thereunder founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. In view of Section 27 of the Indian Evidence Act what is admissible is the information and the same has to be proved. In other words, the information given by the accused while in custody which led to recovery of the articles has to be proved. It is therefore necessary that, the benefit of both the accused and the prosecution that the information given should be recorded and proved. The basic idea embedded in Section 27 of the Indian Evidence Act is the doctrine of confirmation by subsequent event. Doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from prisoner such a discovery is made on the strength of any information obtained from a prisoner, such discovery is guaranteed that the information supplied by the prisoner is true.

79. Here in the present case, nothing is on record to show that, the statement made by the accused was not voluntary. On the contrary, the oral evidence of PW-4/Bhushan Gajpure and PW-15/Revchand Singanjude supported by the photographs obtained by PW-9/Vilas Awade which are marked as Exhs. 79 to 81, 82, 83, 86 to 88, 89 to 93, 96 to 101 shows that, the accused made a voluntary statement and in pursuance of the said statement led the panchas and Police to the place where the dead body was concealed. Thus, there is nothing on record to disbelieve the versions of these witnesses.

80. The circumstance of recovery of incriminating weapon at the instance of the accused, is also proved by the prosecution through the evidence of PW-4/Bhushan Gajpure, PW-9/Vilas Awade and PW-15/Revchand Singanjude Investigating Officer. The evidence of PW-4/Bhushan Gajpure and PW-15/Revchand Singanjude shows that, the accused shown his willingness to make a statement and thereafter panchas were called and in presence of the panchas the accused made a memorandum statement regarding concealment of the place where the weapon was concealed. Accordingly, the accused led them towards the said place and the incriminating article weapon knife alongwith the blood stains on it was recovered. On perusal of the cross-examination of PW-4/Bhushan Gajpure, it reveals that except the admission that he acted as a panch in 3 to 4 cases, nothing incriminating is brought on record. The suggestion that the accused was brought in the room after 45 minutes is denied by the witness. The cross-examination further shows that, the accused was enquired whether he was under pressure. Thus, this cross-examination supports to the fact that, the statement of the accused was voluntary and at his instance the incriminating weapon was recovered. During cross-examination of PW-15/Revchand Singanjude Investigating Officer also accept the fact that, on knife the blood stains are planted which is denied by the Investigating Officer. No other material cross-examination is carried out. On the contrary, evidence of PW-4/Bhushan Gajpure and PW-15/Revchand Singanjude on account of memorandum statement and discovery at the instance of the accused is consistent and corroborative. It is further substantiated by the evidence of PW-9/Vilas Awade who was the photographer and obtained the photographs Exhs.108 to 111. The photographs i.e. accused leading panchas and Police Exhs.114 and 115, photographs i.e. accused showing place where weapon was concealed Exhs.116 and 117, photographs i.e. accused shown digging and removing the knife Exhs.118 and 119 and Exh.122 panchas and Police verifying the said knife. The evidence of PW-4/Bhushan Gajpure and PW-15/Revchand Singanjude is substantiated by these photographs.

81. The prosecution has examined PW-5/Dashrath Itkar and PW-6/Deepak Itkar which are on the circumstance of the last seen. As per the evidence of PW-5/Dashrath Itkar, when he was proceeding towards his sister’s house near Ayappa Mandir he has seen the accused and deceased proceeding together on the bicycle of the accused. His evidence shows that, thereafter he went to see the Ganpati procession and on the next day he disclosed the said fact to the Informant PW-1/Babita Sahare. The Informant PW-1/Babita Sahare also stated that, on the next day PW-5/Dashrath Itkar has disclosed that he has seen the deceased and accused together on 15.09.2016 in between 04.00 to 04.30 p.m.

82. The cross-examination of PW-5/Dashrath Itkar is only to the extent that, he has not narrated the alleged incident immediately. The said delay in disclosure is explained by the witness himself. He stated that, on 15.09.2016 after he witnessed accused and deceased together, he went to see the Ganpati procession and returned home in the midnight. On the next day he thought the deceased might have gone to see the Ganpati procession, he has not disclosed the same. The statement of PW-5/Dashrath Itkar is recorded by the Investigating Officer on 17.09.2016 i.e. immediately on the next day after the dead body was found. PW-6/Deepak Itkar is also a witness on the last seen. As per his evidence, on 15.09.2016 when he was playing alongwith the deceased and other children at 02.00 p.m. the accused approached the deceased, gave him Rs.10/- and sent him to shop to bring Bidi. On enquiry by him, the accused asked him to keep quite and accused also followed the deceased. Thus, PW-6/Deepak Itkar is also the witness on the last seen. During his cross-examination some omissions though put to the witness to the extent that he has not stated the names of other children while his statement was recorded, admittedly this omission is not proved by the defence during the cross-examination of Investigating Officer. On perusal of the statement of PW-6/Deepak Itkar it is not an omission as he has stated about the children who were playing alongwith him. The contradiction which is brought on record is only to the extent that he has stated in Police statement as a ‘cigarette’ and during deposition he has stated ‘Bidi’. Except that contradiction, the evidence of PW-6/Deepak Itkar remained intact.

83. The evidence of these two witnesses is criticized by the learned Counsel for the accused that there is a time gap between the last seen of the accused with the deceased and finding of the dead body of the deceased.

84. In the case of State of Goa Vs. Sanjay Thakran and Anr., (2007) 3 SCC 755, wherein the Hon’ble Apex Court observed that:

                   “31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.”

85. In para 34 of the aforesaid decision it is further observed that:

                   “34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.”

86. By applying the above said principle in the present case the deceased was not seen alive after he was seen with the accused. The accused was seen in close proximity to the deceased shortly before the time when he went missing and that in the absence of any plausible explanation from the accused the burden lies upon the accused to show what happened to the deceased, when they departed from each other. The prosecution, therefore relies upon this circumstance as an important link in the chain of events connecting the accused to the crime.

87. The evidence of PW-5/Dashrath Itkar and PW-6/Deepak Itkar is further criticized on the ground that there is delay in recording their statements. The statement of PW-5/Dashrath Itkar is recorded on 17.09.2016, whereas the statement of PW-6/Deepak Itkar is recorded on 19.09.2016. As it is already observed that PW-5/Dashrath Itkar himself has explained the said delay. PW-6/Deepak Itkar has also explained the delay. His chief-examination itself shows that, he has not informed the Police as he thought that the deceased might have gone to see Ganpati procession, and therefore, he has not told this fact to anyone. As far as the delay in recording the statement is concerned, it is well settled that, the case of the prosecution cannot be rejected solely on the ground that there is delay in examination of any particular witness.

88. In State of U.P. Vs. Satish, (2005) 3 SCC 114, which is referred in the recent judgment by the Hon’ble Apex Court in State of Madhya Pradesh Vs. Balveer Singh, Criminal Appeal No. 1669/2012 decided on 24.02.2025, wherein it is observed that:

                   “20. It is to be noted that the explanation when offered by the IO on being questioned on the aspect of delayed examination by the accused has to be tested by the court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the court can consider it to be one of the factors to affect credibility of the witness who were examined belatedly. It may not have any effect on the credibility of the prosecution’s evidence tendered by the other witnesses.”

89. Thus, primarily it was for the accused to question the Investigating Officer to explain the delay in recording the statement of PW-6/Deepak Itkar. At the same time the explanation is to be obtained from the Investigating Officer. Here in the present case, the Investigating Officer was not given an opportunity to explain the said delay. Mere delay in examining the witnesses do not automatically render their evidence unreliable, provided there is no indication of fabrication or undue influence. As far as the present case is concerned, there is nothing on record to show that, there is any fabrication or undue influence on the witnesses. Here in the present case, the delay is already explained by the witnesses.

90. The evidence of PW-6/Deepak Itkar is further challenged on the ground that he is a child witness. His competency is recorded by the Trial Court before his evidence is recorded. The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Indian Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to this questions, because of tender years. The child witness is found to be competent to depose subject to his capacity of understanding to the questions put to him or her and able to give rational answers. The testimony of such witness can be considered in terms of Section 118 of the Indian Evidence Act. The only additional factor to be considered is that the witness must be found to be reliable, exhibiting the demeanour of any other competent witness, with no likelihood of having being tutored. There is no requirement or condition that the evidence of child witness must be corroborated before it can be considered, and rather the insistence of any corroboration is only a rule of prudence that would depend upon the peculiar facts and circumstances of each case.

91. In the case of State of Madhya Pradesh Vs. Balveer Singh referred supra, after considering the catena of decisions the Hon’ble Apex Court observed in para no.35 which reads as under:

                   “35. From the above exposition of law, it is clear that the evidence of a child witness for all purposes is deemed to be on the same footing as any other witness as long the child is found to be competent to testify. The only precaution which the court should take while assessing the evidence of a child witness is that such witness must be a reliable one due to the susceptibility of children by their falling prey to tutoring. However, this in no manner means that the evidence of a child must be rejected outrightly at the slightest of discrepancy, rather what is required is that the same is evaluated with great circumspection. While appreciating the testimony of a child witness the courts are required to assess whether the evidence of such witness is its voluntary expression and not borne out of the influence of others and whether the testimony inspires confidence. At the same time, one must be mindful that there is no rule requiring corroboration to the testimony of a child witness before any reliance is placed on it. The insistence of corroboration is only a measure of caution and prudence that the courts may exercise if deemed necessary in the peculiar facts and circumstances of the case.”

92. The motive suggested by the prosecution behind this incident is that the parents of the accused suspecting that their daughter was killed by the Informant PW-1/Babita Sahare by black magic. The evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare shows that, there was a dispute between the parents of the accused and them on that count. Learned Counsel for the accused submitted that, the case is rested on circumstantial evidence, and therefore, the motive plays important role. Admittedly, except the evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare, there is nothing on record to show that, the parents of the accused suspecting that their daughter was killed by black magic by the Informant PW-1/Babita Sahare. Admittedly, the intention or motive is an inner compartment of the mind of that person. It is difficult to have direct evidence to prove the motive.

93. In Chunni Bai Vs. State of Chhatisgarh, AIR 2025 (SC) 2370, the Apex Court has held as under:

                   “47. Motive is usually the basis for causing the “intention” to commit any crime, but it is highly illusive and difficult to prove as it remains hidden in the deep recesses of the mind and is not comprehensible to others, unless disclosed by the perpetrator. Though under the law, it is absolutely not necessary that to prove an offence, motive is also required to be established if the intention or the mens rea can be safely inferred from the surrounding facts. But where the motive which can provide the basis for the intention appears to be totally missing, the court has to be very circumspect in drawing the inference of the proof of the presence of intention.

                   48. For committing a serious crime like homicide there could be various motivating factors. One may commit the crime of homicide propelled by anger or motivated by insult, humiliation or jealousy. Other motivating factors may be to exact revenge or by way of retribution or to hide certain crimes already committed. One may also commit homicide to gain undue pecuniary benefit or otherwise. One may commit such a crime out of sheer frustration and dejection with life channelising through violent acts. One may commit such crime because of superstitious beliefs.

                   There could be numerous factors, and it may not be possible to contemplate and mention all such situations that motivates a person to commit violent crime like homicide. While proof of motive of the crime may strengthen the prosecution’s case in proving the guilt of the offender, failure to prove motive is not fatal if the offence is otherwise proved through direct and incontrovertible evidence. At the same time, absence of any motive may benefit the accused under certain circumstances, for the ingredient of intention which constitutes the mens rea has also to be proved.”

94. In Subhash Aggarwal Vs. State of NCT of Delhi, 2025 SCC OnLine SC 808, the Apex Court has held that:

                   “24. Motive remains hidden in the inner recesses of the mind of the perpetrator, which cannot, oftener than ever, be ferreted out by the investigation agency. Though in a case of circumstantial evidence, the complete absence of motive would weigh in favour of the accused, it cannot be declared as a general proposition of universal application that, in the absence of motive, the entire inculpatory circumstances should be ignored and the accused acquitted.”

95. In this connection we deem it useful to refer to the observations of Apex Court in State of Himachal Pradesh Vs. Jeet Singh, 1999 SCC (Cri) 539:

                    “33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.”

96. Applying the aforesaid ratio to the facts of the present case and after considering the evidence on record it is clear that the prosecution through evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare has established the motive of the accused to commit the crime in question.

97. The medical evidence adduced by the prosecution by examining PW-8/Dr. Shashikant Dhobale shows that, the death of the deceased is homicidal one. The said evidence is already discussed. His evidence further shows that, the weapon of the offence was referred to him alongwith the query report on 19.09.2016. He examined the said weapon and given his opinion that the injury No.1 sustained by the deceased is possible by the weapon like knife. His evidence shows that, the weapon which was referred to him was a knife. He also described the said weapon when the weapon was received by him, which was in a sealed condition. He opined that, the death due to injury over neck is possible by the said weapon like knife and injury Nos. 2 to 5 in column No.17 with the internal damage possible by stone examined by him. His further evidence shows that, he also received the requisition from the Police to ascertain the time of death and he has given a time of death as 36 to 48 hours. His cross-examination shows that, the dead body when brought to him was in a middle stage of process of decomposition. The cross-examination further shows that, the decomposition of the dead body might have started around 18 to 24 hours before it was taken for postmortem examination. The cross-examination further confirms that, the first injury mentioned in column No.17 is possible by weapon like sword and knife. Thus, the evidence of PW-8/Dr. Shashikant Dhobale Medical Officer corroborates the ocular evidence of the prosecution that the death of the deceased is caused due to injury by knife, which was seized at the instance of the accused.

98. The evidence of Medical Officer PW-8/Dr. Shashikant Dhobale, evidence of PW-4/Bhushan Gajpure and evidence of PW-15/Revchand Singanjude further corroborated by the scientific evidence as CA report shows that the knife which was recovered at the instance of the accused was on the basis of the memorandum statement, is stained with blood group ‘A’. The said CA report is at Exh.5. Exh.6 CA report shows the blood group of the deceased is ‘A’, whereas Exh.7 shows the blood group of accused is ‘AB’.

99. The ocular evidence of PW-1/Babita Sahare, PW-2/Bhaskar Sahare and PW-3/Madan Pimpalkar shows that, the deceased is the son of PW-1/Babita Sahare and PW-2/Bhaskar Sahare. On the day of incident PW-2/Bhaskar Sahare returned home from work at 02.00 to 02.30 p.m., thereafter deceased took his mobile phone and went outside and not returned back. The said mobile phone was found on the next day in the courtyard of the Informant PW-1/Babita Sahare. As per the evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare, there were two sim cards in the said mobile phone bearing Nos. 9623515809 and 8698134726. The sim card No. 9623515809 is purchased in the name of Khemraj Dahelkar PW-10 who is the brother of the Informant, whereas sim card No. 8698134726 was purchased in the name of the mother of PW-2/Bhaskar Sahare. PW-13/Sachin Shinde serving as a Nodal Officer of Idea Cellular company shows that, the customer details form Exh.141 shows the name of PW-10/ Khemraj Dahelkar as a customer of the said number. As per the evidence of PW-14/Aditya Nifalkar the sim card No.8698134726 is in the name of Mirabai the mother of PW-2/Bhaskar Sahare.

100. The evidence of PW-13/Sachin Shinde and PW-14/Aditya Nifalkar shows that, on 16.09.2016 at about 11.42 a.m. the phone call was received from mobile No. 8698134726 to 9623515809. The evidence of PW-1/Babita Sahare and PW-2/Bhaskar Sahare shows that, when they found mobile handset, on the next day only one sim card of Idea Cellular having No. 9623515809 was in the handset and the sim card of Vodafone No. 8698134726 was missing. The evidence of PW-1/Babita Sahare, PW-2/Bhaskar Sahare and PW-3/Madan Pimpalkar shows that on 16.09.2016 when call was received from 8698134726 on 9623515809 the sim card was in the mobile handset of accused.

101. Their evidence shows that, the sister of the accused Laxmi handed over the call to Informant PW-1/Babita Sahare when she returned home from the Police Station. Through the said call, the caller has demanded ransom amount of Rs. 4 Lakhs. The said conversation was not only with PW-1/Babita Sahare but also with PW-3/Madan Pimpalkar. The evidence of Investigating Officer PW-15/Revchand Singanjude shows that, the sim card No. 8698134726 was found with child in conflict with law, whose involvement was also revealed during the investigation. The accused was also enquired by PW-1/Babita Sahare in presence of PW-3/Madan Pimpalkar who has stated that he has inserted the Idea Cellular card by removing the same from the handset of PW-1/Babita Sahare and inserted it in his mobile handset.

102. Thus, the evidence is consistent to show the circumstances that the accused has removed the sim card from the mobile handset of the Informant PW-1/Babita Sahare and inserted in his mobile handset. On 16.09.2016, phone call was received to demand the ransom amount disclosing that the deceased in their custody and they have to pay Rs. 4 Lakhs otherwise the deceased would be killed. At the time of receipt of the phone call the sim card No. 8698134726 was missing and subsequently it was found with the child in conflict with law. The fact of receipt of the phone call is further corroborated by PW-13/Sachin Shinde and PW-14/Aditya Nifalkar. Thus, the evidence that the deceased was kidnapped and ransom amount was demanded is also established by the prosecution.

103. Besides the above said evidence, the evidence of PW-3/Madan Pimpalkar states about panchnama which was drawn at the place where the mobile phone was found thrown in the morning of 16.09.2016. The arrest panchnama of the accused was also drawn in his presence. At the time of arrest panchnama, the injury was found on his finger for which no explanation is put forth by the accused. In presence of PW-3/Madan Pimpalkar the mobile handsets of the accused one is of Samsung company and another is of Intex company were also seized. The clothes of the accused are also seized by drawing seizure memo vide Exh. 37.

104. The evidence of PW-4/Bhushan Gajpure, besides the evidence of memorandum statement of the accused, discovery of the place of dead body and discovery of the place where the weapon was concealed, he stated about the panchnama which was drawn at the spot where the dead body was found. As per his evidence, the place of the spot where the dead body was found was a Zudpi Jungle and dead body was found in the bushes. He also observed pool of blood at the said place as well as blood stains on the rocks and the blood stains where the dead body was lying. The Investigating Officer has collected blood stained soil from the said place. The said soil was examined and analyzed during the chemical analysis. The soil collected from the spot was stained with blood group ‘A’ as per Exh.5, which is the blood group of deceased. In his presence inquest panchnama was also drawn. The evidence of PW-3/Madan Pimpalkar and PW-4/Bhushan Gajpure is further corroborated by PW-9/Vilas Awade who is the photographer and PW-15/Revchand Singanjude the Investigating Officer.

105. The evidence of PW-9/Vilas Awade that he obtained the photographs and said photographs were handed over to the Police alongwith the certificate under Section 65-B of the Indian Evidence Act. The evidence of PW-13/Sachin Shinde and PW-14/Aditya Nifalkar also shows that they have forwarded the CDR and SDR reports alongwith the certificate under Section 65-B of the Indian Evidence Act. These certificates are issued by the PW-9/Vilas Awade, PW-13/Sachin Shinde and PW-14/Aditya Nifalkar in view of the compliance required under Section 65-B of the Indian Evidence Act. The certificate under Section 65-B of the Indian Evidence Act is a pre-condition for the admission of an electronic evidence which appears to be complied with.

106. In view of the observation of the Hon’ble Apex Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors., (2020) 7 SCC 1, which states that, Section 65-B(1) opens with a non obstante clause, and makes it clear that any information that is contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document, and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. The deeming fiction is for the reason that “document” as defined by Section 3 of the Evidence Act does not include electronic records.

107. It is further observed that Section 65-B(2) then refers to the conditions that must be satisfied in respect of computer output. It is further observed that under sub-section (4), a certificate is to be produced that identifies the electronic record containing the statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of “relevant activities” - whichever is appropriate.

108. In the present case, the evidence of PW-9/Vilas Awade, PW-13/Sachin Shinde and PW-14/Aditya Nifalkar shows that, they have adduced the evidence by adducing the certificate by complying in view of Section 65-B(4) of the Indian Evidence Act.

109. At the time of arrest of the accused, injury was found on his finger which is mentioned in the arrest panchnama, the said circumstance was not explained by him. His additional 313 statement was recorded during hearing of the Appeal as incriminating evidence that blood stains of blood group ‘A’ of deceased was found on knife was not put to him which is not explained by him. Therefore, the prosecution case that while committing murder of deceased Bhardwaj, the said injury was caused to the accused can be accepted.

110. All the above discussed circumstantial evidence proving the involvement of the accused was put to him while recording his statement under Section 313 of Cr.P.C. He failed to give any explanation as to in which circumstances deceased Bhardwaj died homicidal death, how the place of concealment of dead body was within his knowledge, how the place where the weapon was concealed was within his knowledge and how the blood stains of blood group ‘A’ was found on the knife which recovered at his instance were not explained by him. These are the additional circumstances establishing the guilt of the accused. The conduct of the accused during the entire incident and subsequent thereto further confirms his culpability in the present crime.

111. Evidence on record clearly indicates that, the accused had planned the abduction and the murder of the deceased. The entire circumstances on which the prosecution placed reliance on complete chain of the circumstances established against the accused by the prosecution by leading cogent and reliable evidence.

112. For the aforesaid reasons we find that, there is overwhelming circumstantial evidence brought on record by the prosecution which irresistibly points to the guilt of the accused. All the circumstances from which inference of the guilt of the accused is drawn are established by the prosecution by leading cogent and reliable evidence. The circumstances against the accused if taken cumulatively form a chain so complete that there is no escape from a conclusion that it is only the accused who has committed the crime and none else. The circumstances proved on record are incapable of explanation of any other hypothesis than the guilt of the accused. Thus, the prosecution proves that the accused is the author of the crime. The Trial Court has rightly appreciated the evidence and rightly convicted the accused. Therefore, the Appeal filed by the accused bearing No. 178/2019 being devoid of merits and liable to be dismissed.

113. In the present case, the Informant PW-1/Babita Sahare has lost her son aged about 11 years in the said incident. Though Trial Court has awarded a compensation to the Informant out of the fine amount but the Trial Court has not considered the scheme under Section 357-A of Cr.P.C., Victim Compensation Scheme rehabilitating the Victim is as important as punishing the accused. Victim’s plight cannot be ignored even when a crime goes unpunished for want of adequate evidence. Here the prosecution has proved the case beyond reasonable doubt against the accused. Therefore, it is a fit case wherein the Trial Court at the conclusion of the Trial can refer or recommend the said matter for compensation to District Legal Services Authority. Considering the suffering of the Informant PW-1/Babita Sahare due to the death of her son, we recommend that the Secretary, High Court Legal Sub Committee shall ascertain the amount of compensation and shall decide the quantum of compensation to be awarded under the Scheme to the Informant PW-1/Babita Sahare.

114. Coming to the Appeal of the State which is filed for Capital punishment. As already observed earlier, the involvement of the accused is established. When the accused is found guilty and the question of gravity of the offence and award of adequate sentence comes up for consideration the appropriate punishment requires to be awarded. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished.

115. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each crime of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case. The theory behind awarding a sentence is that wrongdoer is to be deterred from committing a similar crime. Sometimes, the sentence is awarded looking to the desirability of keeping the accused out of circulation i.e the preventive theory and sometimes the reformatory theory or the retributive theory is to be applied.

116. Learned APP submitted that, looking to the facts of the case, wherein 11 years innocent boy was caused to death and the manner in which his death was caused without showing any remorse to the small child calls for the death penalty.

117. Per contra, learned Counsel for the accused submitted that, it is not the rarest of rare case, and therefore, the Appeal of the State asking for Capital punishment deserves to be quashed and set aside.

118. In case of Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470, the guidelines which are to be kept in mind when considering the question whether the case belongs to the rarest of rare category for awarding death sentence. The said guidelines are as follows:

                   “the following questions may be asked and answered as to the test to be determined the rarest of rare case in which the death sentence can be inflicted.

                   (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

                   (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”

119. The following guidelines emerge from the decision of Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684, which are as under:

                   “(i) The extreme penalty of death need not be inflicted except in grievous case of extreme culpability.

                   (ii) Before opting for death penalty the circumstances of the “offender” also required to be taken into consideration along with the circumstances of the “crime”.

                   (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

                   (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

120. In Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, (2009) 6 SCC 498, wherein the expression ‘rarest of rare case’ defined that rarest case means rarest even in the rare. The expression and the choice of words means that punishment by death is extremely narrow and confined rare exception.

121. In the case of Swamy Sharaddananda (2) Vs. State of Karnataka, (2008) 13 SCC 767, the Hon’ble Apex Court emphasized the importance of determining whether the accused notwithstanding their crime, can be reformed, rehabilitated and reintegrated and that the activity of obtaining this information is essential and must be undertaken. In Swamy Sharaddananda (2) cited supra, the Apex Court has considered the issue of appropriate sentence.

122. In the case of Vikas Chaudhary Vs. The State of Delhi, MANU/SC/0429/2023, it is held that the appropriateness of imposing a punishment in serious crimes, which carried as sentencing option, the death penalty (apart from life sentence), was considered by this Court in Sriharan. The majority decision after considering the previous decisions was held that the ratio in Swamy Sharaddananda (2) cited supra was correct.

123. Thus, the measure of the punishment in a given case must depend upon the nature of the crime, the conduct of the criminal and the defenseless and unprotected state of the Victim. Imposition of an inappropriate punishment is the manner in which the courts response to the societies cry for the justice against the criminals. Justice demands that court should impose punishment fitting to the crime. The court must not only keep in view of the rights of the criminal but also the rights of the Victim of crime and the society at large while considering imposition of appropriate punishment. Showing undue sympathy and imposing inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law and the society would not long endure under serious threats. If the court could not protect the Victims the Victims would then loose the faith in the judicial system, therefore awarding a lesser punishment when the offence is proved would affront to the society. Therefore, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed and the circumstances of the offender.

124. The object of sentencing should be to see that the crime does not go unpunished and the Victim of the crime as also the society have the satisfaction that justice have been done to it.

125. In the present case, the aggravating circumstances are as under:

                   (i) The Victim boy was helpless innocent child of 11 years when accused brutally and inhumanly caused his death in a violent manner.

                   (ii) The act was committed involving inhuman treatment.

                   (iii) The murder is for a motive.

                   (iv) There was no enmity with the small child.

                   (v) No provocation was given by the Victim.

                   (vi) The crime is committed in such a manner that the injuries are caused on a vital part of the body by piercing the knife in the neck and by causing the injuries by stone, shocks not only the judicial conscience but even the conscience of the society.

126. As far as mitigating circumstances are concerned though we have searched minutely we did not find any mitigating circumstance except the age of the accused. The age of the accused at the time of the incident was 19 years. It is also to be kept in mind that, the Hon’ble Supreme Court in many decisions has stated that the age of the accused by itself cannot be the only factor which can be taken into consideration while considering the overall facts of the case. It is not the case of the accused that anyone is dependent upon him. Thus, considering the aggravating and mitigating circumstances we find that there are only aggravating circumstances and no mitigating circumstances. According to us, the age of the accused would ceased to be a mitigating circumstance if the manner in which the offence is committed is taken into consideration, the age of the Victim and total brutality while committing the said crime, the accused has not shown any remorse to either to the incident or to the Victim. Considering the age of the accused, we have given thoughtful consideration to the aspect whether the punishment imposed of a life imprisonment is an adequate punishment or considering the act of the accused, the punishment in the terms of the life imprisonment for the remainder of his life, whether can be an alternative to the death penalty.

127. We have called the accused to record his statement under Section 313 of Cr.P.C. We had an occasion to interact with him but there was no repentance at all as can be seen from the evidence of record as well as from the demeanour of the accused. We could not see any possibility that the accused may reform by ascertaining his conduct, the accused has not shown any remorse, regret or repentance of having committed an offence. Therefore, it cannot be said that he can be the person who can be reformed.

128. Considering the fact that, the accused who is the neighbour in fact owes the duty to protect the child, the deceased went alongwith the accused by trusting him but the accused has betrayed the trust of the minor child, therefore we feel that he is not entitled for any sort of solace.

129. As already observed that, the case is not covered under the rarest of rare case but considering an alternative option in cases where the accused is convicted for serious and grave crimes, which carried with it the option of Capital sentence. This aspect is considered by the Hon’ble Apex Court in the case of Vikas Chaudhary cited supra and observed that “realizing that a life sentence per se can lead to early release of the accused upon their undergoing the minimum sentence prescribed under Section 433A, and highlighting that the asymmetry in state Rules with respect to minimum incarceration in different kinds of life sentences, this Court decided to retain to itself (and the High Courts) the option of imposing what Sriharan termed as “special” or “fixed terms sentences”. This was seen as serving the following purposes:

                   “(a) As a feasible alternative in capital cases where the Court was of the opinion that death sentence is inappropriate, and :

                   (b) That the Court was of the opinion there were elements in the crime and or the conduct of the criminal which warranted imposition of a mandatory sentence beyond a minimum of 14 years prescribed by the Code of Criminal Procedure.

                   (c) Where the court felt, independently, that the serious nature of the crime and the manner of its commission warranted a special sentence, whereby the state’s discretion in releasing the offender, should be curtailed so that the convict is not let out before undergoing a specified number of years, of incarceration.”

130. Thus, in view of the decision of the Hon’ble Apex Court in Vikas Chaudhary cited supra, the trial courts, are foreclosed from imposing such a modified or specific term sentence, or life imprisonment for the remainder of the convict’s life, as an alternative to death penalty but this Court has option of imposing fixed term sentences when the Capital punishment is inappropriate but considering the elements in the crime and imposition of sentence beyond a minimum 14 years is required in view of the serious nature of the crime and the manner of its commission.

131. The imperative to conduct evaluation of mitigating circumstances and aggravating circumstances by considering the manner in which the alleged crime is committed. The exercise of awarding appropriate punishment is imperative when the death sentence cannot be imposed. If ultimately death sentence cannot be imposed it is open to this Court by evaluating the evidence with full materials about the convict to award the fixed term sentence.

132. In view of the above discussion, the present case wherein the accused is involved in kidnapping a minor boy of 11 years and committing his murder by causing him injuries by weapon like knife, the nature of injuries on the person of the deceased are incised wound of length 14 x 4 cm, trachea deep cut over anterior aspect of neck horizontally extending from 4 cm below left mastoid running anteriorly just below thyroid cartilage cut 2 cm below right angle of mandible underlying tissue, muscles are clean cut, trachea was cut horizontally surrounding vessels, nerves are clean cut and several lacerated wounds caused by means of stone shows the intention of the accused. Death of the deceased is due to injury over neck and head injury. The description of weapon knife sharp cutting of 31 cm with blade of 20 cm and 3.5 cm wide and 0.1 cm thick, admittedly is not used in kitchen. The conspiracy revealed from the prosecution witnesses. The circumstances proved against the accused are last seen with the deceased, recovery of the dead body at the instance of the accused, recovery of weapon at the instance of the accused. Thus, numerous factors sufficiently shows that the act was preplanned by hatching the conspiracy. The circumstances proves the motive of the crime. Thus, overwhelming circumstantial evidence brought on record by the prosecution pointing towards the guilt of the accused. Though it is not the rarest of rare case but the act of the accused coming under the special category of sentence where the Court could specify that the life sentence would exceed 14 years and would be beyond application for remission.

133. On taking into consideration various factors, the nature of the crime, the conduct of the criminal and relevancy in the light of administration of criminal justice, it is a fit case wherein something uncommon about the crime which renders imprisonment of life for 14 years is inadequate and calls for more deterrent punishment.

134. As already observed that, the accused who was 19 years old at the time of incident, we have also considered whether he was having any remorse or any repentance regarding the incident, we have called the accused before us and had an opportunity to see the demeanour of the accused. We observed that, he has no repentance or remorse to the incident. Considering the principle of proportion between the crime and punishment is a principle that serves as the foundation of every criminal sentence, it is a principle of proportionality in prescribing liability according to culpability of each kind of criminal conduct. It is a fit case wherein the punishment can be modified as life imprisonment till remainder of his life. In view of that, the Appeal of the State deserves to be allowed partly.

135. In light of the above discussion, we proceed to pass the following order.

ORDER

i. Criminal Appeal 178/2019 is dismissed.

ii. Criminal Appeal No. 176/2019 is partly allowed.

iii. The judgment and order of sentence holding accused guilty of the offence punishable under Sections 364-A and 302 read with Section 34 of the Indian Penal Code, is maintained.

iv. The sentence is modified, as the accused is convicted under Section 235(2) of Cr.P.C. of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life till remainder of his life and to pay a fine of Rs. 10,000/- (Rs. Ten Thousand Only) and in default to suffer further rigorous imprisonment for three years.

v. The Secretary, High Court Legal Services Sub Committee, Nagpur shall decide the quantum of compensation to be awarded to the Informant PW-1/Babita Sahare under Section 357-A of Cr.P.C.

vi. Fees of Appointed Counsel be quantified as per rules.

vii. R & P be sent to the Trial Court.

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