The State of Maharashtra, through Police Station Officer, Lakadganj Police Station, Nagpur Vs Rajesh s/o Dhannalal Daware, R/o Plot No. 5, Vanjari Layout, Kalamna, Nagpur and another

B.R. Gavai, J. - Since the learned Sessions Judge, Nagpur by judgment and order dated 4.2.2016 in Sessions Trial No. 488/14 has awarded death penalty to the accused Nos. 1 and 2, the reference has been made to this Court for confirmation in Criminal Confirmation Case No. 1/16.

2. Both the accused/appellants have also preferred appeals being aggrieved by the judgment and order of conviction and sentence dated 4.2.2016. Though both the appellants are condemned persons, for the sake of convenience, hereinafter we will be referring to them as accused.

3. The prosecution case in nutshell as could be gathered from the material placed on record is thus :-

4. It is the prosecution case that the accused No.1 Rajesh was employed since January, 2014 in the "Chandak Dental Clinic". He was assigned duty at the reception counter and was working as a Computer Operator-cum-Receptionist. His duty included updating the details of the patients in the computer and also taking their entries in the register maintained in the clinic. It was also his duty to send the waiting patients in sequence in chamber of the doctors. He was also supposed to collect the fees of dental treatment from the patients as per the directions of the doctor. He was also assigned the duty to give suitable appointments to the patients for dental check up. In order to maintain discipline in the dental clinic, a red colour T shirt of Status-quo company was provided to the employees as a dress code. The employees were also instructed to use blue colour jean pants. Since the accused No.1 Rajesh was employed in the clinic of Dr. Chandak, he was also given red colour T shirt of Status-quo company by PW.1 Dr. Chandak. It was the practise of PW.1 Dr. Chandak to take back the red T shirts whenever an employee left the job. It is the prosecution case that the accused Rajesh attended the work from January, 2014 till first week of April, 2014. However, thereafter he was irregular. He remained absent in the month of April 2014 under the pretext of examination. The salary paid to accused No.1 Rajesh was about Rs.3000/- per month.

5. It is also the prosecution case that the employees in the dental clinic were acquainted with the children of Dr. Chandak as they used to visit the clinic. Whenever victim Yug used to come to clinic, he used to mix up with the staff members. He used to play games on the computer of the clinic kept at the respective counter. It is the prosecution case that in the month of July, 2014 when deceased Yug had visited the clinic of his father in the evening hours, after meeting his parents he started playing games on the computer which was on the table of the accused no.1 at reception counter, wherein accused was working. He was handling the hydraulic chair of the accused roughly. As such, the accused Rajesh became furious and gave one slap to the victim Yug. On the deceased Yug informing about the same to his parents, PW.1 Dr. Chandak gave understanding to the accused and asked him to behave in a proper manner with his son. PW.1 Dr. Chandak had also received complaints from the patients that the accused used to charge Rs.100/- more than what was the fees determined by the doctors. It is the prosecution case that one Naresh Machale PW.6 had made complaint about the same to Dr. Chandak.

6. It is further the prosecution case that on the day of the incident, i.e. on 1.9.2014 the sons of first informant Dr. Chandak, namely, Dhruva and Yug left the house for attending the school in the morning. PW.1 Dr. Chandak and his wife came to the clinic at around 11 a.m. and started their routine work. At around 4 p.m. the driver of Dr. Chandak, namely, Raju Tote had gone to the residence of PW.1 Dr. Chandak, so as to collect Yug and take him for the dance class. However, Yug was not found at the residence. Raju Tote received the information from watchman PW.31 Arun Meshram that victim Yug had gone on the scooty of one staff member of the clinic. The driver, therefore, immediately contacted Dr. Premal � mother of Yug and informed her that Yug had left the house for clinic. As such, PW.1 Dr. Chandak immediately rushed to his house to take stock of the situation. After Dr. Chandak reached house, PW.31 Arun Meshram informed him that minor Yug had gone on a scooty accompanied with one young boy of 20 to 22 years wearing red colour T shirt of half sleeves. As such, Dr. Chandak and his wife started making search of Yug. They first searched him in the neighbourhood area. However, they could not trace Yug. The residents of area also on coming to know about the same reached the spot. Accordingly, PW.1 Dr. Chandak, left with no other alternative, went to Lakadganj Police Station and lodged a report regarding kidnapping of his son Yug by an unknown person wearing red colour T shirt of half sleeves. On the basis of the oral report of PW.1 Dr. Chandak which is below Exh. 24, a printed FIR came to be registered below Exh. 25 and a crime came to be registered vide Crime No. 287/14 for the offence punishable under Section 363 of the Indian Penal Code. On the crime being registered, PW.50 Satyanarayan Kisanlal Jaiswal issued a search report to all the Police Stations and police control room in the Nagpur city, therein giving description of the victim along with his photograph. PW.25 Nilesh Gosavi � PSI on receipt of the information went to the spot from where minor victim Yug was abducted and drew a spot panchnama. In the meanwhile, PW.1 Dr. Chandak received the call on his cell phone demanding ransom. It was also revealed that there were two culprits who whisked away the minor Yug on scooty. PW.1 Dr. Chandak recollected that accused Rajesh did not attend the duty since second week of August, 2014 and suspected that accused No.1 Rajesh may be involved in the crime.

7. As such, Lakadganj Police Station called Rajesh Daware for investigation. During the interrogation accused No.1 Rajesh confessed about the crime and informed that he accompanied with his accomplice accused no.2 Arvind Singh had kidnapped and abducted Yug and committed his murder. The Investigating Officer also apprehended the accused Arvind Singh. Cell phone and SIM cards were recovered from the custody of both the accused under panchnama. On the memorandum under section 27 of the Indian Evidence Act, the accused expressed his willingness to show the scene of the crime and the spot where the dead body of the deceased Yug was buried. The accused led the police and the panchas to the spot located in the rivulet within the vicinity of village on Patansawangi-Lonkhairi road. The dead body of the deceased Yug was found concealed below the bridge. The body was found covered with sand particles and a boulder. On the body being exhumed from the sand particles and the boulder, Dr. Chandak was called to identify the body. He identified the body to be of his son. The dead body was referred to the Government Medical College and Hospital for autopsy. The post-mortem was conducted and it was opined that the victim had breathed his last due to smothering. According to the medical experts, the victim Yug might have died between a period of 36 to 48 hours prior to the conducting of the postmortem.

8. During investigation, it was also revealed that accused No. 1 Rajesh had attempted to involve his another friend Sandip Katre in the crime but he refused to get involved. It was revealed during investigation that the accused Arvind Singh wearing red T shirt and the accused No.1 wearing the almond colour shirt had come together on the spot of kidnapping. The accused no.1 stood at a distance after the deceased Yug came from the school. The unsuspecting child thinking accused no.2 to be an employee of his father''s clinic accompanied him at some distance. The accused no. 1 also joined and vanished from the spot. During investigation, it was also revealed that while committing the crime, the accused had purchased the fuel from petrol pump known as ''Sundar Auto Centre'' of Bharat Petroleum located at Koradi road, Nagpur. The Investigating Officer visited the concerned petrol pump and recovered the footage of CCTV camera installed in the premises of the petrol pump. On the basis of the memorandum of the accused no.1 under Section 27 of the Indian Evidence Act, one chappal, almond colour shirt, jean pant, handkerchief, ATM card, motor bike and scooty used in the commission of the crime came to be recovered. Similarly, on the basis of two memorandums of accused no.2 under Section 27 of the Indian Evidence Act, the Investigating Officer recovered the sky blue T shirt of school uniform of deceased Yug and also the clothes of the accused and Bali (ear ring) which was in the ears of the deceased Yug when he was kidnapped.

9. During investigation, it was also revealed that Ankush accused no.3, aged 17 years, younger brother of accused No.1 Rajesh was also involved in the crime. Therefore, he was apprehended for the purpose of investigation. The mobile phone in the possession of the said Ankush was seized in the presence of PW.32 Vicky Shah vide panchnama Exh. 139. The said mobile was having SIM cards bearing Nos. 7745855431, 8407954414 and 7798173472. The IEMI numbers of the said mobile phone were 911256306126117 and 911256306126125.

10. During the investigation, test identification parade of the accused was conducted in which witnesses identified the accused. After receipt of the other material including the reports of the Chemical Analyser, etc. the charge-sheet came to be filed in the Court of Judicial Magistrate, First Class, Court No.3, Nagpur against both the accused nos. 1 and 2. A separate charge-sheet came to be filed against juvenile-in-conflict with law before the Juvenile Justice Board, Nagpur.

11. After receipt of the charge-sheet, since the case was exclusively triable by the Sessions Court, the same came to be transmitted to the Court of Sessions, Nagpur on 28.11.2014. The charge came to be framed below Exh. 11 for the offence punishable under Section 120-B, Section 364-A read with Section 34, Section 302 read with Section 34, Section 201 read with Section 34 of the Indian Penal Code. The accused pleaded ''not guilty'' and claimed to be tried.

12. In the course of the trial, the prosecution examined about 50 witnesses and exhibited voluminous documentary evidence. The defence also examined six witnesses as defence witnesses. At the conclusion of the trial, the learned trial Judge convicted both the accused for the offence punishable under Section 364-A read with Section 34 of the Indian Penal Code and sentenced to suffer death penalty. The learned trial Judge also convicted them for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer death penalty. The learned trial Judge directed the accused to be hanged by the neck till they are dead as provided under Section 354(5) of the Criminal Procedure Code. The learned trial Judge also convicted both the accused for the offence punishable under Section 120-B of the Indian Penal Code and sentenced them to suffer imprisonment for life and to pay a fine of Rs.10,000/- and in default to suffer further R.I. for three years. The learned trial Judge also convicted both the accused for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and sentenced them to suffer R.I. for seven years and to pay a fine of Rs.5,000/- and in default to suffer further R.I. for one year.

13. Being aggrieved by the aforesaid order of conviction and sentence, both the appellants have preferred Criminal Appeal No. 140/16 and Criminal Appeal No. 103/16. Since a penalty of death sentence is imposed, a reference is made to this Court for confirmation vide Criminal Confirmation Case No. 1/16.

14. We have heard Smt. B.H. Dangre, learned Public Prosecutor for the State and Shri Mir Nagman Ali, learned Counsel for the accused No.1 Rajesh Daware in Criminal Appeal No. 140/16 and Shri C.R. Thakur, learned Counsel for the accused No.2 Arvind in Criminal Appeal No. 103/16.

15. Smt. B.H. Dangre, learned Public Prosecutor for the State, submits that in the present case the prosecution has proved all the incriminating circumstances beyond reasonable doubt. She further submits that the prosecution has also established a chain of events which is so interwoven to each other that it leads to no other conclusion than the guilt of the accused. The learned Public Prosecutor submits that the prosecution has been able to prove that every hypothesis except the guilt of the accused is ruled out. She submits that from the evidence of PW.31 Arun Meshram, PW.2 Rajan Tiwari, PW.17 Biharilal Sadhuram Chhabriya, it is clear that the accused had abducted the deceased Yug from the spot near his residence. She further submits that from the evidence of PW.23 Rupali Kansare, it would reveal that the accused along with the deceased had come to the house of accused No.1 Rajesh and changed the vehicle. She further states that from the CCTV footage, it will be clear that the accused had come to the petrol pump on Koradi road for refueling the vehicle. She further submits that the evidence of PW.9 Divya Chandel, PW.11 Namdeo Dhalde and PW.10 Shriram Khadatkar would reveal that the deceased was seen in the company of the accused in the evening of 1st September, 2014. She submits that from the evidence of PW.28 Mahesh, it will be clear that the body of the deceased was discovered at the instance of the accused No.1 Rajesh from the spot which was exclusively within the knowledge of the accused no.1. She submits that from the medical evidence, it would reveal that the death of the deceased had occurred between 36 to 48 hours prior to the conducting of the post-mortem. It is submitted that the post-mortem is conducted at 12 noon on 3.9.2014. As such, the said period would come between 12 noon of 1st September, 2014 to 12 midnight of 1st and 2nd September, 2014. It is, therefore, submitted that the time gap between the deceased and the accused seen together and the death of the deceased occurring, is so narrow that it leads to no other conclusion than the guilt of the accused.

16. The learned Public Prosecutor further submits that the motive of the accused and the prior conspiracy is also established from the evidence of PW.19 Sonam Meshram, PW.8 Sandip Katre and PW.7 Sushila Bhoyar. It is further submitted that the prosecution has also established that the accused had made calls to the PW.1 Dr. Chandak for ransom. It is submitted that since the CCTV is an evidence pertaining to the information contained in electric record, it is required to be proved under the provisions of Section 65-B of the Indian Evidence Act. It is submitted that, from the evidence of PW.35 Shrikant Sharma, the Manager of the petrol pump, PW.30 Hitesh Rathod and PW.38 Ajay Salunke, it will be clear that all the conditions as required under Section 65-B are satisfied. She further submits that the C.A. report and the DNA analysis, so also the Call Detail Reports, which are proved beyond reasonable doubt also establish the guilt of the accused/appellants. The learned Public Prosecutor, therefore, submits that no interference is warranted in the present case and the appeal deserves to be dismissed and the sentence of death needs to be confirmed.

17. Shri Mir Nagman Ali, the learned Counsel appearing on behalf of the appellant Rajesh Daware, on the contrary submits that the prosecution case is full of lacunae. The very authenticity of the FIR is in question. He submits that all the eye-witnesses are planted witnesses. It is submitted that as a matter of fact, none of the eyewitnesses had seen the appellant and they are falsely deposing at the behest of the prosecution. The learned Counsel submits that PW.28 Mahesh, who is panch on discovery of the dead body, is a doctor by profession and, therefore, his evidence cannot be said to be reliable, inasmuch as the first informant is also a doctor. The learned Counsel submits that the panchnamas would reveal that all the panchas are planted witnesses and, therefore, no reliance could be placed on the said panchnamas. The learned Counsel further submits that the recovery of the mobiles is also a farcical. It is submitted that the ownership of the mobile numbers of the accused is not proved. The learned Counsel further submits that from the location of the mobile of Investigating Officer as has been brought on record by DW.5 Ravi, it will be clear that at the time of panchnamas, the Investigating Officer was not at the places where panchnamas were executed and, therefore, all these recoveries are farcical. It is further submitted that the log book of the vehicle alleged to be used in the discovery and recovery pursuant to memorandum under Section 27, does not tally with the timings of said discoveries and recoveries. The learned Counsel further submits that the evidence of PW. 45 Mohan Tikale, Executive Magistrate would reveal that the test identification parades were not done in a proper manner. The learned Counsel further submits that all the witnesses have identified the accused at serial No.4 in the row. It is, therefore, submitted that it appears that the witnesses were informed about the position of the accused in the row which made easy for them to identify the witnesses. It is submitted that the photographs of the accused were already published in the newspapers and, therefore, the identification parades are nothing else than the farce. It is further submitted that the electronic evidence regarding the CCTV footage at the petrol pump is not established in view of provisions of Section 65-B of the Indian Evidence Act. It is submitted that PW.35 Shrikant Sharma, who was the Manager of the petrol pump was not conversant with the computer and CCTV and as such, his evidence would not be of any assistance. It is submitted that if his evidence goes, then the evidence of subsequent expert witnesses will have to be discarded. It is, therefore, submitted that the prosecution has failed to prove the incriminating circumstances and in no case it has been successful in establishing the chain of circumstances which leads to no other conclusion than the guilt of the accused.

18. Shri C.R. Thakur, the learned Counsel appearing on behalf of the appellant/accused No.2 Arvind Singh, has almost advanced the similar arguments. He submits that the evidence of PW.23 Rupali and PW.11 Namdeo cannot be read into evidence, inasmuch as they have not been subjected to test identification parade. He further submits that the perusal of the evidence of witnesses on the last seen theory would reveal that they had no occasion to have a look at the accused and the deceased and as such, their evidence is of no assistance. He further submits that the alleged recoveries at the instance of the accused are also farcical and planted. He submits that if the evidence of the defence witnesses is to be believed, it would reveal that there was no recovery and as a matter of fact, the police had planted the material. It is further submitted that the photographs of the accused while in custody would reveal that the accused no.1 was already wearing red T shirt and as such, the alleged recovery of red T shirt is farcical. In the totality of the circumstances, he submits that the prosecution case is fabricated and, therefore, the appeals deserve to be allowed and the appellants acquitted.

19. Voluminous citations have been cited by the learned Counsel for both the parties. However, we do not wish to reproduce all of them and make the judgment bulky. Needless to state that we will be referring to the relevant judgments of Their Lordships of the Apex Court, while we consider each of the points.

20. With the assistance of the learned Counsel appearing for both the parties, we have scrutinised the entire material on record and have also heard the elaborate submissions made on behalf of the parties.

21. The present case is a case which is based on circumstantial evidence. The law on the cases based on circumstantial evidence is very well crystallized by Their Lordships of the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622. It will be appropriate to refer to the following observations of Their Lordships in paragraph nos. 152 and 153 of the judgment, which read as under :-

It could thus be seen that Their Lordships have held that before convicting an accused in a case based on circumstantial evidence, it will have to be established that the circumstances from which the conclusion of guilt is to be drawn are fully established. It is further necessary that the facts so established should be consistent, only with the hypothesis of the guilt of the accused. It should be established that the facts established should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of conclusive nature and tendency. It is necessary that the facts established should exclude every possible hypothesis, except the one to be proved, i.e. the guilt of the accused. It has further been held that there must be a chain of evidence so complete as not to leave any reasonable doubt for the conclusion consistent with the innocence of the accused and must show that in all human probability the acts must have been done by the accused.

22. In the light of these guiding principles, we will have to consider the prosecution case. From the material placed on record, it appears that the prosecution mainly relies on the following circumstances :-

23. We will deal with each of the circumstances independently. Since the circumstance of the death of the deceased being homicidal is not disputed by the defence, we need not scrutinise the evidence of the medical expert in that regard.

[i] The theory of the accused persons and the deceased last seen together :

24. The first of the witnesses, who had seen the deceased in the company of the accused persons is PW.31 Arun Meshram. His evidence is at Exh. 131. He states in his evidence that he was employed as a Watchman in Tiwari Security Company. Since his appointment, he was deputed as Security Guard at Guru-Vandana Apartment. His duty hours were from 9 a.m. to 9 p.m. in the evening. He states that he was acquainted with Dr. Chandak and his family. There were four members in the family of Dr. Chandak including his wife and two minor sons, namely, Dhruva and Yug. He further states that employees of Dr. Chandak used to wear red colour T shirt as a uniform of his clinic. He further states that the employees used to visit frequently at the residence of Dr. Chandak. He further states that he used to sit in front of entrance gate of compound wall of Guru Vandana Apartment to discharge his duties as a watchman. On 1.9.2014 in the noon hours at around 4 p.m. when he was doing his duty in front of the entrance gate, one boy aged 20-22 years old arrived on purple colour scooty bike. There was red colour T shirt on his person. He asked him as to whether Yug son of Dr. Chandak had returned to home. The boy parked his vehicle near the footpath. He asked him about Yug from the footpath only and at that time there was a scarf wrapped on his mouth. He told him to visit to the house of Dr. Chandak and get it verified. However, he did not go upstairs and remained stranded at the footpath. Meanwhile, another resident of the building Shri Chhabriya returned to his home for lunch. After sometime, the boy Yug son of Dr. Chandak returned from the school. The youngster standing on the footpath gave a call to the boy Yug. There was school uniform of sky-blue colour T shirt and blue colour half pant on the person of boy Yug. There was some conversation between Yug and that youngster who was wearing red colour T-shirt. Thereafter the boy came to him and kept his school bag on his chair and disclosed that he was going to the clinic of his father. Yug told the witness to carry the school bag to his home. The witness disclosed him that it will take 10-15 minutes time to carry school bag at his home. The witness further states that the minor boy Yug went near that youngster of purple colour scooty bike. Yug sat on the scooty bike of that youngster and snatched the scarf which was wrapped on the mouth of that youngster. The witness states that at that time he had seen the face of youngster. Thereafter, both of them went away towards Chhapru Nagar square. He further states that there was a wooden shop "Tall" of one Tiwari located in the opposite direction of Guru Vandana Apartment. He further states that at about 4.15 he had been to the house of Dr. Chandak to give the school bag of boy Yug at his home. He further states that at that time maid servant by name Sushma was present in the house and she made enquiry about whereabouts of Yug and he disclosed to her that Yug had gone along with one youngester employee of clinic of Dr. Chandak. He had also disclosed to the maid-servant Sushma that the boy Yug had gone to the clinic as his parents had called him to the clinic. He further states that after sometime the driver of Dr. Chandak came to the building. The driver made enquiry with him about the whereabouts of boy Yug and he disclosed to him that Yug had gone with the employee of his clinic. Thereafter, he contacted Dr. Chandak on his phone. After call, Dr. Chandak returned from his clinic. Mrs. Chandak also rushed to the apartment. He narrated the incident to Dr. Chandak and his wife. The maid-servant Sushma and one Smt. Manju, the neighbour of Dr. Chandak also came downstairs in the courtyard. The witness has identified both the accused in the identification parade which were held under panchnamas below Exh. 132 and 133. The witness has also identified the T-shirt muddemal Article No.2 which was seen on the person of the accused no.2 at the time of the incident. He has also identified the uniform of victim Yug Article Nos. 1 and 9. An attack is sought to be made on the evidence of this witness that there are certain omissions in his evidence. However, the omissions are not put to the Investigating Officer. It is further to be noted that the said witness is a natural witness since he is a watchman of the building. Further, his evidence is corroborated by the First Information Report which is lodged immediately after the incident. We, therefore, find that from the evidence of this witness it could safely be concluded that at around 4.15 p.m. the accused no.2 had gone along with the deceased on a scooty. It could safely be concluded that after Yug came from the school, the accused no.2 had conversation with the deceased and the deceased after keeping the school bag with PW.31 Arun Meshram went along with accused no.2 at around 4.15 p.m.

25. The next witness on last seen theory is PW.2 Rajan Tiwari. His evidence is at Exh. 32. He states in his evidence that on 1.9.2014 at around 4 p.m. he was sitting on the chair in front of his shop. He had seen that two unknown boys came from the side of Chhapru Nagar on purple colour scooty and they stopped in front of his shop. He had seen that the boy who was driving the scooty alighted in front of his shop and the boy who was pillion rider started proceeding further with the vehicle. However, meanwhile the boy who was standing in front of his shop hurled the abuses to the boy who went forward with bike. He uttered the words in abusive manner that "Maderchod, Sale Sidha Nahi Rong Side Ja, Jaldi Hai". (He hurled the abuses that "Maderchod and Sale" and asked him not to go straightway but go by wrong side as there was urgency). He states that he overheard the abuses uttered by the boy to the scooty bike rider. He states that thereafter he was drinking tea and that time he saw the boy who was in front of the shop in a frightened condition. He had also seen that after hurling abuses the scooty bike rider took U-turn and went by wrong side of the road towards the side of Guru Vandana Apartment. He further states that when he was taking the tea at the stall near Mahindra Showroom, at that time he saw that the boy wearing the red colour half T shirt returned on his scooty bike. He had brought one boy of near about 8 years old with him. There was a school uniform of sky-blue colour T-shirt on the person of that minor boy. He had also seen that scooty bike rider came from the Guru Vandana Apartment side by the same road which he had gone earlier from wrong side. He states that he had also witnessed the boy who was stranding in front of his shop, went running towards the scooty bike and sat on the backside seat behind the minor boy. The witness further states that the boy who sat as an pillion rider on the scooty was wearing the shirt of almond colour. He states that thereafter the vehicle scooty went towards the Dana Ganja area. He returned to his shop after enjoying tea. The witness states that at around 7 to 7.30 p.m. on the same day he saw residents in the area assembled in front of the building of Guru Vandana Apartment. He had also gone there to take stock of the situation. He came to know that the boy was kidnapped from the building and he was the son of Dr. Chandak. He further states that he also learnt that the kidnapper was wearing red colour T shirt. He further states that, he had, therefore, recollected the entire episode which he had witnessed. He states that the father of kidnapped boy had shown the photograph of the boy. After seeing the photograph, he realised that the photograph was of the same boy who had been seen by him along with the two boys who were riding the scooty. He met Dr. Chandak and disclosed him about the event which he had seen in the noon hours in front of the shop. He has identified the accused to be the same boys who had been seen by him while sitting in a shop and enjoying tea. After seeing the photograph, he had also identified the boy who was sitting on the scooty between the two pillion riders as the boy who was kidnapped. This witness has also identified the accused in the test identification parade which is conducted in the panchnama below Exh. 34. A suggestion given to him that both the accused covered their faces by scarf at the time of the incident is denied by him. He has stated that both of them used the scarf for covering their face later on. The evidence of this witness is sought to be attacked on the ground that he is also a planted witness. However, nothing is brought on record to show that he has inimical terms with the accused or any special reason as to why he should depose falsely against the accused persons. We are, therefore, of the view that his evidence also establishes that on the day of the incident at around 4 p.m. both the accused had come on the spot, the accused no.1 had alighted in front of his shop, the accused no.2 went to the other side of the road, after sometime the accused no.2 and the deceased came on a scooty, the accused no.1 joined them and went towards the Danaganja area.

26. The next witness in this line is PW.17 Biharilal Sadhuram Chhabriya. His evidence is at Exh. 67. This witness states that he runs a grocery shop in the name and style of "M/s. Biharilal Sadhuram Chhabariya". He states that he used to go to shop at around 12 hours in the noon and return at around 4 p.m. for lunch. He states that he was acquainted with Dr. Chandak. He further testifies that the watchman also used to sit at the entrance of the gate of the building. He further states that as usual on 1.9.2014 at 4 p.m. he returned to home for lunch on his Activa scooter. He states that on the day of the incident since Ganesh festival was going on and a carpet was laid upto entrance gate, he had parked his four-wheeler on the road outside the campus. When he returned to his home, he saw one boy standing behind his Honda City car parked in front of the building of Guru Vandana Apartment on the road. He states that he had suspicion that the boy would cause mischief to his vehicle. He states that the boy was sitting on purple colour scooty behind his car. He further states that there was red colour T shirt and black colour jean pant on his person. He states the age of boy to be 20-22 years old. He parked his Activa at the backside of his car abutting the purple colour scooty of that suspected boy. He saw that the boy took out the white colour handkerchief from his pant pocket and tied it on his mouth. Thereafter he went towards his residence for lunch. After lunch he came back after 10-15 minutes. At that time, the boy and the vehicle were not present. He states that at around 5.15 p.m. he received the telephone call from his wife who informed him that Yug was kidnapped by person wearing red colour T shirt having purple scooty. Thereafter he rushed home to take stock of the situation. At about 7 p.m. Dr. Chandak met him in the campus of building. The witness told him that he had seen one boy wearing red colour T shirt with purple colour scooty standing on the road. The police arrived at the campus and he disclosed all facts to the police. This witness has identified the accused no.2 in the dock. He has also identified the accused no.2 in the identification parade held under panchnama Exh. 68. His evidence is sought to be attacked on the ground that he is an interested witness, inasmuch as he is a neighbour of Dr. Chandak and there were occasional money transactions between him and Dr. Chandak. However, merely because a witness is an interested witness cannot be a ground to discard his testimony. The evidence of such a witness is required to be scrutinised with greater caution and can be relied on if it is found to be reliable, trustworthy and cogent. We find that nothing damaging has come in the cross-examination of this witness. Merely because there are money transactions between the first informant and this witness cannot make him unreliable. It is natural that the neighbourers might help each other in the times of need. In any case, the presence of this witness is corroborated by PW.31 Arun Meshram.

27. The next witness on this point is PW.23 Rupali Kansare - neighbour of accused no.1 Rajesh. She states that on 1.9.2014 at around 4.30 p.m. she was washing the clothes in the courtyard of her house. At that time, the accused Rajesh accompanied with one friend came on his scooty bike. There was a minor boy of 5-6 years sitting on the scooty in between them. The accused Rajesh was driving the scooty and he gave dash to the wooden entrance gate of the boundary wall of his house. She states that thereafter, therefore, she paid attention and told him that if he drives the vehicle in such a manner, it would cause hurt to minor boy sitting in between them on scooty. She states that she had not seen the clothes of the boy sitting on the scooty due to plants and trees in the courtyard. She had asked the accused Rajesh as to who was the minor boy. He disclosed that minor boy was the younger brother of his friend. The accused Rajesh parked his scooty in the courtyard. Thereafter, accused Rajesh took his motor bike and trio went away. She has identified the friend of the accused Rajesh. Her evidence is sought to be attacked on the ground that she was pregnant and was required to take bed rest. She has been thoroughly cross-examined on that ground. However, she has withstood the cross-examination. She has stated that though she was asleep in the afternoon, she had woken up in the noon hours at around 4.30 p.m. for washing clothes. It is also sought to be attacked on the ground that she had admitted that activities going on in the courtyard of the house of accused Rajesh were not visible from the courtyard of her house. It is also sought to be attacked on the ground that the identification parade of this witness is not conducted. It could thus be seen that this witness is an immediate neighbour of the accused Rajesh. On account of the vehicle giving a dash to the gate, her attention being drawn and she seeing the accused persons with the small boy is quite natural. However, her identification parade is not conducted. As such, we find it difficult to accept her testimony in so far as identification of the accused no.2 for the first time in the dock. However, we find that her evidence establishes that the accused no.1 Rajesh along with one another person and one minor boy had come on a scooty. They parked the scooty in courtyard and thereafter took his motor cycle and went away.

28. The evidence of PW.9 Divya Chandel is at Exh. 47. The witness is taking education in Adarsha Vidyalaya of village Patansawangi. She states that the timing of her school was from 12 noon to 5.15 p.m. She states that on the day of incident, i.e. 1.9.2014 she along with her friend Tanushri Keche were returning from their school on their bicycle. While returning when they were passing nearby a Pump House of the Itangoti Lake, they saw one motor bike parked aside the road. They saw that three persons were sitting on the motor bike which was in stationary condition aside the road. After seeing them, the motor bike riders started the vehicle and started proceeding ahead towards their side. The boy who was driving the bike had worn the almond colour shirt and the pillion rider boy was wearing the red colour half T shirt. There was one boy in between both the riders and the boy appeared in sleeping condition. They saw that the motorbike riders went towards the pathway (Pandhan) abutting to the road. Thereafter, within 2-3 minutes, motor-bike riders returned on the road and proceeded towards Patansawangi area. She states that this happened at around 5.30 p.m. She further states that after some days police came in their village. They had shown the photograph of one boy. After seeing the photograph, she recollected the events occurred on that day and told the police that she had seen the boy accompanied with two motor-bike riders on the road near Water Pump of lake. Thereafter the police recorded her statement. The said witness has also identified both the accused in the identification parade conducted vide panchnamas Exhs. 49 and 50. She has also identified the accused in the dock and also the clothes which were worn by the accused and the deceased. The evidence of this witness is sought to be attacked on the ground that it is impossible that in such a short point of time she could see the accused and the deceased boy. However, it has come in the cross-examination itself, that when she was returning home from the school, at that time she saw the motor-bike riders when the vehicle was in stationary condition on the other side of the road. It could thus be seen that in the cross-examination of this witness it has come on record that she had seen the accused when the motorbike was in a stationary condition. It has also further come in the cross-examination so also in examination-in-chief that she had again an opportunity to see the accused and the deceased while both of them were returning to the road from Pandhan. It is contended by defence Counsel that the evidence of this witness cannot be relied, inasmuch as her friend Tanushri Keche is not examined. By now it is a settled principle of law that it is not necessary to examine each and every witness. The veracity of the evidence of this witness is also sought to be attacked on the ground that she is also a planted witness. From material placed on record, it appears that the school timings and the timings of the accused coming there on the motor-cycle appear to have coincided. As such, she having an opportunity to see the accused while returning from the school is natural. Apart from that, from the CDRs. to which we will be referring to in the later part of the judgment, the presence of accused No.1 at Patansawangi at that point of time is duly corroborated. As such, we find that it could be safely concluded from the evidence of this witness that at around 5.30 p.m. she had seen the accused in the company of the deceased near the pump house of Itangoti Lake.

29. PW.11 Namdeo Dhawale, whose evidence is at Exh. 52, is an agricultural labourer. He states that on 1.9.2014 at around dusk he was returning with his she-goats from the cart track (Pandhan). There was a downward slope to the cart track. He saw one motorbike coming from the opposite side. There were two persons on the motor-bike and one minor boy was sitting between them on the bike. The motor-bike riders were of 20-22 years whereas the minor boy sitting in between them was 8-10 years old. The minor boy was in sleeping condition as his head was seen tilted on his shoulder. He states that on seeing the plight of the minor boy, he attempted to proceed towards the motor-bike riders. But on seeing him, the motorbike rider took U-turn and went back towards the tar road and vanished from the spot. He further states that after 2-3 days the police arrived in the village and had shown the photograph of the boy to the villagers. He had seen the photograph and recollected the event which he had seen on the pathway and as such, he disclosed all the facts to the police. He states that the driver of the vehicle had worn almond colour shirt. The minor boy was in school uniform of sky-blue shirt and the pillion rider had worn red colour T shirt. The identification parade of this witness has not been conducted. In our considered view, it will not be safe to rely on the identification of the accused by this witness for the first time. However, we find that his evidence can be safely relied on to come to a conclusion that he had seen two persons on a motor-cycle with a minor boy. As a matter of fact, the evidence of PW.9 Divya Chandel would stand corroborated by the testimony of this witness, inasmuch as she also states that the motor-cycle went towards Pandhan but immediately returned back.

30. The last witness in this line is PW.10 Shriram Khadatkar, whose evidence is at Exh. 52. The agricultural land of this witness is located within the vicinity of Tandulwani village and is adjoining the boundary of Babulkheda village. He states that in the month of September he had engaged 12-14 women labourers for agricultural operations in the field. He states that there is a tar road abutting his land and the tar road as well as pathway are available for egress and ingress to his land. The labourers are generally utilising the pathway for going to his field. He states that on the day of the incident, the labourers had worked uptill 5.15 and 5.30 p.m. and thereafter they had left the field and returned by the pathway. He had come on the road and was waiting for motor-cycle of his son. Meanwhile, he saw one motor-bike of black colour coming from Patansawangi village. He had seen two boys of 20-22 years old on the motor-bike. There was one boy sitting on the motor-bike in between both the youngsters. The motor-bike went ahead upto 100-150 ft. on the road and they stopped the vehicle after crossing the bridge. The boy who was driving the motor-cycle stepped down from the vehicle. The pillion-rider caught hold of the boy sitting in between them. They parked the vehicle and the driver lifted the boy on his shoulder and proceeded towards the culvert. Meanwhile, his son arrived with motor-bike and, therefore, he went away towards his village on his vehicle. He states that thereafter after 2-3 days his servant informed him about the incident of murder of one boy in the culvert. As such, he recollected the incident of motor-bike. On the following day, police arrived in the village and shown the photograph of the boy in the culvert. This witness has apart from identifying the accused in the dock has also identified them in the test identification parade below Exhs. 53 and 54. He has also identified the photograph of the boy who was accompanying the accused. His evidence is attacked on the ground of certain omissions. Apart from the said omissions not being put to Investigating Officer, they are of minor nature. The location of the spot from where the body was recovered is near the agricultural field of this witness. As such, his presence is natural. He is a rustic villager and has no grudge against any of the accused. We find that there is nothing to disbelieve the version given by this witness.

31. The evidence of these witnesses is sought to be attacked on the ground that in most of the identification parades the witnesses have identified the accused at serial No.4. The identification parades are conducted by PW.45 Mohan Tikale, Executive Magistrate. The perusal of his evidence would reveal that though after the identification by the particular witness was over, on every occasion he had asked both the accused as to whether they were willing to change their clothes or the place in the row, however, both the accused declined to change the clothes or the place at serial no.4 where they were standing in the rows. It appears that for the reasons best known to them, though an ample opportunity was given to the accused to change their places or change the clothes, they had declined to do so. In any case, nothing damaging in the cross-examination of this witness, who is a responsible Government Officer, has come on record. It will be relevant to refer to the following observations of the Hon''ble Supreme Court in paragraph no. 21 in the case of Subhash Krishnan v. State of Goa reported in (2012) 8 SCC 365 which read as under :-

32. The evidence of these witnesses is sought to be attacked on the ground that all of them are chance witnesses and planted witnesses. As already discussed by us herein above, the presence of these witnesses at the spots where they have seen the accused in the company of the deceased is natural. In this respect, we may gainfully refer to the observations of Their Lordships of the Apex Court in paragraph no. 8 in the case of Thangaiya v. State of T.N. reported in (2005) 9 SCC 650, which read as under :-

The electronic evidence of C.C.T.V. footage

33. The prosecution also relies on the CCTV footage recovered from the petrol pump wherein the accused had refueled the vehicle. PW.35 Shrikant Sharma is a Manager of Sundar Auto Centre. His evidence is below Exh. 144. He states that he was working as a Manager of the petrol pump located within the vicinity of Bhokara, Koradi Road, Nagpur. He states that Bharat Petroleum Corporation had given the contract to the Kores India Limited for installation of CCTV Cameras at the premises of their petrol pump. Accordingly, on 4.6.2012 in all eight CCTV cameras were installed in the premises of their petrol pump. The representative of the Kores India Limited - Shri Hemant Thakre installed the CCTV cameras at their petrol pump. He states that eight numbers of CCTV cameras, NVR and monitor, etc. were supplied at their petrol pump by the Kores India Limited. The understanding was given to him that all the cameras were to be functioning 24 x 7 hours and in case of any malfunctioning in the system, they had to lodge the complaint to the Bharat Petroleum through the Broma Software. He has stated that till date there was no occasion for him to lodge complaint about the malfunctioning of the CCTV cameras and its system installed at their petrol pump. He further states that the CCTV cameras installed at their petrol pump would capture images continuously for 20 days and thereafter it would delete the earlier recording for capturing the new images of the events occurred at the petrol pump. He states that the date and time were set in the system by the representative of the Kores India Limited and the timings set in the cameras were displaying 15-20 minutes less than the actual timings of the events captured in the camera. He states that the NVR and Monitor of the CCTV system were installed in the room of the owner and he used to open and close the cabin of owner daily. The keys of cabin of owner were always with him. He states that on 4.9.2014 in the noon hours, he was on duty at petrol pump. At around 2.30 p.m. police of Lakadganj police station came to the petrol pump. They disclosed him that they wanted to make enquiry in relation to the incident occurred on 1.9.2014. The police personnel gave him one letter for showing the footage of the CCTV cameras captured on 1.9.2014. Thereafter, he took the police personnel to the cabin of his owner and shown the footage of the CCTV cameras captured on 1.9.2014. He states that it was reflected from CCTV that one person wearing almond colour shirt arrived at the petrol pump with pillion rider with red colour T shirt and black colour jean pant. There was one minor boy with school uniform seen sitting in between both the motor-bike riders. He further states that on 5.9.2014 once again the police personnel and others came to his petrol pump at around 11 a.m. They met him and gave the introduction of the panchas as well as one representative of Kores India Limited Shri Rathod and one Dr. Chandak, who were accompanied with them. The person, namely, Rathod gave him the letter that he wanted to remove hard-disc, etc. of the CCTV cameras fitted at the petrol pump. Thereafter, Rathod verified the CCTV footage captured on 1.9.2014. While screening the footage, this witness, panchas, police personnel and Dr. Chandak were present in the cabin. After seeing the footage, Dr. Chandak recognised the motor-bike rider being the employee of his clinic. He also identified his minor son Yug who was sitting in between both the riders. Dr. Chandak disclosed the name of the boy who was driving the motor-bike as Rajesh employee of his clinic. Thereafter, one blank C.D. was procured and Shri Rathod copied down the footage of the CCTV in the blank C.D. captured on 1.9.2014 during the period from 4.32 p.m. to 4.40 pm. He again verified the images copied in the C.D. and got confirmed that the footage was the same which was captured by the CCTV cameras. Thereafter, the personnel of Kores India Limited Shri Rathod removed the hard-disc from NVR and gave it to police in presence of panchas. He states that he can identify the footage of the CCTV cameras which were copied down in the blank C.D. in presence of Shri Rathod. It could be seen from his evidence that the footage which was copied has been played in the Court and this witness has identified the same to be from the CCTV cameras. He further states that he has issued the requisite certificate of the CCTV footage prescribed under Section 65-B of the Indian Evidence Act. His testimony is sought to be attacked on the ground that he does not have any special knowledge about the software and hardware of the computer system. It is further sought to be attacked on the ground that he has taken assistance of his accountant Nitesh Tiwari on 4.9.2014 when the police arrived. The witness was a Manager of the petrol pump. As such, a workable knowledge of the system was sufficient for him. From the evidence of this witness, it is clear that he was a person occupying a responsible official position in relation to the device from which the footage of CCTV was recovered. His evidence clearly shows that it was his responsibility to open and close the cabin of owner wherein the NVR and Monitor of the CCTV system were installed and the keys of the said cabin were always with him. A certificate as required under Section 65-B has been given by him which is exhibited as Exh. 146. Not only that, but his evidence is duly corroborated by PW.30 Hitesh Rathod and PW.48 Pratik Rathi. As such, we find that the contention as raised by the defence Counsel is without substance.

34. PW.30 Hitesh Rathod is an officer in the Kores India Limited, Nagpur dealing in the maintenance and installations of the CCTV cameras. He had taken over from Shri Hemant Thakre. He states that from the official record he came to know that eight CCTV cameras were installed on the petrol pump of Bharat Petroleum, namely, Sundar Auto Center at Bhokara, Nagpur. The purchase order and the invoices which are electronic generated documents are exhibited in his evidence at Exhs. 123 and 124. He states that the system of CCTV cameras installed at the premises of Sundar Auto Centre includes the device known as Network Video Recorder comprising hard-disc, LCD screen monitor and router with cameras in all eight in number. He further states that the capacity of the memory of the hard-disc was 2000 GB and it was of Seagate Company make. There were provisions in the CCTV cameras for automatic recording of events of 24 hours. He states that the CCTV cameras will record the movements for about 20 days approximately and used to operate for 24 hours. He further states that on continuous recording for about 20 days and on finishing the space in the memory of hard-disc, there was a system to delete the earlier recording carried on the very first day and to capture the current movements occurring at that time. He further states that the software known as Broma was developed by the Bharat Petroleum Company for lodging the complaints about the maintenance of CCTV cameras installed at their petrol pump. He further states that his office did not receive any complaints about the CCTV cameras installed at the Sundar Auto Center since its installations. He further states that his office had received the authorisation letter dated 5.9.2014 from the Bharat Petroleum Corporation with direction to remove the hard disc from CCTV cameras and NVR installed in the premises of Sundar Auto Center and deliver the same to Lakadganj Police Station. The same is exhibited at Exh. 125. Thereafter, his superior Shri Surshe issued him authorisation letter in his favour and instructed him to visit the retail outlet of the Bharat Petroleum Corporation Limited, namely, Sundar Auto Center and remove hard-disc and do the required related work and provide assistance to the Lakadganj police for further investigation. He further states that thereafter he went to the Police Station and from there along with the police party and panchas and Dr. Chandak came to the petrol pump. Thereafter, he inspected the CCTV footage recorded in the eight cameras. During inspection, they screened the CCTV footage recorded on 1.9.2014 between 4.30 to 4.40 p.m. CCTV footage reflected that two boys arrived at the petrol pump on black colour bike to fill up the fuel in their vehicle bike. There was one minor boy seen sitting in between them on the bike. The boy who was driving the motor-bike had covered his mouth with the scarf, whereas they had noticed the face of the boy who was pillion rider on the bike. They had observed the face of the minor boy who was sitting between them on the bike. He further states that the first informant divulged that the minor boy sitting in between both the riders was his son Yug and the boy who was driving the bike was his employee Rajesh Daware. He further states that the boy who was driving the motor-bike had worn the almond colour shirt and Khaki colour full pant and school uniform was on the person of minor boy, i.e. sky-blue colour T shirt. The red colour T-shirt and black colour jean was on the person of pillion rider. He further states that it was transpired that all these relevant movements came to be captured by third camera installed on the southern wall of the office facing towards south direction. He states that thereafter the police personnel Shri Nikam had given him the instructions to take copies in the form of C.D. of the relevant footage captured by the CCTV cameras of the particular time. The police procured the blank CD and gave it to him. He verified the same CD as to whether it was blank or not. He verified that the CD brought by the police was blank at that time. Thereafter, by using the software he converted the relevant CCTV footage in AVI format meant for extension of the video format. Thereafter he inserted the blank CD in the writer of the computer and took the copies of the relevant CCTV footage recorded in between 4.30 to 4.40 p.m. of 1.9.2014 by the third camera installed in the premises. He states that thereafter he checked and verified the CD and it was found that the CCTV footage were properly copied in the CD. Therefore, he delivered the CD to the police for further process. He states that thereafter he was informed by the Police Officer that he was in need of the hard-disc of the concerned CCTV footage. Therefore, he again verified the movements captured by the CCTV cameras. It was revealed that all the relevant recordings were intact. He got confirmed that the entire CCTV system was working in proper condition and thereafter he shut down the NVR system and removed the hard-disc from the NVR. Thereafter, he delivered the custody of the hard-disc to the police for further process. The police packed and sealed the CD and hard-disc in presence of himself, both panchas and Dr. Chandak. He states that thereafter he returned to his office, prepared the requisite certificate which was required to be issued under Section 65-B of the Indian Evidence Act. Seizure panchanama is at Exh. 127. A certificate as required under Section 65-B is below Exh. 128 and affidavit and its accompaniments are below Exh. 129 and 129/1. His evidence is sought to be attacked on the ground that the CCTV was installed by Shri Hemant Thakare and as such, it was only Shri Hemant Thakare who was authorised person to carry out the exercise. We find that the contention in that regard is without substance. The witness has clearly stated that Shri Hemant Thakare was his predecessor and he had taken over the work from Shri Hemant Thakare and he was the only person available for installation and maintenance of CCTVs. He has also deposed that he was given authorisation letter by the competent officer.

35. The evidence of these two witnesses is duly corroborated by the evidence of panch witness PW. 48 Pratik Rathi, who has acted as a panch to seizure panchnama at Exh. 121.

36. The next witness on this aspect is PW.47 Smt. Chitra Kamat, whose evidence is below Exh. 222. In her evidence, she states that she was the Head of the Department of Cyber Forensic Laboratory and there are six officers attached to her department being Scientific Officers. She states that the officers used to check and verify the exhibits of muddemal received from the concerned department to carry out examination, analyse the same and express their opinion. She states that on 25.9.2014 her office received one sealed parcel of the hard-disc and four sealed envelopes referred by the police of Lakadganj Police Station, Nagpur under a property of Crime No. 287/14. She states that the said material was received by receiving clerk Mahesh Khanawekar, who placed the material before us. She states that thereafter she called her Scientific Officer Shri Yuvraj Deshmukh, who opened the articles for verification in her presence. Shri Deshmukh took the entries of all the articles in the register maintained and preserved in the office for the said purpose. He gave the Department Case Number as CY-738/14 to all the articles. Thereafter Shri Deshmukh opened the wrapped paper envelopes, four in numbers in her presence. The first envelope contained the photographs of the vehicle which were attested reference photographs. The said photograph was marked as Exh. 2. In another wrapped paper envelope there was one photograph of the person and it was attested reference photograph and marked as Exh. 3. The third wrapped paper envelope was opened containing another attested reference photograph of another person and it was marked as Exh. 4. The fourth wrapped envelope was also opened and it was an attested reference photograph of the boy and it was marked as Exh. 5. The Scientific Officer Shri Deshmukh once again packed and sealed all these articles in paper envelopes separately in her presence. She states that these articles were already marked as Exhs. B to E by the police of Lakadganj Police Station. She states that thereafter on 20.10.2014 she assigned the articles to Scientific Officer Shri Salunke for test analysis in the forensic laboratory. She submits that after carrying out the analysis in the prescribed form, Shri Salunke prepared the report on 22.11.2014. She states that thereafter she handed over the articles as well as C.A. reports to P.I. Nikam of Lakadganj Police Station. Nothing damaging has come in her cross-examination.

37. It will also be relevant to refer to the evidence of PW.49 Naresh Gumgaonkar. The witness is a police photographer and had taken the photographs of the accused persons who were detained in Ambazari and Sadar Police Stations and also the Honda motor-cycle which was used in the crime for the reference purpose for sending it to the forensic laboratory. The reference photographs of the Hondo Motorbike as well as both the accused are exhibited in his evidence below Exh. Nos. 166, 166/1, 167 and 168.

38. The last and most important witness on this aspect is PW.38 Mr. Ajay Salunke. The evidence of this witness is below Exh. 158. He has stated in his evidence that he used to analyse and examine the hard-discs, C.D., Pen-drive, memory cards, mobile phone, etc. which were referred to him from the various Police Stations from Maharashtra. He states that on 20.10.2014 the articles were allotted to him for the forensic analysis. He opened the four sealed envelopes containing the sheets of photographs which were marked by his office as Exhs. 2 to 5. He states that there were four stages for analysis of articles. The first stage was acquiring, thereafter verifying, hashing and file signatures. He further states that at the time of analysis of hard-disc Exh. 1/1, it was not detected by the tools available in Cyber Forensic Division of his laboratory and, therefore, he had carried out analysis on the C.D. Exh. 1/2. He had adopted the same process and by acquiring he created the images of C.D. Exh. 1/2. He verified the images with the original C.D. Exh. 1/2 and generated the hash value of the same. He carried out the process of file signatures. Thereafter he arrived at the conclusion that there were no errors in the file signatures. He states that during analysis of C.D., six video files were detected in the extension which were of type "video file (.avi)". He further states that there were in all six files in the C.D. and all the six files were continuous and not edited at all. He further states that he concluded the same after its examination by framing and timing method. He further states that he carried out the second test to ascertain that the files were not edited by hue saturation view method. All the six files were found not edited at any point of time and same were continuous one. He prepared the frame (still photos) of the video pictures recorded in the C.D. Exh. 1/2. He states that thereafter he selected some frames (still photos) prepared by him for analysis after image processing and its enhancement. He had compared the frame with the photographs referred by the police vide Exhs. 2 to 5 for matching purposes. After analysis of all these photographs of C.D. Exh. 1/2 with the photographs referred by the police, he issued report about the same to the police. The report below Exh. 160 is exhibited in his evidence. The scanned copies of the reference photographs are exhibited at Exhs. 161 to 165 in his evidence. He has also issued a certificate under Section 65-B of the Indian Evidence Act. His evidence is sought to be attacked on the ground that he has only analysed the C.Ds. and not the hard-disc. However, he has categorically stated in his evidence that there would have been a risk about the integrity and problems in data accessing and data loss if he had analysed the hard-disc. It is further to be noted from the evidence of this witness that he has carried out the analysis on the basis of face identification software programme. In his cross-examination itself, it has come that the face identification software training was given to him for work of analysis being Scientific Officer. It could thus be seen from the evidence of this witness that on a scientific basis it has been found that the images of the accused and the deceased and the motor-cycle at the petrol pump tally with the reference photographs of the accused, the deceased and the motorcycle.

39. It will be relevant to refer to the observations of the Apex Court in the case of Anvar P.V. .v. P.K. Basheer and others reported in (2014) 10 Supreme Court Cases 473 which read thus :-

40. It may be seen that in the present case all the requirements under Section 65-B of the Indian Evidence Act have been complied with. It has come in the evidence of PW.35 Shrikant the network video recorder comprising hard disc and LCD screen monitor of the CCTV system were installed in the room of the owner. It has also come in his evidence that he used to open and close the cabin of the owner and the keys of the cabin of the owner were always remained with him. It could thus be seen that the said witness had complete control over the said system. PW.35 Shrikant was working as a Manager of the Petrol Pump and the said system was put under his charge. As such he was a person occupying a responsible official position in relation to the operation of the said system. The material placed on record would reveal that the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of security. It has also been established from the evidence of PW.35 Shrikant and PW.30 Hitesh that the said activity was regularly carried on over that period by PW.35 Shrikant who was keeping control over the use of the computer. The evidence of PW.30 Hitesh duly establishes this. The requirement regarding the information of the kind contained in electronic record or of the kind from which the information so contained is derived, was regularly fed into the computer in the ordinary course of the said activity, is duly proved in the evidence of PW.35 Shrikant and PW.30 Hitesh. The requirement that during the material part of the said period, the computer was operating properly has been established again in the evidence of PW.35 Shrikant and PW.30 Hitesh. The requirement that the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity is also duly proved in the evidence of PW.35 Shrikant and PW.30 Hitesh. The certificates under Section 65-B as has been observed by the Apex Court in para 15, have also been duly issued by PW35 Shrikant and PW30 Hitesh. The evidence regarding copying that information on the CD from the hard disc and regarding the seizure of the hard disc and the copy of the CD, has come in the evidence of PW35 Shrikant, PW30 Hitesh and PW48 Pratik Rathi. The evidence of PW47 Smt. Chitra Kamat would show that her office had received the material in sealed parcel. She had authorised PW38 Ajay Salunke to carry out the analysis. PW38 has carried out the analysis in the scientific manner. It will be relevant to note from the evidence of PW38 Ajay that he had generated the hash value of the CD. It will be relevant to refer to the information regarding file verification downloaded from Wikipedia :

He has categorically stated in his evidence that all the files were found not edited at any point of time and the same were continuous one. We are, therefore, of the considered view that the scientific evidence of CCTV footage of 1.9.2014 between 4.30 and 4.40 p.m. would clearly reveal that both the accused along the deceased had come to the petrol pump on a motorcycle seized at the instance of accused no.1 for refueling the vehicle. As has come in the evidence of PW35 Shrikant, the timing of the computer was set 15 to 20 minutes less than the actual timing, as such the timing of the accused coming to the petrol pump would be around 4.45 to 4.55 or 4.50 to 5 p.m.

41. We are, therefore, of the considered view that from the evidence placed on record that the prosecution has established beyond reasonable doubts :

Recovery of the dead body

42. PW 28 Mahesh Fulwani is a panch witness on a memorandum under Section 27 of the Indian Evidence Act. His evidence is below Exh.105. He states that on 2.9.2014 he was passing from Lakadganj Police Station. He saw the huge crowd in front of the Police Station. He saw that his friends were in the mob. He stopped near the Lakadganj Police Station to take stock of the situation. He further states that while discussing with his friend, the police called him inside the Police Station and took him to the room of P.I. Jaiswal. He states that P.I. Jaiswal told him that the accused in the case of kidnapping of boy Yug was intending to say something and, therefore, he requested him as to whether he is ready to act as a panch. He further states that he replied in the affirmative. One another panch namely Girish Malpani was to act as the other panch. It has further come in his evidence that the Police personnel brought one person in the chamber of P.I. Jaiswal. The person disclosed his name as Rajesh Daware. He had also disclosed his personal details about his age, address etc. which were reduced into writing by the Police on the document. He has identified the person who disclosed his name as Rajesh, to be the accused no.1. The accused Rajesh further made a statement that he and his accomplice committed murder of the boy Yug and his dead body was buried by them in a place which he was ready to show. The Police prepared panchanama about the statement made by the accused in his presence. He had also verified the contents of the panchanama. It was correctly recorded as per the events occurred in the Police Station. Thereafter he had put his signature on it. The accused Rajesh, another panch Malpani and P.I. Jaiswal put their signatures on it. The panchanama is exhibited below Exh.106. PW. 28 Mahesh further states that the Police party, as well as the panchas started proceeding outside the Police Station. In the meanwhile one four wheeler arrived at the entrance gate of the Police Station. P.I. Jaiswal got down from the vehicle and went near Dr. Chandak, who was sitting in a car. He states that he was acquainted with Dr. Chandak since beginning. After some conversation, P.I. Jaiswal came back into police vehicle and they started proceeding as per the directions of the accused Rajesh. The car of Dr. Chandak was following the police vehicle. Thereafter the accused led the panchas, the police party upto vicinity of Patansawangi village. Thereafter he asked to take left turn towards the village Babulkheda. After they travelled for some time on the road, the accused asked to stop the vehicle near bridge. All the occupants of the vehicle got down on the road. Accused Rajesh started proceeding towards other end of the bridge on the road. Both panchas and the Police were following him. The accused Rajesh pointed out the spot from the road which was located under the bridge. There was a pathway for going beneath the bridge. Thereafter accused went down towards the spot under the bridge. The panchas also proceeded behind accused Rajesh. There were near about seven to eight channels of water in the rivulet but there was no water in it. The accused pointed out the place in the first channel of the rivulet. They verified the spot which was shown by the accused Rajesh. There was one dead body of minor boy covered with leaves and sand particles. He had also seen one big boulder kept on the head of the dead body. He had seen the big ants moving on the corpse of the deceased. Thereafter P.I. Jaiswal asked the panchas to remain at the spot of incident. After about � hour, the services of the photographer were procured. Arrangement for Ambulance for carrying the dead body for post mortem was also made. The Police Constable removed the boulder from the head of the deceased so also the leaves and sand from the dead body. Thereafter P.I. Jaiswal called Dr. Chandak at the spot under the bridge. Dr. Chandak was kept waiting on the road near the bridge. Dr. Chandak came down at the spot beneath the bridge. Dr. Chandak identified the dead body of the boy being the dead body of his son Yug. The Photographer had also taken some photographs of the scene of occurrence. Police thereafter asked Dr. Chandak to return to the vehicle. The Police personnel collected the boulder, sand particles and sand soaked with blood etc. from the spot. The police kept these article in polythene bag, container etc. and asked the panchas to put their signatures on its labels. Again panchanama was drawn. The dead body was removed from the place and taken in the Ambulance for further process. The panchanama is exhibited in his evidence below Exh.106-A. The seizure memo is exhibited below Exh.107. From the evidence of PW.50 I.O. Jaiswal, so also the recovery panchnama (Exh. 106-A), it could be seen that the I.O. had used bright torches at the time of the said recovery. The photographs taken while carrying out the said panchanama are exhibited in the evidence of PW18 Shirish Varhadpande- Police Photographer.

43. The perusal of the memorandum of the accused under Section 27 of the Indian Evidence Act would reveal that it is exculpatory in nature. However, only such part of the information which distinctly relates to discovery would be admissible in evidence. As such only that part of the statement of memorandum which gives information with regard to the discovery of the place where the dead body was concealed would be admissible. On the information given by the accused, the panchas and the Police party were led to place where the dead body of the deceased was concealed by the accused. It could be seen that the body was concealed by covering it with boulder and sand. The place was below the bridge which had eight compartments of 30 ft. in length and 6 ft. in width. After going to the bridge from the road, one was required to come downward. It could thus be seen that the information which was given by the accused no.1 which led to the discovery of the dead body was distinctly and exclusively within his knowledge. The evidence of Dr. Mahesh Fulwani is sought to be attacked on the ground that he is Medical Practitioner and as such he is deposing falsely at the instance of the first informant. We find that merely because the witness belonged to the profession of the complainant, cannot be a ground to discard his testimony. As a matter of fact, in the examination-in-chief itself, the witness had admitted that he was acquainted with Dr. Chandak since beginning. Nothing damaging has come in the cross-examination of this witness. We are, therefore, of the considered view that the prosecution has established beyond reasonable doubt that the discovery and recovery of the dead body of the deceased was on the basis of the information given in a statement made by the accused under Section 27 of the Evidence Act.

44. It will be relevant to refer to the following observation of the Apex Court in the case of Paramasivam v. State reported in (2015) 13 Supreme Court Cases 300 which read thus :

The time gap between the deceased last seen in the Company of the accused and the death occurring is so short that leads to no other conclusion than the guilt of the accused :

45. The evidence of PW.27 Dr. Avinash Waghmode who was one of the Doctors, who had carried out the post mortem, would reveal that the time of the death of the deceased was between 36 to 48 hours prior to the time on which the post mortem was conducted. The post mortem was conducted on 3.9.2014 at 12 noon. As such the period during which the deceased Yug must have died would come between 12 noon of 1.9.2014 till 12 midnight of 1.9.2014 and 2.9.2014. It will be appropriate to refer to the following observations of the Hon''ble Supreme Court in the case of Mahavir Singh v. State of Haryana reported in (2014) 6 Supreme Court Cases 716 which read thus :

It could thus be seen that Their Lordships have held that the last seen theory would come into play only in a case where the time-gap between the point of time when the accused and the deceased were seen alive and when the deceased was found dead is so small that there may not be any possibility that any person other than the accused may be the author of the crime.

46. In the present case we have come to the conclusion that the accused were in the company of the deceased between 4 p.m. to around dusk i.e. roughly 6 p.m. Undisputedly the deceased was alive till 4 p.m. As such the death of the deceased had occurred between the period i.e. 4 p.m. and 12 p.m. As already discussed herein above we have come to the conclusion that between 4 p.m. and 6 p.m. the deceased was in the company of the accused. The dead body of the deceased is discovered at the instance of the accused No.1 on the next day. We, therefore, find that the time-gap between the deceased seen together in the company of the accused and the deceased being found dead is so short that the conclusion can be drawn, that it is the present appellants who are the author of the death of the deceased.

47. There is another aspect to it. It is proved beyond reasonable doubt that the deceased was in the company of the accused between 4 p.m. and 6 p.m. The death of the deceased occurred during that period or immediately thereafter. As such in view of the provisions of Section 106 what has happened during that period or thereafter is exclusively within the knowledge of the accused and it was for the accused to explain the same. It will be relevant to refer to the following observations of Their Lordships of the Apex Court in the case of Sunder @ Sundararajan v. State reported in 2013 LawSuit (SC) 105 in paragraphs 26 and 27, which read thus :

48. The facts in the present case are almost identical. In the present case also, it has been duly established that the accused had kidnapped the deceased Yug. As such it was upon the accused/appellants to produce any material on record to show the release of the deceased from their custody. In view of the provisions of Section 106 of the Indian Evidence Act, in the absence of any such material produced by the accused, it will be presumed that the custody of the deceased Yug remained with the accused till he was murdered.

The recovery of the other incriminating material on The memorandum under section 27

49. PW21 Ajay is a panch on memorandum of the accused Rajesh leading to the recovery of ATM card, handkerchief, shirt-pant. His evidence is at Exh.74. He states that when he was coming out of the saw mill, the police personnel requested him to act a panch. He expressed his inclination and went inside the Police Station. He states that another panch Persanani was already present there. The Police personnel brought one boy and asked his name. He states that he disclosed his name as Rajesh Daware. He confessed that he wanted to produce the articles which were used by him for commission of crime including the clothes. He disclosed that he had concealed all these articles in his house. A memorandum panchanama below Exh.75 is exhibited in his evidence. He states that thereafter he and another panch and police party proceeded towards Gulshan Nagar. The accused led panchas to his house. He asked to stop the vehicle in front of his house. They alighted from the vehicle. The accused Rajesh started proceeding ahead and they all followed him. The mother of the accused Rajesh was present in the house. Rajesh entered inside his house, followed by the panch and the Police. There was one bedstead on the left side of the room in his house. . He produced one ATM card, handkerchief, shirt, pant which were wrapped in the clothes kept in the box of the cot. He also produced pair of sleeper which were under the cot. Then Rajesh pointed out two vehicles which were parked in front of his house. The Honda motorbike was of black colour. The footrest of the Honda motorbike was smeared with sand particles. The police removed the footrest of the motorbike and seized it in plastic packet. The pair of the sleeper was also stained with sand particles. The Police also seized both Honda motorbike as well as the Scooty. The recovery panchanama was exhibited below Exh.75-1. The perusal of the panchanama would reveal that all these articles were sealed and taken in custody in presence of the panchas. The testimony of this witness is sought to be challenged on the ground that he is a planted witness. We find that such a contention is de hors of any substance. Nothing damaging has come in the cross-examination of this witness.

50. The ownership of the motorbike is also challenged by the accused no.1. However, the prosecution has examined PW.22 Prashant Jaikumar who was working in Lifeline Oriental Tradelink India Ltd. He was acquainted with the mother of the accused no.1 since she was also working as a Field Officer in the same company. He has stated in his evidence that Smt. Bhumeshwary, the mother of the accused wanted to purchase TVS Scooty as well as motorbike of Honda company. However, since she was not in a position to get the finance, the said vehicles were purchased in his name. However, the repayment of the loan was made by the mother of the accused. It is to be noted that all these circumstances revealed in the evidence of PW.22 Prashant have been put to accused no.1 in his examination under Section 313 of the Cr.P.C. In his answer, he has admitted all this. There is a clear admission that the two vehicles purchased in the name of PW.22 Prashant were in the custody of the accused no.1 Rajesh and his family. In view of the judgment of the Apex Court in the case of Ashok Debbarama @ Achak Debbarama which we have reproduced in the other part of the judgment though no conviction can solely be made on the basis of statement under Section 313 of the Code of Criminal Procedure, such a statement can certainly be taken aid of to lend credence to the evidence led by the prosecution. As such we find that the prosecution has proved beyond reasonable doubt that the motorbike which was used in the crime and the number of which has duly come on record in the evidence of CCTV footage, was in the custody of the present accused no.1 Rajesh.

51. The defence has also examined Smt. Bhumeshwary as DW1, the mother of accused no.1, in order to show that the recovery on memorandum under Section 27 of the Evidence Act was not true. She has stated in her evidence that after the incident, on 3.9.2014 the police personnel of Yashodhara Nagar Police Station came to her house and informed that all the family members should go to the safe place as there was a murder case filed against her son Rajesh. Thereafter all the family members put lock to their house and went to the house of her relative. She further states that they stayed at the house of her sister-in-law for entire day. She states that thereafter on 4.9.2014 one Prashant Jaikumar phoned her and disclosed that two three persons from Lakadganj Police Station had arrived at her house and they were calling her. She states that thereafter she, her husband and younger son returned to home. She states that Policeman took the vehicle Scooty and that she and the policeman came to the Police Station on Scooty. Her husband and Prashant Jaikumar also visited the Police Station on another motorbike. She states that she was kept in the police custody for long time. In the meantime the Police had taken the keys of her house and returned it after some time. She states that on 6.9.2014, P.I. Jaiswal had taken her to her house and they asked her to open the lock of her house. When she entered in the house, she saw all the articles in the house were seen scattered in condition. She states that the Police asked her to open the Almira in the house. There were four pen-drives of her son Rajesh kept in the Almira, which were taken by the Police. However, in her cross-examination her testimony is shattered. She was not even in a position to tell the name of her sister-in-law in whose house they took shelter in the night of 3.9.2014. She volunteered that she had stayed at the place of distant relative. She admitted that she had not filed any complaint about her wrongful detention by the Police in the Police Station since 4.9.2014 to 9.9.2014. She has admitted that her statement was recorded on 8.9.2014 and that she has not informed to the police in her statement about her wrongful detention. In that view of the matter, we do not find that her testimony would be of any assistance.

52. PW.26 Sunil Kothari is a panch on memorandum of the accused Arvind under Section 27, which led to the recovery of T-shirt of the deceased. The perusal of his evidence would reveal that when the said witness was proceeding towards his office and passing from the premises of Lakadganj Police Station, a police personnel requested him to act as a panch witness in the crime. Thereafter he was taken inside the Police Station in the chamber of P.I. Jaiswal. Another panch was also present in the Police Station. He states that thereafter Police brought one boy in the chamber of P.I. Jaiswal who disclosed his name as Arvind Singh. He confessed about the crime and disclosed that after commission of the crime they took out the blue colour T-shirt of the deceased from his person and it was thrown at one place in the Nullah and he has shown his readiness to point out that place. The memorandum panchanama is exhibited in his evidence below Exh. 83. His evidence would further show that thereafter accused Arvind Singh directed themselves towards rivulet located in the vicinity of village Lonkhairi. Thereafter he alighted from the police vehicle and he started proceeded towards rivulet. He pointed out the place in the rivulet where he had thrown the blue colour school T-shirt of the deceased. Thereafter the sweepers started searching the clothes of the deceased and after 45 to 60 minutes, the sweeper fished out blue colour T-shirt from the water of rivulet and shown to the Police. Thereafter the said T-shirt was sealed. The said T-shirt has been identified by this witness and the other witnesses including PW1 Dr. Chandak, to be the T-shirt which was worn by the deceased. The said witness is also an independent witness. Apart from a vague contention that he is also a planted witness, nothing has been pointed out as to why his testimony should be disbelieved.

53. Another ground of attack is that if T-shirt was wet, then how it could have been wrapped in a paper. It will be relevant to refer to the evidence of PW.50 P.I. Jaiswal wherein he has clearly stated that the blue colour T-shirt was in wet condition, after removing the water by twisting it, the T-shirt was made to dry and thereafter seized in presence of the panchas under panchanama. There is no cross-examination of the Investigating Officer on this aspect. We, therefore, find that the contention in that behalf is without substance.

54. We are of the considered view that on the basis of distinct information given by accused no.2 Arvind on a memorandum under Section 27, on the basis of his direction a discovery of T-shirt of the deceased which was worn by him, when he was kidnapped is made. It is to be noted that the spot wherein the T-shirt was sought to be concealed, is around 5 kms. away from the place at which the dead body of the deceased was found.

55. PW.29 Harsh Firodiya is a panch on the memorandum of the accused below Exh.111, on the basis of which the clothes used by accused No.2 at the time of commission of the crime and the ornaments ring (Bali) came to be seized. The T-shirt which is recovered under the seizure panchanama below Exh.111-A has a label of "Status-quo" make which was the T-shirt given by PW1 Dr. Chandak to his employees. It is sought to be contended on behalf of the accused that the said recovery is also planted and farcical. It is submitted that in support of the recovery being farcical, accused no.2 has examined three defence witnesses. We have scrutinised the evidence of the defence witnesses. No doubt that merely because the said witnesses are defence witnesses, cannot be a ground for discarding their testimony. Their evidence is also required to be scrutinised in the same manner as that of prosecution witnesses.

56. DW1 Haribhau is the landlord of the house which was taken on rent by Abhilash Singh � the father of accused no.2. He states that Abhilash left the rented premises on 3.9.2014 after coming to know that his son was arrested in a kidnapping and murder case. He states that between 3.9.2014 and 5.10.2014, he used to visit the premises for watering the plants and plucking the flowers from the courtyard of the house. He has further stated that he had seen the lock put on the doors of the house of Abhilash Singh. However, the perusal of his cross-examination would reveal that he is residing at Motha Indora which on his own admission is 2� kms. away from the rented premises. It is, therefore, difficult to believe that he was coming every day for watering the plants at such a long distance. His statement is recorded on 26.10.2014. His cross-examination would show that the evidence is full of omissions and contradictions. As such it will not be safe to rely on his testimony.

57. Next witness examined by accused no.2 in support of this theory is Smt. Kusum Chandel - DW.2. She also states that after the arrest of Arvind, the tenant Abhilash Singh and his family members left the premises and started residing elsewhere. She has stated that she was not aware abut the visit of the police personnel to the house of Abhilash Singh. However, she has admitted in her evidence that Abhilash Singh has vacated the premises and taken his articles after about 1 � months of the incident. She has also admitted that every Tuesday there was a weekly bazar at Bhim chowk and she used to personally attend the bazar for purchasing the articles. She has further stated that she used to go on every Tuesday to the market between 5 and 6 p.m. Though she has stated that she does not know that on 9.9.2014 in the evening the Police accompanied with Arvind Singh visited his house located in front of her house, she has admitted that she had gone to bazar at that time and, therefore, she was not aware about the same. She has further admitted that the bazar was away from her house and she used to attend the bazar by bus which would take near about half an hour. She has further admitted that she returned to home on that day at about 8 p.m. She has further admitted that she is not well-versed with the timings. The perusal of the panchanama which is below Exh.111-A would reveal that the said proceeding commenced at 19.20 hours and concluded at 20.55 hours. Incidentally it is to be noted that 9.9.2014 happens to be the Tuesday which was a market day. As such the possibility of the seizure being carried out while said witness had gone to the market cannot be ruled out.

58. The third witness examined in support of this proposition is Abhilash Singh-DW.4, the father of accused no.2. He has stated in his evidence that though the arrest memo bears his signature but he does not know about its contents. He has further stated that he has put the lock to his house and left the premises since 3.9.2014 and returned to home on 5.10.2014. His cross-examination would show that his evidence is full of contradictions and omissions. As such, possibility of this witness deposing falsely to save his son also cannot be ruled out.

59. As against this there is no reason as to why PW.29 Harsh, who is an independent witness, would depose falsely. We find that memorandum below Exh.111 and the seizure panchanama below Exh.111/A are duly proved by the prosecution. As such the circumstances of recovery on the information given by accused no.2 of the "Status-quo" red colour T-shirt given by PW1 Dr. Chandak to accused no.1 Rajesh and ear ring (Bali) is duly proved. The said Bali has been identified by PW1 Dr. Chandak and the T-shirt has been identified by various witnesses to be the same which was worn by accused no.2 at the time of commission of the crime.

60. It is vehemently argued on behalf of the accused that the discoveries are farcical in nature inasmuch as the log-book entries and the location of the mobile of the investigating officer does not match the time at which the recoveries were made by the investigating officer. Insofar as the contention regarding the mobile phone is concerned, it has come in the evidence of the investigating officer that he was using two mobile phones. The CDRs are only pertaining to one mobile number. In any case, this has not been put to the investigating officer in his cross-examination. Had these circumstances been put to him in the cross-examination, he could have very well explained the same. In any case merely because the two mobile numbers are in the name of the investigating officer, it is not necessary that he must be using both the mobiles. As such we find that not much would turn on the same.

61. Insofar as the entries in the log-book are concerned, firstly it is to be noted that the said document is not exhibited. It will be appropriate to refer to para 17 of the judgment of the Apex Court in the case of U. Sree. v. U. Srinivas reported in (2013) 2 Supreme Court Cases 114 which reads thus :-

In the present case it will be seen that an application under Section 233(3) read with Section 311 of the Criminal Procedure Code was filed on behalf of accused No.2 below Exh. 302 for certain directions. One of the directions was for direction to produce the log book of Jeep No. MH-31/CV/0108 and MH-31/AG/9877 for the period between 1.9.2014 to 30.9.2014. On the said application, the notice was issued by the learned Sessions Judge on 12.8.2015. The said application was opposed by the learned Public Prosecutor vide reply dated 7.9.2015 below Exh. 305. However, the learned trial Judge vide order dated 10.9.2015 directed the certified copies of the log book to be produced. Accordingly, the same were produced on 5.10.2015 vide Pursis below Exh. 307. The learned Judge subsequently, upon the application of the accused No.2 below Exh. 314 without giving an opportunity to the prosecution has directed the said log book to be exhibited. The said document has not been proved in the evidence of any of the witnesses. In view of the aforesaid judgments of the Apex Court, we find that the approach adopted by the learned trial Judge was erroneous. As such the contents of the said log-book cannot be held to have been proved unless the author was examined and subjected to cross-examination. In any case, the perusal of the said log-book and particularly the entries with regard to 8th and 9th September, 2014 would rather substantiate the recoveries, rather than falsify the same. In that view of the matter, the contention in that regard is also without substance.

The scientific evidence

62. The Chemical Analyser''s report which is at Exh.272/1, 272/8 would reveal that the blood detected on the sand which was seized from the spot, the jean pant seized from the accused no.1 and the handkerchief seized from him are containing blood stains. The report below Exh.272/2 would also show that the sand on the pair of slipper and the footrest of the motorcycle seized at the instance of accused no.1 also tallies with the sample of the sand which was seized from the spot. It will be relevant to refer to the opinion of the Scientific Expert of DNA Profiling evidence for establishing identity :-

63. It could thus be seen that the prosecution has also established that the jean pant and the handkerchief seized at the instance of the accused no.1 Rajesh matches with the DNA profile of deceased Yug. The prosecution has also proved that the slipper and the footrest of the motorcycle seized from the accused Rajesh were containing sand particles which matched the sand particles seized as a sample from the spot of incident. It could thus be seen that the prosecution has also established beyond reasonable doubt that the incriminating material which was seized at the instance of accused No.1 Rajesh on a memorandum under Section 27 matches with the DNA profile of the deceased Yug, so also the sand seized from the spot where the dead body was concealed.

Motive

64. From the material placed on record, it appears that it is the case of the prosecution that there was two-fold motive in commission of the crime, one to take revenge against Dr. Chandak who had accosted him for taking more money from the patients and secondly to demand ransom after kidnapping the child.

65. Insofar as the first motive is concerned, PW1 Dr. Chandak himself has stated that father of his patient Manish Machale had informed him that the accused used to charge more than the instructed by him for treatment on two occasions. He disclosed about the mischief of accused no.1 Rajesh on telephone. Therefore, he requested the complainant Machale to visit his clinic for verification on the given date. Machale did not attend the clinic on the given date. Therefore, he called accused no.1 Rajesh and asked him for what reason he charged Rs.100/- more from the patient Machale. The accused did not accept his mischief and claimed innocence. He asked to confront with the patient Machale on the following day.

Thereafter on the next day patient Machale came to his clinic and accused no.1 Rajesh did not attend the duty on that day and later on he stopped attending the duty at his clinic. He has stated that since the accused had left his employment without giving intimation to me, he could not collect the red colour T-shirt given to him as an uniform of his clinic. He states that since then the uniform of the clinic i.e. read colour T-shirt was with accused Rajesh only. The evidence of PW1 in this regard is corroborated by the testimony of PW6 Naresh Machale.

66. Insofar as the second motive is concerned, it will be relevant to refer to the evidence of PW19 Sonam Meshram. She states in her evidence that she was in relationship with the accused no.1. She further states that prior to 6-7 months, she along with the accused, her friend Shreya Manohare, her boy friend Sandeep Katre and another friend Sonal Kamble, her boy friend Darshan, her friend Ashiwini and two sisters had been to picnic in Tata-Sumo jeep to Ramtek-Khindsi. She further states that in the evening they went to village Sawari at the house of grandmother of accused Rajesh. She further states that she and accused Rajesh always used to go for roaming on his black colour motorbike having registration No. MH- 49-0570. Occasionally her friend Shreya Manohare also used to come with them. She states that once they were going to Adasa temple via Koradi road. Accused Rajesh had taken her on his motorbike from the road of village Patansawangi to Lonkhairi for going to Adasa temple. However, when they went towards village Chanpa, the villagers told that it was not the road for going to Adasa and, therefore, they returned back upto one rivulet. Accused Rajesh stopped the bike and went under the bridge for answering nature''s call. While returning, accused Rajesh took the left turn on the road and proceeded towards the bridge where he stopped the bike for nature''s call.

She states that in the month of February 2014, the accused told her that he joined the clinic of Dr. Chandak and he was getting Rs.8000/- to Rs.10,000/- per month from Dr. Chandak''s clinic. He also told her that he was getting an extra income of Rs.100/- to Rs.200/- from the patients. She further states that accused Rajesh gifted her one cell-phone for her use and he was paying Rs.100/-, for her pocket expenses on his every visit. She has further stated that on some occasions his friend accused Arvind Singh also accompanied him while visiting her hostel. She has stated that accused Rajesh had given introduction of accused Arvind as his friend. She has also identified accused no.2 Arvind in the Court.

She has further deposed that on 15.8.12014 there was a holiday to her college and,therefore, both of them had come for roaming to Ramtek and they halted in one lodge at Ramtek. That time madam Dr. Chandak had called him but he did not attend the call. On being asked why he was not attending Dr. Chandak''s call, accused Rajesh told her that he had already left the job of Dr. Chandak as he was paying meager salary of Rs.3000/- and asked to do lot of works for him. He had hurled abuses to Dr. Chandak and uttered that he would see and teach him lesson (Usko to mai dekh lunga and sabak sikhaunga). At that time accused Rajesh proposed her for marriage. She asked Rajesh that when he had already left the employment, how he would bear the expenditure of Rs. 2 lacs to be incurred for her training of Nursing Course. Rajesh told her not to worry about the money as he was going to do one big work and thereafter he will earn huge money. He had also disclosed that he would purchase four wheeler, set up a beer-bar as well as construct own house. On being asked about his big task, he told her that he was planning to abduct the son of rich person.

In her cross-examination, it has been brought on record that though she cannot tell the name of bridge or Nullah where accused had parked his motorbike for nature''s call, there was one village located on the hillock nearby the spot of bridge and its name was something like Babulkheda. Incidentally it is to be noted that the bridge beneath which the dead body of the deceased was concealed is the bridge at Babulkheda. Though this witness has been thoroughly cross-examined, nothing damaging has come on record.

67. PW.8 is Sandip Katre. The evidence of this witness is at Exh.44. He was pursuing B.C.C.A degree and was also employed as Computer Operator in Sahara India Co-operative Society, Kamptee Road, Nagpur. He states that he was acquainted with Sonam Meshram as she was the friend of his girl friend Shreya Manohare PW19. He was also acquainted with Rajesh Daware since he was the boy friend of Sonam Meshram. He has corroborated the version given by PW19 Sonam regarding picnic to Navegaon Bandh, so also he and the accused Rajesh going for roaming along with their girl friends. He has given the number of the mobile of the accused as 9595663961. He has stated that accused Rajesh had an aspiration to become a reach person as early as possible and he was in hurry to be an affluent person.

He has also given narration regarding the accused Rajesh asking him to make inquiry as to when and in what manner his employer carries the cash from the office as there was always huge cash in his office. He has also narrated the plans of accused Rajesh for looting the amount from the employer of this witness. He has also narrated that an attempt made by the accused Rajesh, his friend Arvind and other two friends failed. He has further stated that one day accused Rajesh, accused Arvind and other two friends were present at the Pili river. He disclosed that there was new plan in his mind as he did not get help to materialise his earlier plan. He explained that he was intending to kidnap a boy for ransom whose father was an affluent person. He has also stated to this witness that he would get huge amount after the plan of kidnapping. On being inquired as to who was the boy to be kidnapped, accused Rajesh told that he would tell the name subsequently. He further disclosed that kidnapped boy would be kept at his house under the surveillance of his younger brother Ankush. He states that after hearing all this, the friends of the accused viz. Vikas and Shubham opposed to such a plan. He states that on 30.08.2014 he received call from accused on his Cell Number 9595517745 seeking assistance to do the task of kidnapping on 1.9.2014. Since he refused to do so, accused hurled abuses on him. He further states that on his coming to know about Dr. Chandak''s son being kidnapped, he informed about the same to Dr. Chandak. In spite of thorough cross-examination, nothing damaging has come on record.

68. It could thus be seen that the prosecution has proved that accused Rajesh was annoyed since he was accosted on account of taking more money from the patients of Dr. Chandak. It could also be seen from the evidence of PW19 Sonam Meshram that the accused was also annoyed since Dr. Chandak was giving him a meager salary of Rs.3000/- and asked to do a lot of work for him. He had also told her that he would see and teach him lesson. The prosecution has also proved that the accused had planned to kidnap a son of wealthy person for ransom. The evidence of PW8 Sandip Katre fully establishes that the accused no.1 not only intended to kidnap a son of wealthy person but had also earlier made criminal plans to loot the amount of the employer of the said witness while the employer would return from his office.

Telephone calls and call detail reports

69. The main attack on behalf of the defence is that the mobile numbers which are alleged to have been used by the accused are not in the name of the accused and the prosecution has failed to establish as to how the accused have come in possession of the said SIM cards which are not in their name.

The handset along with the SIM cards have been seized from the accused on a seizure panchanama below Exhs.38 and 39 which are duly proved in the evidence of PW4.

70. Accused no.1 in his statement under Section 313 of Cr.P.C. has been put question no. 146 with regard to the evidence of PW8 Sandeep Katre that it has come in the evidence of this witness that at the relevant time the said accused was using the mobile phone in his custody with cell No. 9595663961. He has admitted the same to be true. A similar question has been put at question no.230 with regard to the evidence of PW14 Pranay, again the accused has admitted the same to be true. A similar question at Sr. no. 387 has been put with regard to the evidence of PW24 Dharmendra Yadav, again he has admitted the same to be true.

71. The prosecution has examined PW39 Suresh Pande whose evidence is at Exh.170. He states that from 2007 he came to Nagpur for doing the rituals in the temple of Lord Hanuman, located at Mankapur, Nagpur. He further states that in the year 2009 there was an election in the Nagpur City. Therefore, his one disciple asked him to prepare his voter identity card, which he accordingly prepared.

He states that he was acquainted with the father of accused no.2 since he was his devotee. He disclosed to him that he wanted to purchase SIM card for his cell phone but he had no requisite documents for purchasing the same. He states that thereafter he had given him his voter identity card. Both went to the shop known as " J.S. Electricals and Electronics and purchased a SIM card having number as 9545967084. He states that though it was purchased in his name, it was for the use of Abhilashchandra Singh, the father of accused no.2. Nothing damaging has also come in the evidence of this witness.

72. PW.44 is Narendra Bagde. He is an Assistant Professor in P.W.S. Arts and Commerce College, Nagpur. He has stated that in the month of June, 2014, accused no.2 Arvind Singh submitted an application for his admission to B.Com 2nd Year course. The application form of the accused Arvind Singh is exhibited in his evidence at Exh.195. It is pertinent to note that the telephone number given in the said application of the accused no.2 is 9545967084. A question is put to this accused in his statement under Section 313 of Cr.P.C. with regard to the evidence of PW44 Narendra Bagde regarding his admission in the P.W.S. Arts and Commerce College, Nagpur. He has admitted the same to be true. As such it may be seen that on his own showing while seeking admission in the College, accused no.2 has given his telephone number as 9545967084.

73. No doubt that the conviction solely on the basis of statement under Section 313 would not be sustainable. However, it would be relevant to refer to the judgment of the Hon''ble Apex Court in the case of Ashok Debbarama @ Achak Debbarama v. State of Tripura reported in AIR 2014 SC (Supp) 1434 have considered the legal position with regard to purpose of statement made under section 313 of the Code of Criminal Procedure. It is observed thus :

74. It could thus be seen that Their Lordships of the Apex Court have held that though no conviction solely on the basis of statement under section 313 of the Code of Criminal Procedure can be made, however, the statement made by the accused under section 313 of the Code of Criminal Procedure can certainly be taken aid of to lend credence to the evidence led by the prosecution. In view of this, we find that the circumstance that accused no.1 was using cell number 9595663961 and accused no.2 was using cell number 9545967084 at the relevant time can very well be used to give credence to prosecution case.

75. From the evidence of PW.32 Vicky Shah, it would reveal that when juvenile-in-conflict with law Ankush was apprehended, a mobile of Micromax Company and three SIM cards came to be seized. One of the SIM card was bearing number 7745855431. From the evidence of PW46 Dattaram Angre, it would reveal that said SIM card was in the name of the mother of accused no.1 Rajesh and juvenile-in-conflict with law Ankush, namely Bhumeshwari Daware.

76. In this factual background, we will consider material in support of this circumstance. It will be appropriate to refer to the judgment of the Apex Court in the case of Mohd. Arif @ Ashfaq v. State (NCT of Delhi) reported in (2011) 13 Supreme Court Cases 621, which is a case pertaining to Red Fort attack. Their Lordships observed in paragraph 60 thus :

77. We may also gainfully refer to the observations of the Apex Court in the case of Gajraj v. State (NCT of Delhi) reported in (2011) 10 Supreme Court Cases 675. Their Lordships observed in paragraph 16 thus :

From the aforesaid judgments of the Apex Court, it would be clear that every mobile handset has an exclusive IMEI number. No two mobile handsets have the same IMEI number and every time a mobile handset is used for making a call, besides recording the number of the caller as well as the person called, the IMEI numbers of the handsets used are also recorded by the service provider. It is to be noted that the mobile service is operated through a main server computer called mobile switching centre which handles and records each and every movement of an active mobile phone like day and time of the call, duration of the call, calling and the called number, location of the subscriber during active call and the unique IMEI number of the instrument used by subscriber during an active call. This mobile switching centre manages all this through various subsystems or sub-stations and finally with the help of telephone towers. These towers are actually base transreceiver stations also known as BTS. A mobile continuously selects a cell and exchanges data and signalling traffic with the corresponding BTC. It could thus be seen that the Apex Court has held that through a cell ID the location of the active mobile instrument can be approximated.

78. In the light of this position, we will be referring to the various call data records. The said CDRs are duly exhibited in the evidence of PW37 Fransis Patric Farera a Nodal Officer of Vodafone Cellular Company, PW40 Chandrakant Bhor a Nodal Officer of Reliance Communication Ltd. and PW46 Dattaram Angre, a Nodal Officer of the IDEA Cellular Ltd. Needless to state that all are CDRs are supported by the certificates issued under Section 65-B of the Evidence Act, by these witnesses which satisfy the requirement of the said section. Needless to state that the CDRs are given on the basis of the mobile numbers as well as the IMEI. We are placing on record the CDRs of both the accused independently showing calling party, date, time, duration, location and the receiving party along with the endorsement as to which witness has proved the same.

Call details of accused No.1 - Rajesh (Mob. No. 9595663961)

Call details of accused No. 2 - Arvind (Mob. No. 9594967084)

87. It could thus be seen that Their Lordships have held that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct or by circumstantial evidence or by both. It has been further held that it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. In the present case it can be seen from the evidence of PW8 Sandip Katre that both the accused had conspired to kidnap the child of an affluent person, they also wanted the said witness and two other friends to join the said criminal act. However PW8 Sandip Katre and other two friends refused to join the said conspiracy. Evidence of PW2 Rajan Tiwari would also reveal that both the accused had come together to kidnap the deceased and while returning all the three went together. The evidence of PW.2 Rajan read with evidence of PW.9 Divya Chandel corroborated by PW.11 Namdeo, PW.10 Shriram and the scientific evidence of the CCTV footage would also reveal that the accused persons were together from around 4-4.15 to 6 p.m. Not only that but the CDR of the mobile number of both the accused at around 4.12 p.m. show their location at the same spot. In that view of the matter from the circumstances which are proved before, during and after the occurrence, we are of the considered view that it can safely be inferred that both the accused had conspired to kidnap the deceased with an intention to either threaten to cause death or hurt to kidnapped person or to cause hurt or death to the deceased in order to compel the first informant to pay ransom.

88. In that view of the matter, after considering the material placed on record, we are of the considered view that the prosecution has proved beyond reasonable doubt that :

89. We are of the considered view that the chain of circumstances proved beyond reasonable doubt by the prosecution, is so interwoven to each other, that it leads to no other conclusion than the guilt of the accused. We are of the considered view that every hypothesis except the guilt of the accused is ruled out in the present case. We are, therefore, of the considered view that the conviction awarded by the learned trial Judge for the offence punishable under Sections 364-A read with 34, 302 read with 34, 120-B and 201 read with 34 of the Indian Penal Code warrants no interference.

Sentence

90. After having held that the accused are guilty of the offences punishable under Sections 364-A, 302, 120-B and 201 r/w. Section 34 of the Indian Penal Code, the question now that we are called upon to answer is as to whether the death penalties for the offences punishable under Sections 364-A and 302 of the Indian Penal Code need to be confirmed or whether some other penalty is to be imposed on the appellants/accused herein.

91. We have extensively heard Mrs. Bharti Dangre, learned Public Prosecutor for the State and Mr. Mir Nagman Ali, learned Counsel and Mr. Thakur, learned Counsel for the appellant/accused.

92. Mrs. Bharti Dangre, learned Public Prosecutor submits that the present crime squarely fits in the category of ''the rarest of the rare''. She submits that the unsuspecting innocent child has been done away to death for no fault of his, only for the sake of greed of money. She submits that, for no rhyme and reason, the child was killed in a brutal manner and his body was concealed in the rivulet underneath the bridge. She further submits that, even after killing the child, the accused have demanded ransom from the first informant. She submits that the accused have no value for human life. It is submitted that, looking into the mental set up of the accused, it is impossible that they would reform or rehabilitate. It is submitted that their conduct is such which explicitly shows that they are menace to the Society. It is, therefore, submitted that the Court, considering this to be the rarest of the rare case, should confirm the death sentence.

93. As against this, Mr. Mir Nagman Ali, learned Counsel for the accused submits that the accused are young in age. It is submitted that there is every possibility that the accused did not intend to cause death of the deceased. It is further submitted that the intention of the accused might have only to make an easy money and by an accident, the death might have occurred. Mr. Mir Nagman Ali, learned Counsel submits that the prosecution has failed to place anything on record to show that the accused were beyond reform or rehabilitation. Mr. Ali, learned Counsel further submits that the academic career of accused no. 1 has been brilliant. He has throughout done fairly well in SSC, HSC and Graduation examinations. He submits that, not only that, but accused no.1 also intended to appear in the UPSC examination. It is submitted that the appellants come from a poor socio-economic strata. It is submitted that all these are mitigating circumstances and as such, leniency is required to be shown to the accused and the death sentence be commuted to life imprisonment. Mr. C.R. Thakur, learned Counsel for accused No.2 adopted the arguments advanced by Shri Mir Nagman Ali, learned Counsel for accused No. 1.

94. Both � the learned Public Prosecutor as well as the learned Counsel for the accused, have placed on record voluminous Judgments supporting the propositions advanced by them.

95. The law as to in what circumstances death penalty would be warranted or not, has been succinctly laid down by the Constitution Benches of Their Lordships of the Apex Court in the cases of Jagmohan Singh v. State of Uttar Pradesh reported in 1973 (1) SCC 20, Bachan Singh v. State of Punjab reported in 1980 (2) SCC 684 and also of the Bench of three Hon''ble Judges in the case of Macchi Singh and Others v. State of Punjab reported in 1983 (3) SCC 470. Since then, there are various judicial pronouncements by the highest Court of the Country, further explaining the legal position. Recently, in the case of Shabnam (cited supra), Their Lordships have again reiterated the legal position. It will be appropriate to re-produce paragraph nos. 24 and 25 of the said Judgment. They are thus :

"Aggravating circumstances :

96. It could thus be seen that Their Lordships have held that most significant aspect of sentencing policy in Indian Criminal Jurisprudence regarding award of death penalty, is that life sentence is a rule and death sentence is an exception only to be awarded in "the rarest of the rare case". It has further been held that 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.

97. It could further be seen that the Apex Court has culled out various aggravating circumstances and mitigating circumstances. The principles have been laid down by the Apex Court requiring the Court to apply the test to determine, if it was the ''rarest of the rare'' case for imposition of death sentence. The Court must come to the conclusion that imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice. It has further been held that the death sentence should be imposed when 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 relevant circumstances. It has been further laid down that the Court should take into consideration the method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.

98. In the light of these guiding principles, we will first consider the aggravating circumstances and mitigating circumstances as culled out by Their Lordships in the case of Shabnam v. State of Uttar Pradesh, 2015 (6) SCC 632 (cited supra).

Aggravating Circumstance No. 1 : There is no prior record of conviction for capital felony or record of accused having substantial history of serious assaults and criminal convictions. As such, aggravating circumstance no.1 would not be available in the present case.

Aggravating Circumstance No. 2 : It can be seen from the material placed on record that the accused had engaged in the serious crime punishable under Sections 363/364-A of the Indian Penal Code and at that time, they have caused death of deceased which is punishable under Section 302 of the Indian Penal Code. As such, aggravating circumstance no. 2 would be available in the present case.

Aggravating Circumstance No. 3 : There is no evidence that the offence was committed in a public place by weapon or device which clearly could be hazardous to the life of more than one person. As such, circumstance no.3 is also not available in the present case.

Aggravating Circumstance No. 4 : As already held by us, the offence was committed with a motive to get ransom or to receive money or monetary benefit. As such, circumstance no.4 would be available in the present case.

Aggravating Circumstance No. 5 : The present case is not the case of hired killing and as such, circumstance no.5 would not be available.

Aggravating Circumstance No. 6 : As held by us, the offence was committed outrageously only in order to take revenge against the first informant and with an intention to receive huge amount from him.

The mental torture and inhumane treatment through which the deceased must have gone after he was kidnapped cannot be described in words. The approach of the accused has been totally inhumane and as such, circumstance no. 6 would be fully available in the present case.

Aggravating Circumstance No. 7 : Since the appellants were not in lawful custody of the minor child, circumstance no.7 would not be available.

Aggravating Circumstance No. 8 : Since this is not the case where the murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody, circumstance no.8 would also not be applicable.

Aggravating Circumstance No. 9 : Circumstance no.9 is also not available inasmuch as this is not the case of an attempt to murder the entire family or members of a particular community.

Aggravating Circumstance No. 10 : It is the prosecution case, which we find is fully established that, by wearing the uniform of clinic of father of victim by accused no. 2, the victim was made to believe that accused no. 2 was an employee of his father and that he was called in the clinic and under such belief on the said representation, the victim was kidnapped and murdered. As such, circumstance no.10 would be fully available in the present case.

Aggravating Circumstance No. 11 : As already held herein above, the helpless child was made to believe that an employee of the clinic had come to pick him up for taking him to the clinic and thereafter, he was kidnapped and for no fault of his, was done to death by smothering only in order to take revenge against his father and for seeking a huge money in ransom. We find that the murder is committed for a motive which evidences total depravity and meanness. As such, circumstance no. 11 is also fully available in the present case.

Aggravating Circumstance No. 12 : Leave aside the aspect of there being any provocation, but, only in order to become rich overnight, life of a young boy was nibbed in bud in a manner which shows no respect for human life. Not only that, but his dead body, after removing his T-Shirt so that his identity becomes difficult, was concealed in a rivulet under the bridge covered with sand and bolder. Hence, we find that circumstance no.12 is also fully available in the present case.

Aggravating Circumstance No. 13 : It will not be out of place to state that, after the crime was noticed, it shocked the conscience of entire society and there was an uproar in the region. It could be seen from the record that the defence itself, in the evidence of PW.9 has brought on record the newspaper report of the relevant period which show that there was a hue and cry in the society. The newspaper report which has been brought on record at the instance of the accused would show that anticipating overall discontent from public at large about the said incident, the police had apprehension that the people may attack the accused in the Court premises and as such, both the accused were taken to Court at 1.30 p.m. Before producing the accused before the Court, the mob gathered in the Court was moved out of the Court premises. Apprehending danger, the door of the Court was closed soon after the accused entered the Court. It could thus be seen that the sentiments of the society had reached its peak due to the horrifying act of the accused. As such, circumstance no. 13 would also be available in the present case.

99. Let us now examine as to what are the mitigating circumstances in the instant case.

Mitigating Circumstance No. 1 : In the present case it is not as if that the offence was committed by the accused in extreme mental or emotional disturbance or extreme provocation. On the contrary, the evidence on record shows that the accused persons had conspired and planned to carry out kidnapping of the victim for taking revenge against the first informant and to become rich overnight by demanding a huge ransom. The evidence of Sonam Kevalram Meshram (PW-19) and Sandeep Kisanlal Katre (PW-8) fully establishes this fact. As such, the said circumstance is not available in the present case.

Mitigating Circumstance No. 2 : Insofar as circumstance no.2 is concerned, though the age of the accused is a relevant consideration, but not a determinative factor by itself. The Apex Court in the case of Dhananjoy Chatterjee @ Dhana v. State of West Bengal, (1994) 2 SCC 220 has found that though the accused was of young age, the said cannot be a mitigating circumstance in his favour. As such, though the accused are of young age, looking at the nature of crime and method and manner in which it is committed by the accused, it cannot be said that the said circumstance would be in their favour.

Mitigating Circumstance No. 3 : Perusal of evidence of Sonam Meshram (PW-19) and Sandeep Katre (PW-8) would reveal that the mindset of accused in the present case was of criminal nature. The evidence would show that the accused were willing to go to any extent to become rich. Not only that, but the accused had also instigated Sandeep Katre (PW-8) and other friends to join them in the commission of crime. We are, therefore, of the considered view that, in the present case, the chances of the accused not indulging in commission of such crime again are very remote and the probability of the accused being reformed and rehabilitated is very less. As such, the 3rd circumstance is also not available.

Mitigating Circumstance No. 4 : There is no material placed on record that the accused were mentally defective and the defect impaired their capacity to appreciate the circumstances of their criminal conduct. As such, said circumstance no.4 would not be available.

Mitigating Circumstance No. 5 : It is not anybody''s case that the accused were subjected to persistent harassment leading to such peak of human behaviour that, in the facts and circumstances of the case, the accused believed that they were morally justified in committing the offence.

As a matter of fact, very recently i.e. on 25.4.2016, in Criminal Confirmation case No. 2 of 2015 with Criminal Appeal No.43 of 2016, State v. Imdad Ali Waid Ali Sayyad, we have considered a case of the convict therein, who was also awarded death penalty by the learned trial Court. We have found that there were possibilities of the convict therein committing the crime on account of continuous humiliation faced by him, due to desertion by his wife and she marrying a man of much younger age without divorcing the convict and we had, therefore, found that the convict therein was entitled to benefit of mitigating circumstance nos.1, 4 and 5.

In the present case, there is no provocation. The helpless unsuspecting innocent child is kidnapped and murdered. As such, circumstance no.5 would not be available.

Mitigating Circumstance No. 6 : From the material placed on record, there is no scope to come to the conclusion that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of primary crime. The evidence clearly goes to establish that the accused had planned to commit the crime and had also planned a Scheme in meticulous manner and executed the same. As such, this circumstance would also not be available.

Mitigating Circumstance No. 7 : In the present case, it is not as if the conviction is being based only relying on the testimony of sole eye witness. As a matter of fact, in the case of State v. Imdad Ali Waid Ali Sayyad (cited supra), which we have decided on 25.4.2016, we have found that the conviction therein largely was based on the evidence of sole eye witness and therefore, we have commuted the death sentence to 30 years'' life imprisonment without remission, prior to his case being considered for premature release.

Such is not the case here. The prosecution, on the basis of circumstances which are proven beyond reasonable doubt, has fully established the case that the accused had preplanned the crime and executed the same.

100. As such, we find that, in the present case, seven aggravating circumstances i.e. aggravating circumstances nos. 2, 4, 6, 10, 11, 12 and 13 are available; whereas none of the mitigating circumstances is available. As such, even giving full weightage to the mitigating circumstances, balance sheet of the aggravating circumstances and mitigating circumstances fully tilts in favour of the aggravating circumstances.

101. With regard to the submission of Mr. Mir Nagman Ali, learned Counsel for the appellants that, since the accused are young in age and that one of the accused is having a brilliant academic career, the same should be considered as a mitigating circumstance, we find that the said submission is without substance. As already discussed herein above, in view of the law laid down in the case of Dhananjoy Chatterjee @ Dhana (cited supra), merely because the accused is of young age, it cannot be said to be a mitigating circumstance. With regard to the other submission regarding good academic career of the accused, we find that the said circumstance would rather than being a mitigating circumstance, would be an aggravating circumstance. We could understand such a crime being committed by an illiterate person. But, when a person who is educated and aware of the ramifications of such crime commits such a crime in a broad day light with a meticulous planning and executes the same, in our view, it could aggravate the circumstance rather than mitigate the same.

102. Applying the principles as laid down by the Apex Court in the case of Shabnam (cited supra), we are of the considered view that the instant case is the rarest of rare case for imposition of death sentence. In our considered opinion, imposition of other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice. We are conscious that life imprisonment is the rule and death sentence is exception. However, taking into consideration the enormity and brutality of the crime, we find that, in the facts and circumstances of the case, imposition of death penalty, which is an exception, is a just sentence. For the same reason, we find that the option to impose sentence of life imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances. Applying the fifth principle, we find that the method and manner in which the crime was committed and the circumstances leading to commission of such heinous crime also warrant death penalty. At the cost of repetition, we state that the accused persons had planned in advance to commit the crime. As planned, they also executed the plan in meticulous manner and the unsuspecting child was misled that he was called in his father''s clinic and thereafter, he was kidnapped and brutally murdered and his body was concealed beneath a bridge.

103. Though reliance is placed by both the sides on various cases, we do not wish to burden the Judgment with all of them. We will restrict ourselves to refer to the Judgments of Their Lordships of the Apex Court which are nearer to the facts in the present case.

104. Somewhat identical facts came up for consideration before the Bench of three Hon''ble Judges of the Supreme Court in the case of Henry Westmuller Roberts v. State of Assam reported in (1985) 3 SCC 291. The three accused therein namely Henry, Sunil and Naresh were employees of the Oil and Natural Gas Commission (ONGC) at Sibsagar in Assam. The fourth accused namely Anil was a Mohurrir under a Contractor of the ONGC at Sibsagar. The four accused entered into a conspiracy to kidnap minor children at Sibsagar, Dibrugarh and Tinsukhia with a view to extract ransom.

One Chabil Prasad Agarwala (PW-23) was doing business in foodgrains in a shop at Siding Bazar, Tinsukhia situated in Dibrugarh district. He was living in a dwelling house situated adjacent to his shop with his wife and seven children including deceased Sanjay. There was a day-long ''Holi'' festival on 26th March, 1975 at Shiva Temple. Two accused had come there. A number of children including deceased Sanjay were also present in the pendal erected for the festival playing with other children. Accused Henry came and watched the play and remarked that Sanjay was playing well.

Sanjay''s elder sister came to the pendal in search of Sanjay since their mother had asked her to get Sanjay back at home. Henry called Sunil and asked him to bring chocolates. When deceased Sanjay and his sister were moving away from the pendal, Henry called deceased Sanjay and asked him to come saying that he would give him chocolates. Thereafter, deceased Sanjay stayed behind after telling his sister that he would come a little later. Sunil brought chocolates which Henry distributed to the children. Deceased Sanjay did not return home. A frantic attempt was made to make search; however, the deceased was not found and as such, his father lodged the First Information Report. Thereafter, a message came on telephone at the father''s shop demanding ransom of Rs. 3,00,000/- for return of Sanjay. Thereafter, by various modes, the demands for ransom were made. Noticing the number of public call office from where the calls were made to the father of deceased Sanjay, the police had deployed some plain-clothed police personnel at the Digboi public call office.

After obtaining confirmation about the booking of call from the telephone office employee, said Henry was apprehended for his interrogation. He confessed of committing the crime. The said case was also a case of circumstantial evidence. The learned trial Judge sentenced accused Henry and Sunil to death. In the Confirmation case, the High Court upheld the death sentence. While upholding the death sentence awarded to Henry, Their Lordships of the Apex Court observed thus :

105. In the case of Sunder @ Sundararajan v. State reported in 2013 LawSuit (SC) 105, deceased Suresh, aged seven years, who was living with mother namely Maheshwari (PW-1), left the residence in the morning of 27th July, 2007 to attend his School at a taluka place. As a matter of routine, Suresh used to return along with other students at 4.30 p.m. However, on the said date, since he did not return, his mother got worried and she made inquiry with other students who used to travel to the School along with deceased Suresh. On inquiry, she came to know that a man was waiting alongside a motor cycle when the School Van returned to the village on the same day. The man told Suresh that he had been asked by his mother to bring him to the hospital. Based on the said assertion, Suresh accompanied the man on his motor cycle.

Accordingly, the mother lodged complaint with Police Station. In the night of the same day, the mother received a call on her mobile phone from one Shankar demanding ransom of Rs.5,00,000/- for release of Suresh. The mother rushed to the Police Station and informed the Police about the same. The accused were apprehended, who made confessional statements to the effect that they strangulated Suresh when ransom was not paid for his release. They had put the dead body of Suresh in a gunny bag and thereafter they had thrown it in the Meerankulam tank. Accordingly, the dead body of Suresh was found in a gunny bag which had been fished out of the said tank. The learned trial Judge had convicted the accused for the offences punishable under Sections 363, 302 and 201 of the Indian Penal Code and awarded death penalty. The High Court confirmed the death sentence. It will be relevant to reproduce paragraph nos. 30 and 31 in the Judgment of the Apex Court in appeal by the appellants. They read thus :

106. It could thus be seen that the facts in the said case are almost identical to the facts in the present case. We find that the observations made by Their Lordships of the Apex Court herein above fully apply to the present case, with the same rigour.

107. It will also be relevant to refer to the Judgment of Hon''ble three Judges of the Apex Court in the case of Vikram Singh @ Vicky and another v. Union of India and Others reported in 2012(1) SCC 406. In the said case, the appellants were also convicted and sentenced to death for commission of offences punishable under Sections 302, 364-A of the Indian Penal Code. The conviction and sentence awarded to them was confirmed by the High Court of Punjab and Haryana and also by the Apex Court. The appellants filed a Writ Petition for declaration that Section 364-A of the Indian Penal Code was ultra vires the Constitution to the extent the same prescribes death sentence for any one found guilty and as such, a prayer was made for quashing the death sentence confirmed by the High Court as well as the Apex Court. The Writ Petition filed before the Apex Court was withdrawn with liberty to the petitioners to approach the High Court. The appellants before the Apex Court thereafter approached the High Court by way of Writ Petition. The High Court dismissed the Writ Petition. After dismissal of the petition by High Court, they approached the Apex Court. It will be appropriate to refer to the following observations of the Apex Court, which are thus :

108. It could thus be seen that Their Lordships, while refusing to interfere with the death sentence already confirmed by the Apex Court in its earlier Judgment in the case of Vikram Singh and Others v. State of Punjab, have held that the death may be awarded only where kidnapping and abduction has resulted in the death either of the victim or any one else in the course of commission of offence. We are, therefore, of the considered view that the death sentence awarded in the present case warrants no interference.

109. Mr. Mir Nagman Ali, learned Counsel for accused no.1 has referred to various Judgments of Their Lordships wherein the death penalty has not been imposed by Their Lordships of the Apex Court and the sentence is commuted to life imprisonment. No doubt that there are various Judgments of Their Lordships either confirming the death sentence or commuting the same to life imprisonment. However, each case has been decided on the facts of each case. We would not make the Judgment bulkier by referring to each and every Judgment cited on behalf of either the prosecution or the defence as already discussed herein above. We have herein above referred to the Judgments of the Hon''ble Supreme Court which are nearer to the facts of the present case. Some of the Judgments which have been cited by the learned Counsel for the defence have been considered by Their Lordships of the Apex Court in the case of Vikram Singh and Others v. State of Punjab reported in 2010 (2) SCC 47. It will be appropriate to refer to paragraph nos. 28 and 29 of the said Judgment. They are thus :

110. Perusal of the afore-said Judgment of the Hon''ble Supreme Court reveals that what is most relevant is the balance sheet of aggravating and mitigating circumstances. We have drawn an elaborate balance sheet of the aggravating and mitigating circumstances. At the cost of repetition, we may state that, out of the thirteen aggravating circumstances, seven are available in the present case. As against this, none of the mitigating circumstances is available. The balance sheet of aggravating and mitigating circumstances fully tilts in favour of the aggravating circumstances. In that view of the matter, we find that the present case deserves to be treated as the ''rarest of the rare case''.

111. The Apex Court in various cases has held that the rarest of rare test depends upon the perception of the Society i.e. the approach should be "society-centric" and not "judge centric". The test has to be applied as to whether the society will approve the awarding of death sentence to the crime in question or not.

112. In the case of Macchi Singh and Others v. State of Punjab reported in 1983 (3) SCC 470, Their Lordships of the Apex Court observed thus :

113. As such, while deciding the present case, we will have to keep ourself aloof from our personal opinion as regarding the desirability or otherwise of retaining death penalty. What is required by us, is to decide as to whether in the perception of the society at large, the present case is a case which can be considered as rarest of rare case warranting death sentence.

114. We may gainfully refer to the words of Lord Denning, which have been quoted by Their Lordships of the Apex Court in the case of Deepak Rai v. State of Bihar reported in (2013) 10 SCC 421, on the very purpose of imposition of a punishment. They are thus :

115. It will also be appropriate to refer to the observations of the Apex Court in the case of Dhananjoy Chatterjee @ Dhana (cited supra). They are thus :

116. As such, we will be required to consider as to whether the present crime is of such a nature that the society insists of adequate penalty of death or not. In other words, we will have to consider as to what is the sentence that the society demands to be awarded in the facts and circumstances of the present case.

117. In the background of these principles, we will have to examine the facts and circumstances of the present case.

Accused no.1 Rajesh was employee with Dr. Mukesh (PW-1). He became acquainted with the sons of Dr. Mukesh since the children used to come to the Clinic. On one occasion, there was also an alteration between him and the deceased since the deceased was playing on the Computer at the reception counter, which was operated by accused no.1. He had slapped the child. Dr. Mukesh (PW-1) gave him understanding not to repeat such things. Accused no.2 was also charging excess amount from the patients of Dr. Mukesh. One of the patients complained about this to Dr. Mukesh. On being accosted about the same, he discontinued the job. However, while doing so, he did not return the red coloured T-Shirt of "Status quo" Company which was given to him as a part of uniform of Clinic. Being acquainted with Dr. Chandak''s family, accused no.1 was aware of the timings at which his children return from the school. He was also aware that, at times, the employees of the clinic used to bring the children to the Clinic. Aware about all these facts, accused no.1 hatches a conspiracy with accused no.2; wherein accused no.2 is to wear the red T-shirt so as to give the an impression to the unsuspecting minor child that he is employee of the clinic. They also tried to rope some other persons including Sandeep Katre (PW-8) in the conspiracy. However, on their refusal, both the accused decided to commit the crime themselves and meticulously executed the plan. Both the accused arrive at the spot where the minor child was to alight from the bus. Accused no.1 stands at some distance and sends accused no.2, who was wearing red T-shirt, on Scooty to the spot, where the deceased was to alight from the School bus. The unsuspecting child, considering accused no.2 to be the employee of his father''s Clinic, innocently goes along with him on the Scooty. Accused no.1 joins them. They go to the house of accused no.1, change the vehicle and, on a motor cycle, they travel on the highway and thereafter, take the child in the interiors. The unsuspecting child is done away to death by smothering. They remove his T-shirt so that identification of the deceased becomes difficult. They conceal his body beneath a bridge wherein normally nobody goes. The accused no.1 is aware about the said spot, as could be seen from the testimony of Sonam Meshram. They put a bolder on his face and cover the body with the sand. Thereafter, they also have an audacity of demanding ransom from the first informant, after killing his son.

118. Are these circumstances such where the Society would expect us to take a lenient view. Would the Society expect of us to show leniency in favour of the persons who had kidnapped the unsuspecting innocent child and nibbed his life in the bud before permitting it to flower. Would the Society expect the holders of judicial power centre to leave the persons with normal life imprisonment, who tortured the minor child and the entire family only in order to become rich overnight,. It will not be out of place to mention that, after the incident had occurred, conscience of the Society in the entire region was shocked. There was an uproar in the entire region and a sort of fear psychosis in the Society. The mothers were afraid of sending their children to Schools. They were under an apprehension as to whether their children having gone to School would return home alive or not. The entire region witnessed agitations, processions and candle marches shocked by the grueling event. Does the collective conscience of the Society expect of the judicial power centre to ignore all these aspects.

119. We are of the considered view that the collective conscience of the Society demands that a message be penetrated that such an abhorrent act would not be tolerated by the Society and the persons indulging in the such heinous act must be dealt with sternly. We have no hesitation to hold that the Society demands that this case be treated as "the rarest of the rare case" and death penalty be imposed upon the accused herein.

120. In the result, the reference made by the learned Sessions Judge in Criminal Confirmation Case No. 1 of 2016 is answered in the affirmative. The death penalties imposed by the learned Sessions Judge for the offences punishable u/ss. 364-A and 302 of the Indian Penal Code are confirmed. The appeals of the accused are dismissed.

121. We place on record our appreciation for the valuable assistance rendered by the learned Public Prosecutor and the learned Counsel for the appellants. We also place on record the appreciation of the Investigating Officer for conducting the investigation in such a meticulous manner and the learned Public Prosecutor appearing in the trial Court for efficiently conducting the trial.

122. The copies of the judgment are handed over to the accused in the Court.