A.R. Joshi, J.@mdashHeard learned Advocate Mr. Arfan Sait, appointed under the Free Legal Aid Scheme for both the appellants/orig. accused persons. Also heard learned APP for the State Mrs. Deshmukh. Perused the R & P and also perused the substantive evidence of total 40 prosecution witnesses examined before the trial Court. Present Criminal Appeal is preferred through jail by the appellants/orig. accused Nos. 1 & 2 challenging the judgment and order of conviction dated 30th October, 2009 passed by the Additional Sessions Judge, Jaysingpur, District - Kolhapur in Sessions Case No. 1 of 2006.
2. By the impugned judgment and order both the accused were convicted for the offence punishable u/s 364-A of IPC and were sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/- each. They were also convicted for the offence punishable u/s 384 read with Section 34 of IPC and were sentenced to suffer RI for three years and fine of Rs. 1000/- each, and in default to further undergo RI for one month. They were also convicted for the offence punishable u/s 387 read with Section 34 of IPC and were sentenced to suffer RI for five years and to pay fine of Rs. 1000/- each, and in default to undergo further RI for one month. Both the appellants/accused were also convicted for the offence punishable u/s 302 read with Section 34 of IPC and were sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/- each. They were also convicted for the offence punishable u/s 201 read with Section 34 of IPC and were sentenced to suffer imprisonment for five years and to pay fine of Rs. 1000/- each, and in default, to undergo further RI for one month. They were also convicted for the offence punishable u/s 507 read with Section 34 of IPC and were sentenced to suffer RI for three years and to pay fine of Rs. 1000/- each, and in default to undergo RI for one month. All the substantive sentences were directed to run concurrently. Being aggrieved by the judgment and order of conviction, present appeal is preferred through jail and in which the learned Advocate Mr. Arfan Sait has been appointed under the Legal Aid.
3. The case of prosecution is narrated as under:
The victim deceased Sanjay @ Balasaheb Satavappa Kore, an educated young man of 25 years age was residing with his parents and his wife and son, and was conducting private tuition classes at Kurundwad at his residence. All of a sudden, from 11:00 a.m. on 22nd August, 2005 he was missing. Initially on that morning he left the house and had gone outside for some work. He did not return home on that day and even on the next day. As he was missing from home, search was conducted by his family members and enquiries were made with relatives but there was no trace regarding the whereabouts of the victim Sanjay. PW-16 Gangubai, mother of the victim, informed her brother Jagannath Kore (PW-25). He came to the house of the victim and joined the efforts for searching the victim. On 24th August, 2005 Jagannath (PW-25) went to Kurundwad Police Station and orally informed regarding missing of his nephew - Sanjay. Statement of Jagannath was recorded and missing complaint was lodged at 9:30 a.m. on 24th August, 2005 and investigation was taken over by PSI Jadhav (PW-24).
Again on the same day of lodging of missing complaint, Jagannath attended the Kurundwad police station and informed that the complainant - Gangubai had received a telephone call from unknown person at her residential land-line telephone and said unknown caller had informed that victim Sanjay was in his custody and that the complainant should arrange for Rs. 2 lakhs for his release. When this circumstance was told to the concerned Police, she was advised by Police to record any such calls for demand of money for release of the victim. Suggestion was also given by the Police to install Caller ID Facility to the telephone instrument and to tape-record the conversation, if any. On such instructions, arrangements were made at the house of the complainant Gangubai for installing Caller ID facility to the land-line telephone. Thereafter various calls were received at the land-line telephone of complainant (PW-16) and there was demand of Rs. 2 lakhs for release of the victim. On these different calls directions were given for sending the ransom amount at different places. According to the complainant (PW-16), she arranged for the amount and in fact visited the respective places but nobody turned up to collect the ransom amount and as such all these visits rendered infructuous so far as trace of the victim. According to the case of prosecution, police personnel in plain clothes were escorting the complainant clandestinely and apparently this move on the part of the Police came to the knowledge of the caller and he indicated to that effect while making calls for the ransom. According to the complainant, she prepared list of said calls and also gave the caller-numbers to the Police. Those numbers were found to be of public telephone booths. Though the plain cloth Policemen were deployed on such coin-box telephone booths, there was no progress in the matter so far as trace of the victim and also trace of the kidnappers.
4. According to the complainant, the caller had asked to deliver the ransom at different places including Amrai Garden at Sangli, Jaysingpur Railway Station etc.. According to the prosecution, the call for asking the ransom amount to be taken to Jaysingpur Railway Station was received on 28th August, 2005 and as such a trap was led at the railway platform of Jaysingpur but without any success. However according to the case of prosecution on that day itself one Motorola Telephone Instrument packing-box was found at a particular place near the land of one Magdum (PW-26). Said land was situated in between Vadgaon and Danoli. Said instrument-box was taken charge of under the panchnama (Exh. 49) in which panch witness PW-9 Babuminya Mujawar took part.
5. During investigation on finding of the said carton box of Motorola mobile instrument, search of the shop owner was conducted and as such police party reached the shop of one Naikwade at Jaysingpur. Enquiries were made with the salesman of the said shop one Mahadeo Bhandare (PW-14) and it was found out that two young unknown persons had purchased a mobile handset of Motorola Company from the said shop at about 11:00 a.m. on 28th August, 2005. That time, said two unknown persons assured the salesman that they would come on the next day with the proof of residence. However, on that day itself, according to prosecution, the mobile handset was sold to said persons and receipt was prepared in the name of one S.S. Patil, which name was given by one of the two persons and consequently his signature and thumb impression was obtained on the office-copy of the receipt, which is at Exh. 62 before the Court. On the next day, both the said strangers did not come to the said shop and did not give any proof of residence. According to the prosecution through said Mahadeo Bhandare (PW-14) and one Milind Jadhav, the salesman for Tata Indicom, the said strangers had obtained SIM Card of Tata Indicom on 28th August, 2005 itself. Police then took help of the Tata Indicom Company and asked for the call-log for the mobile No. 9226167431. During the meantime, the complainant (PW-16) was receiving similar telephone calls on her land-line telephone asking for the ransom amount for release of the victim. All those calls were from different land-line numbers from Sangli area. As such, on 29th August, 2005 the complainant (PW-16) lodged a specific complaint with Kurundwad Police Station alleging abduction of her son. On the basis of said complaint, FIR was registered against unknown persons (which is at Exh. 67). That time, the complainant PW-16 also gave a list mentioning the details as to the time and caller''s phone numbers and as such list in the form of letter was received during the investigation. Said letter under the signature of the complainant is dated 29th August, 2005 mentioning one call on 24.8.2005, three calls on 26.8.2005, five calls on 28.8.2005 and six calls on 29.8.2005. In the said list, it is specifically mentioned that on 28.8.2005 one call is received from mobile No. 9226167431 at 15:23 hours. Apart from this, all other calls mentioned in Exh. 67 were apparently from land-line telephone numbers from the area where the STD Code is 0233. On 31st August, 2005, the entire receipt book containing office-copy of the receipt (Exh. 62) was seized under panchnama (Exh. 28) in which one panch PW-4 Nagesh Gaikwad took part.
6. On 5th September, 2005, the complainant Gangubai (PW-16) gave another list of telephone numbers with date and time in the form of a letter. Said letter is at Exh. 77. As mentioned in the said letter-cum-list, the complainant did not receive any threatening calls on 30.8.2005 and 31.8.2005. However, she received three calls on 1.9.2005, four calls on 2.9.2005, four calls on 3.9.2005 and no such threatening calls were received on 4.9.2005 and 5.9.2005. According to the said list, the four calls received on 3.9.2005 were from mobile No. 9226167431. This mobile number, according to the case of prosecution, is the phone number of TATA Telecom Service and apparently purchased by accused No. 1 from PW-14 Mahadeo Bhandare and apparently for the purchase of telephone instrument of Motorola Company a receipt (Exh. 62) was prepared by the said PW-14 on 28.8.2005. On receipt of this telephone list from the complainant, further investigation was done and police went to the residence of one Akaram Nirmale at Ghosarwad as he had received calls on his land-line at his residence from the mobile No. 9226167431. On enquiry with said Akaram Nirmale, it was revealed that present appellant/accused No. 1 was his grandson. During investigation, police also found that certain calls were made from the said cell-phone to the maternal aunt of appellant/accused No. 1 and enquiries were made with her and it was also revealed that accused No. 1 was then residing with her father i.e. Akaram Nirmale at Ghosarwad. Accordingly, API Gujar (PW-40) went to Ghosarwad and apprehended the appellant/accused No. 1 from the house of Akaram Nirmale and he was brought back to Kurundwad police station for enquiry. According to prosecution, on 10.9.2005, the appellant/accused No. 1 made voluntary statement to show the place where the weapon of assault was thrown and also to show the dead body and also clothes of accused No. 1. According to the prosecution, a memorandum panchnama was drawn regarding this statement at Exh-30 in presence of panch witnesses including PW-5 Ajit Tone. Thereafter accused No. 1 led the police party and panchas to one well in the field belonging to one Annasaheb Barwade. From inside the well, one dead body was found out which was covered in number of gunny bags. One shirt and full-pant were also found along with the body. Said dead body was identified by PW-25 Jagannath Kore, the maternal uncle of the victim. Seizure panchnama (Exh. 31) was drawn. Inquest panchnama was conducted (Exh. 52). Medical Officer Dr. Shivraj Mule (PW-31) was called on the spot and he conducted postmortem and issued certificate regarding cause of death (Exh. 113). Postmortem report is at Exh-114 showing the cause of death as hypovolumic shock and cardio respiratory arrest due to rupture of carotid artery, jugular vein and a trachea.
7. According to the case of prosecution, during investigation accused No. 2 was also arrested on 10.9.2005 and he showed the spot of incident. Accordingly memorandum panchnama was drawn at Exh. 37 and panchnama showing the spot is at Exh. 38. It was allegedly at the shop of accused No. 2 where he had a business of selling gunny bags. Both the said panchnamas were conducted in presence of panch witnesses including PW-6 Dilip Bandgar.
8. In short, it is a case of prosecution that present appellants/accused Nos. 1 & 2 conspired with each other and abducted the victim Sanjay Kore and thereafter committed his murder and threw away his body in the well after wrapping it in gunny bags, and in the meantime after abduction accused No. 2 gave calls at the residence of the victim and demanded ransom amount of Rs. 2 lakhs from his mother for release of her son Sanjay. Also according to the case of prosecution, they instructed the complainant (PW-16) to tape-record the conversation of the person making calls for ransom and also Police personnel''s accompanied the complainant at various places where she was called by the person making the calls, for giving the money to the abductors. According to the prosecution all these attempts became futile and there was no trace till 28.8.2005. On that day, the investigating agency stumbled upon one carton box of Motorola mobile handset found in the field of PW-26 Mahavir Magdum and as such they could trace the shop from where the said Motorola handset was purchased and they could get the information that a TATA Indicom SIM card was used to make the calls from the said Motorola cell phone instrument and after getting the relevant call-log for the calls made from the said TATA Indicom Mobile, they found out that various calls were made to No. 9326064245, which was a Reliance Mobile Number and they could trace the owner of said mobile being PW-17 Jamir Patel who purchased it from PW-21 Pritam Magdum. Also according to the police, said Jamir Patel (PW-17) sold the said Reliance Mobile to PW-22 one Junaid Bagwan, who in turn sold the same to one Pradip Mali who is brother of accused No. 2. Also according to the prosecution, there was a recovery of dead body at the instance of appellant/accused No. 1 from the well and finding of the clothes of accused No. 1 thrown along with the dead body for disposal. Also, it is the case of prosecution that both the said mobile handsets, i.e. Motorola handset having TATA Indicom SIM card and the Reliance Mobile handset, were seized on 12.9.2005. According to police, the Reliance mobile handset was recovered from the house of accused No. 2 under the panchnama at Exh. 44, whereas the other mobile handset i.e. Motorola handset having TATA Indicom SIM was recovered from the house of one Akaram Nirmale, the maternal grand-father of accused No. 1, under panchnama at Exh. 45. According to the prosecution, both these handsets were not seized u/s 27 of the Indian Evidence Act on any statement of the accused, but, they were recovered when respective houses were searched by the police. Said respective panchnamas (Exhs. 44 & 45) were conducted in presence of panch witness including PW-7 one panch by name Nana Chavan. At this juncture, it must be mentioned that said panch PW-7 did not support the case of the prosecution in any manner. Also according to the prosecution they again searched the house of accused No. 1 and found one shirt on 17.9.2005 and said shirt was taken charge of under the panchnama (Exh. 47) in which one of the panchas was PW-8 Mahadeo Khot. Again this panch had not supported the case of prosecution.
9. On completion of investigation and obtaining the CA reports, charge-sheet was filed before the concerned Magistrate Court and the matter was committed to the Court of Sessions and was tried being Sessions Case No. 1 of 2006. During the trial, 40 prosecution witnesses were examined and the matter ended in conviction of both the appellants. Said judgment and order of conviction is impugned in the present appeal by the appellants/accused Nos. 1 & 2.
10. Prior to appreciating the rival arguments and mainly the arguments advanced on behalf of the appointed learned Advocate Mr. Arfan Sait, certain factual position is required to be mentioned in order to ascertain the scope and perspective of the matter.
11. The entire case of prosecution is based on circumstantial evidence. There are no eye witnesses. Broadly speaking, the circumstances are narrated as under:
i) last seen together;
ii) recovery of dead body of the victim at the instance of accused No. 1;
iii) circumstance as to accused No. 2 making telephone calls to mother of the victim i.e. complainant (PW-16) asking for ransom; and lastly the motive as to abduction and murder of the victim for ransom.
12. Apart from the above circumstances and motive, according to prosecution there is material against both the accused to connect them with the offences inasmuch as they had nexus with each other as accused No. 1 had purchased a Motorola handset and also acquired a TATA Indicom service on the mobile bearing No. 9226167431 and accused No. 2 acquired the possession of a Reliance mobile handset with reliance call service from his brother Pradip Mali who in turn purchased the said instrument from PW-22 Junaid Bagwan who in turn took it from the original owner PW-17 Jamir Patel.
13. So far as the first circumstance as to last seen together is concerned, according to the prosecution, there are two witnesses i.e. PW-12 Sanjay Shankar Patil, the owner of Hair-Cutting Saloon, and PW-19 one Kiran Mane. Their evidence needs critical examination.
14. Said PW-12 Sanjay Patil was running a Hair-Cutting Saloon on the college road at Kurundwad. According to him, victim Sanjay was daily visiting the shop for reading the newspapers and also for hair-cutting work etc.. According to PW-12 on 26.8.2005 the victim Sanjay had been to the shop at 9:00 a.m. and left the shop at 11:00 a.m. after reading the newspapers. Said witness further deposed before the Court that he did not know where the victim Sanjay had gone, so also he did not ask any question to Sanjay where he was going. This was the evidence of PW-12. There is no cross-examination of this witness by the learned APP, although, according to the case of prosecution in the statement recorded u/s 161 of Cr.P.C., this witness had stated regarding victim Sanjay going out of the Saloon along with accused persons. However, considering the substantive evidence of PW-12 and no contradiction placed on record vis-a-vis his statement u/s 161 of Cr.P.C. recorded by the police, it must be said that this witness is of no use to the case of the prosecution on the point of last seen together.
15. Now coming to the evidence of PW-19 Kiran Mane, this witness had stated that on 22.8.2005 at 11:00 a.m. he had visited the Hair-Cutting Saloon of one Sanjay Katkar and there he saw the victim Sanjay reading the newspapers. After the shaving work, PW-19 went out and that time he saw the victim Sanjay going towards Terwad Road along with both the accused. According to this witness, accused No. 1 Shashikant was running a gunny bag shop on Terwad Road. During recording of his evidence before the Court, he identified both the accused. However, it is a factual position and has been brought on record that the factum as to this witness seeing victim Sanjay in company of both the accused has not been recorded in any of his statements during the investigation as he never stated so when his statements were recorded on 24.8.2005 and 30.8.2005. These improvements are brought on record during the cross-examination of this witness (PW-19). One more statement of this witness was recorded during the investigation on 12.9.2005 by the Police, wherein according to this witness he had stated that he had seen the victim Sanjay along with accused persons going towards Terwad Road. However this was proved to be an omission, which was brought on record during his cross-examination. Further more, it is substantive evidence of PW-19 that he knew regarding missing of victim Sanjay since 24.8.2005 and he had visited the house of victim also and met the relatives, but, at no point of time he disclosed his knowledge as to allegedly seeing the victim Sanjay going with both the accused in the afternoon of 22.8.2005. Even he did not mention so to the Police till 12.9.2005. It is significant to note that only after arrest of both these accused on 10.9.2005, when further statement of PW-19 was recorded on 12.9.2005, he came with a story that on the relevant day of 22.8.2005 he had seen the victim Sanjay going along with both the accused towards Terwad road.
16. Considering the effect of substantive evidence of both PW-12 Sanjay Patil and PW-19 Kiran Mane, in our considered view, the theory of last seen together has failed and in fact this aspect was rightly dealt with by the trial Court disbelieving this evidence of PW-12 Sanjay Patil and PW-19 Kiran Mane.
17. So far as the second circumstance as to finding of the dead body at the instance of accused No. 1 is concerned, according to the prosecution on 10.9.2005 accused No. 1 made a statement to show the place where the dead body was thrown in a well. A memorandum statement was recorded under panchnama Exh. 30 in which PW-5 one Ajit Tone was one of the panchas. According to the said panch (PW-5), the appellant/accused No. 1 led the police party and panchas to the well at Ghosarwad. The well was 30 feet in diameter and 40 feet in depth and there was water inside. However, the boundary wall of the said well was in dilapidated condition and some bushes had grown. One plastic gunny bag was floating in the well water. It was taken out from the well. It was found containing as many as 38 gunny bags including three plastic bags and inside dead body of a male person was wrapped. It was in decomposed condition. Another bag was found in the well containing approximately 50 kgs of sand. All the articles were taken charge of under panchnama (Exh. 31). The dead body was identified by PW-25 Jagannath Kore - maternal uncle of the victim. During cross-examination, this witness had stated that about ten persons from the village were present at the well before the police party and panchas went there along with accused No. 1. It is a factual position as per the case of prosecution that the dead body wrapped in gunny bags was floating on the well water and apparently ten persons were present at the well probably knowing some foul-play. Also it is a case of prosecution that from the said well subsequently a knife was recovered on 17.9.2005. It was taken charge of under panchnama (Exh. 55) in which PW-11 one Babasaheb Pujari acted as a panch witness. Again it is significant to note that said panchnama (Exh. 55) regarding seizure of knife was not the outcome of memorandum statement of any accused u/s 27 of the Evidence Act, but, it was outcome of the search conducted by the police in the said well water much belatedly on 17.9.2005. This date is of much significance as earlier from the said well the dead body, along with other articles and gunny bags, was found and that time apparently there was a search in the well water. Another curious thing to note is that the said knife and the clothes of the victim which were found on the dead body were apparently having blood stains of "B" group. Considering the case of prosecution that the dead body was almost decomposed so was the situation of the clothes and the body was in the water apparently for more than 10-15 days, it is strange to accept that the said clothes were having blood stains of "B" group. So also the knife which was subsequently recovered on 17.9.2005 from the well water also had blood stains of "B" group. Though according to prosecution, this is an incriminating circumstance against the accused persons as to the clothes of the victim having blood stains of "B" group and the knife having blood stains of B Group, this in itself cannot lead us to the conclusion that the said knife was used as a weapon of offence more so when there is no positive evidence as to what was the blood group of the victim as the blood samples could not be taken from the decomposed dead body.
18. On the above aspect, as to finding of dead body allegedly at the instance of accused No. 1 careful inspection of the inquest panchnama which is at Exh. 52 reveal that the dead body was shown and also identified by PW-25 Jagannath Kore. Apparently there are certain erosion on the timing mentioned in the said inquest panchnama. Said inquest panchnama (Exh. 52) mentions the name of PW-25 Jagannath Kore in both the paragraph Nos. 4 & 5. Para-4 is for writing the name of a person who had shown the dead body for the first time and para-5 is for writing the name of a person who had identified the dead body. Considering the material as available before the trial Court, as discussed above, and considering the contents of inquest panchnama and the evidence of the inquest panch PW-10 Arun Nirmale and considering the evidence of PW-5 Ajit Tone as to presence of ten villagers at the well prior to the police party reaching there, in our considered view, reasonable doubt has been created whether the recovery of dead body is at the instance of accused No. 1. Otherwise also, still if it is considered that the dead body was recovered at the instance of accused No. 1, it will lead only to the conclusion that there was knowledge for the accused No. 1 as to dead body lying in the well and nothing more than this, much less, the accused No. 1 being perpetrator of the murder. In any event, considering the material as discussed above, the said circumstance as to finding of the dead body of the victim at the instance of the accused No. 1 cannot be taken as a circumstance against the accused persons considering their implication in the offence of murder.
19. Now coming to the third circumstance i.e. as to the calls made by accused No. 2 to the complainant from different public telephone booths and also from the mobile instrument, the substantive evidence of PW-16 the complainant, PW-1 one panch Ramchandra Bhoi and of PW-40 the Investigating Officer Anil Gujar is of relevance. On this aspect, the documentary evidence is regarding the actual tape recorded conversation recorded on four cassettes and the panchnama (Exh. 16) under which the said cassettes were taken charge of as produced by the complainant (PW-16) during investigation. Prior to discussing the evidence on this aspect, certain admitted position is required to be mentioned in order to ascertain whether the material available before the trial Court was sufficient enough to hold that the appellant/accused No. 2 was the author of the ransom calls. According to PW-16 Gangubai initially she received threatening calls from 23.8.2005 itself. Earlier to that date, in the morning her son Sanjay was missing. After taking search for the victim, she made enquiry with PW-12 a owner of hair cutting saloon and according to her said PW-12 told that he had seen her son going away with appellant/accused No. 2. On this aspect, the substantive evidence of PW-12 is earlier discussed and he has supported the case of prosecution as to mentioning the fact of seeing the victim and accused No. 2 together in his statement u/s 161 Cr.P.C.. After not finding whereabouts of the victim, PW-16 made a call to her brother Jagannath Kore (PW-25). He visited her house and again search was conducted with other friends of the victim but in vain. However, on that day at about 12:30 noon, she received a telephone call from unknown person. In that call, the caller had told her that her son was in their captivity and that the complainant should arrange for an amount of Rs. 2 lakhs. The complainant enquired with the unknown caller as to who was calling. On this, in a threatening voice, the unknown caller mentioned that why the complainant was making such enquiry and it was not necessary and further threatened the complainant that this demand should not be made known to anybody otherwise she would know what will be the consequence. Thereafter the phone was cut-off. According to PW-16 this call was not recorded by her as it was the first ever call for ransom. Thereafter she connected the Caller ID instrument to her landline telephone No. 243128. According to her, it was a white coloured telephone of Airtel Company and was having the caller ID facility. Thereafter according to PW-16 she started collecting the amount of Rs. 2 lakhs for giving to the abductors. Thereafter on various dates, she received different calls and accordingly she gave a list of these calls by giving two separate letters dated 29.8.2005 and 5.9.2005. Said letters are Exhs. 76/C and 77/C before the trial Court. The details of the said letters were discussed earlier while narrating the case of prosecution. As such, according to PW-16 she had used the tape-recorder which was at her house and also used the blank cassettes to record the telephonic conversation. According to her, the blank cassettes were available at house as her son was fond of listening to music and had already purchased a number of blank cassettes for recording purposes and also had tape-recorder for the same. The fact remains that though from 24.8.2005 PW-16 started recording the telephone conversation regarding the demand of ransom amount, no effective steps were taken by the Police and mainly by the Investigating Officer to take up the job of recording the telephone conversation by proper method and more scientifically and also by intimating to local concerned BSNL Telephone Department Office to take measures to record the calls.
20. On the above aspect, we have carefully gone through the substantive evidence of PW-16, the complainant. Definitely the measures adopted by her were the actions of an amateur or a person not literate with recording of the voice of telephone conversation. Here the actual role of the police machinery was expected and any prudent Investigating Officer would have definitely taken all the measures to record the telephone conversation with utmost care and caution and with accuracy. Needless to mention that in such cases of demand of ransom over telephone calls, the identification of the voice of the caller is of utmost importance so as to pin down a particular accused. Unfortunately, in the present matter the Investigating Agency has failed to perform its duty and simply accepted the tape recorded conversations contained in four cassettes which were apparently recovered under the panchnama (Exh. 16) wherein one of the panchas was PW-1 Ramchandra Bhoi. On carefully going through the substantive evidence of PW-16 it is observed that a tape-recorder, apparently being used in the house to hear the cassettes containing songs, was used by PW-16. According to her evidence, she placed the said tape-recorder, with blank cassette inside, by the side of telephone and in that way according to her she could record the conversation which was being heard by her from the telephone on speaker-phone mode. According to this witness, the white coloured Airtel phone instrument was having Caller ID facility and that was the instrument used to receive the calls from the kidnapper. As against this, according to panch witness (PW-1) when he took part in the panchnama conducted at the house of the complainant on 29.8.2005, he noticed two telephone instruments in front of TV set and also a tape recorder by the side of the phone. According to him both the telephones were in working condition by confirming that the dial-tone was audible. According to this witness, the tape-recorder was also in working condition and there was a black coloured telephone and another was light yellow coloured phone. According to him, one of the phones was having Caller ID facility whereas other phone was having No. 243128. According to the case of prosecution and according to the complainant (PW-16) the land-line telephone on which the ransom demand calls were received was having No. 243128 and according to her on this phone there was a Caller ID. So apparently there is discrepancy as to on which phone there was Caller ID facility, when the substantive evidence of panch witness (PW-1) states, as mentioned above.
21. Apart from the above, it is also a factual position that no steps were taken by PW-16, her husband or even the police machinery for taking help of local BSNL office for putting both the landlines or the landline on which the calls for ransom were received, on surveillance in order to find out the telephone number of the caller. Even no steps were taken for getting the conversation over telephone, recorded at the BSNL office, or even get the telephone bill for the said telephone number which might show the call details and the phone number of caller with date and time. Of course, these additional steps from the office of the BSNL would have strengthened the case of prosecution. But for the absence of such steps, it is definitely risky to rely on the case of prosecution as to recording of the conversation on four different cassettes on different dates and timings at the hands of the complainant (PW-16).
22. One more circumstance lead to raising a doubt is as to the authenticity of the two lists given by PW-16 to the Police being Exh. 76/C and 77/C. This circumstance is regarding the telephone call from mobile No. 9226167431 on 28.8.2005 at 3:23 p.m.. Entry to this effect is appearing in the list-cum-letter (Exh. 76/C). According to the prosecution, this mobile telephone number is of TATA Indicom phone with telephone instrument of Motorola Company and this phone instrument and SIM card of TATA Indicom was apparently purchased by accused No. 1 giving his name as "S.S. Patil" on 28.8.2005. According to the case of prosecution, on 28.8.2005 itself they found out the carton box of Motorola phone instrument and it was seized under panchnama (Exh. 49) in which panch PW-9 Babuminya Mujawar took part. This recovery of carton box led the police party to reach the shop where PW-14 Mahadeo Bhandare was a salesman. According to further case of prosecution, said mobile number was put into activation only on 3.9.2005 as the initial called number from that instrument is 1567. This number is mentioned at Sr. No. 1 in the call-log produced by the Assistant Manager, Customer Service, of TATA Teleservices (Maharashtra) Ltd.. This call log along with covering letter dated 9.9.2005 given by the Assistant Manager (Customer Service) is at Exh-106. These call details were asked by the Police vide letter dated 29.8.2005 sent by fax to Manager, Customer Support Cell, TATA Indicom Telecommunication, Kolhapur for keeping the said concerned mobile phone under observation. In the said letter, a specific request was made to the Telephone Company for giving the documents as to in whose name the prepaid telephone facility for telephone No. 9226167431 was purchased. It was also requested to keep the said telephone number under observation and to get the call-log. Office copy of this communication by the police dated 29.8.2005 is at Exh. 163/C. In response to this letter, Exh. 106 was given by TATA Teleservices, as mentioned above, in which the first ever log is concerning calling to No. 1567 for activation. As such prior to 3.9.2005, there could not have been making of a call from the said mobile and if this circumstance is accepted then as mentioned in the letter Exh. 76/C as to receipt of a threat call on 28.8.2005 at 15:23 hours from mobile No. 9226167431 is apparently incorrect. This leads to further doubt whether the list given by PW-16 was authentic.
23. Apart from the above, one more circumstance which is raising a great suspicion on the conduct of the investigating machinery is regarding the enquiry made by the Investigating Officer with the Reliance Infocom Ltd. asking for the call-logs for one reliance mobile handset for mobile No. 9326064245. According to the case of prosecution, this Reliance mobile was purchased by one Jamir Patel (PW-17) who in turn allegedly sold it to PW-22 Junaid Bagwan and who in turn sold it to Pradip Mali, brother of accused No. 2. According to the case of prosecution, this mobile handset was used in the present matter and there was inter se communication between this mobile telephone and another mobile of TATA Indicom Service which was allegedly purchased by accused No. 1 under the fictitious name "S.S. Patil". The letter requiring the call log not only for Reliance No. 9326064245, but, also for the Reliance No. 9326064243, was given by the Investigating Officer to Reliance Telecommunication Ltd. on 3.9.2005. Vide said letter, information was asked for these two Reliance Mobile numbers as to their owners and addresses and as to the call logs for incoming and outgoing telephone numbers. Office copy of the said letter is at Exh. 166/C which is addressed to Reliance Infocom, Sadar Bazar, Kolhapur by outward No. 1699/2005. However, the reply letter was received from the Reliance Infocom Ltd. at Exh. 111 and the said information was given to Dr. Sukhwinder Sing, Superintendent of Police, Kolhapur. Said letter is dated 8.9.2005 giving only information regarding Reliance No. 9326064245 and name of the owner mentioned as Mr. Jamir Patel, Ichalkaranji. Said Jamir Patel is PW-17. There is no information regarding other mobile No. 9326064243. Apparently, this communication from Reliance Infocom Ltd. was on the letter sent by the Superintendent of Police, Kolhapur. However, office copy of the letter sent from the office of the Superintendent of Police is not on record. What is on record at Exh. 167/C is the office copy of the letter sent by Assistant Police Inspector, Kurundwad Police Station addressed to Superintendent of Police, Kolhapur vide letter dated 6.9.2005. There is nothing brought on record by the Investigating Officer or by any other witness that the involvement of the Reliance telephone number was known to the Investigating Agency prior to sending a letter dated 3.9.2005 vide Exh. 166/C or by letter from the office of Superintendent of Police, for which reply was given by the Reliance Infocom Ltd., vide letter Exh. 111. It is a factual position that only when the call-log from the TATA Teleservices was received vide Exh. 106, there was revelation of the involvement of telephone No. 9326064245. As such it was the knowledge gathered by the Investigating Agency only after receipt of the communication from TATA Teleservices vide letter dated 9.9.2005 (Exh. 106). If such knowledge was gathered after 9.9.2005 then asking for the information for Reliance phone numbers on 3.9.2005 or on 6.9.2005 appears to be absurd. On this aspect, we have carefully gone through the substantive evidence of the Investigating Officer (PW-40). Definitely an Investigating Officer may answer that regarding knowledge of any fact on the strength of source information and he may withheld the name of the source. However, in the present matter there is no explanation as to how the police machinery knew regarding the alleged involvement of the Reliance mobile No. 9326064245.
24. As such, all these circumstances, mentioned above, regarding finding of the carton box of Motorola instrument on 28.8.2005, PW-16 giving the number of said TATA Indicom in her list regarding call for ransom received on 28.8.2005, the admitted factual position that said TATA Indicom number was first time activated on 3.9.2005, finding of the number of Reliance mobile prior to getting information from TATA Teleservices Ltd., not getting the relevant information as to owner and his address etc. for the another Reliance mobile No. 9326064243, not getting the details as to the owner of the TATA Indicom number, are all the circumstances creating a doubt as to the involvement of the appellants/accused in the offence of kidnapping, murder and other offences charged. This is more so as the present case is based only on circumstantial evidence and that also the said circumstances which are not at all clinching and pointing towards both the appellants/accused negating the possibility as to the offences committed by some third person.
25. In view of the above, the circumstance as to tape-recorded conversation of both cell-phones, has not been established by the prosecution beyond reasonable doubt. This is more so for another reason that the receipt book which was allegedly seized from the shop where PW-14 Mahadeo Bhandare was working as a salesman. According to the prosecution under panchnama (Exh. 28) on 31.8.2005 the receipt book from the said shop was taken charge of. However, on carefully going through the contents of the said receipt book, the last receipt at Sr. No. 15 is of the date 8.9.2005 showing the sale of another mobile instrument to some other third party. If according to the case of prosecution entire receipt book was taken charge of under the panchnama on 31.8.2005 then there was no scope for one more receipt for 8.9.2005 to appear in the said receipt book. In fact, the entire evidence led by the prosecution is silent on this aspect. We have gone through the explanation given by the trial Court on this aspect, accepting that there is no answer with the prosecution. In our considered view, definitely this recovery of the receipt book and also the seizure of the relevant receipt dated 28.8.2005 is doubtful. On this aspect, according to the prosecution, said TATA Indicom mobile SIM card with Motorola handset was given to accused No. 1 when he allegedly visited the said shop on 28.8.2005. It is further the case of prosecution that as the accused did not give authentic documents as to his identity and residence etc. and assured to give them on the next day, as per the evidence of PW-14, his thumb impression was obtained on the office copy of the receipt which was given to accused No. 1. The office copy of the said receipt show that it was made in the name of one "S.S. Patil" and according to the prosecution said name was given by accused No. 1 in order to conceal his real identity and for the same reason he did not give any further documents and apparently on this premise his signature and thumb impression were obtained. Again on this aspect, it is admitted position as per the substantive evidence of PW-32 one Ravindra Kakade that the questioned signature on the said receipt which is having Sr. Page No. 14, do not match with the specimen signatures of accused No. 1 obtained under panchnama Exh. 34 dated 15.9.2005. In the said panchnama, one panch Ajit Tone (PW-5) took part. This panch has apparently acted as a panch in six panchnamas i.e. Exhs. 30, 31, 32, 33 and 34. The handwriting experts opinion is at Exh. 118 which reads thus:
Having carefully examined the documents, I am unable to express a definite opinion as regards identity of the red-encircled carbon signature, marked by me as Exh. Q-1 with the signatures, marked by me as Exhs. S-1 to S-6 for want of proper data for examination.
26. The above opinion indicates that there is no establishment of the fact that accused No. 1 had signed on the said receipt. As against this circumstance, the learned APP for the State submitted that on the same receipt there is a thumb impression of accused No. 1 obtained on 28.8.2005 at the time of purchase of the Motorola handset and the said thumb impression is matching with the accepted thumb impressions obtained from accused No. 1 under panchnama Exh. 26 dated 20.9.2005. In that panchnama, panch PW-3 Arvind Kamble took part. On the aspect of comparison of the thumb impressions, PW-33 Khanderao Dhole, Junior Experts (Finger Prints), an API, was examined. According to him, the disputed print marked "A" was identical with the specimen prints marked "X" of Shashikant Tulshiram Kamble (appellant/accused No. 1). On this aspect, it is an admitted position that only specimen impressions of accused No. 1 were sent for handwriting expert''s opinion and not of both the accused though there was no cognate material before the Investigating Agency to come to the specific conclusion that the thumb impression appearing on the receipt bearing page No. 14 was that of only accused No. 1. Even when the said receipt book containing the office copy of the relevant receipt was taken charge of by the police allegedly on 31.8.2005, there was no clue to the police as to how many persons were involved in the abduction and missing of the victim as by that time even the dead body was also not found. Even it was not the case that at the time of taking charge of the said receipt book PW-14 a salesman from the shop specifically mentioned that out of two persons allegedly visited to purchase Motorola handset, who had signed and gave thumb impression. Again on this aspect, it is an admitted position that there is no test identification parade of both the appellants/accused and identification of the appellants/accused by PW-14 was only in the Court when his substantive evidence was recorded. Again it is curious to note that one Milind Yadav has not been examined by the prosecution though according to the case of police, he was the person who brought the Motorola mobile handset from outside and also brought the TATA Indicom SIM card. In absence of evidence of said Milind Yadav, whatever material brought before the Court by the prosecution on the aspect as to receipt for sale of the Motorola handset, is not sufficient to pin-down the present appellants/accused for the offences charged. In other words, this circumstance as to alleged purchase of Motorola handset also is shrouded by mystery and cannot be considered as a link in furtherance of the case of prosecution.
27. At the cost of repetition it must be mentioned that the tape recording of the voice of kidnapper at the hands of PW-16 is also doubtful for various reasons mentioned earlier and in that event the opinion of Dr. Sing (PW-39) Junior Scientific Officer from Forensic Science Laboratory, Chandigarh cannot be taken in support of the prosecution to pin down the appellant/accused No. 2. Again on this aspect, it is curious to note that the investigating agency had not taken the voice samples of appellant/accused No. 1 and they were taken only from accused no. 2 by way of elaborate procedure by asking accused No. 2 to speak the specific words from the land-line telephone number installed at the police station and receiving the calls at notified telephone booth. One Sanjay Khurpe (PW-29) was the witness who recorded the said conversation at the telephone booth. Even for that purpose in order to establish making of the calls from the police to the said booth, an intimation was given to local BSNL Office to monitor the said calls going out of the police station. So all these ordeal of taking the voice samples of accused No. 2 and opinion of Dr. Sing (PW-39) will be of assistance to the prosecution only when it is established that the voice calls were properly recorded at the house of PW-16.
28. On the above aspect, certain guidelines given in the Criminal Manual are reproduced with advantage:
Rules for production, use and recording of the Tape Record Evidence in Court.
24. The Honourable the Chief Justice and Judges, with the previous approval of the Governor under Article 227 of the Constitution of Indian, are pleased to make the following rules regarding recording of the tape-record evidence in Court:
(1) ...
(2) ...
(3) The party producing the tape-recorded evidence shall also produce the transcript of the tape record along with the tape.
(4) The Court or its authorized officer who is to accept the tape should accept only such tapes as are under the seal of the party producing them.
(5) Court or such officer shall hear the tape record in order to verify whether the transcript produced alongwith the tape is correct or not and endorse such verification on the transcript record under his signature with date.
(6) The tape shall be kept in safe custody in a cover under the seal of the court. In case the tape is replayed or the seal is broken for any reason, the tape shall be resealed.
(7) The notice of production of the tape together with the transcript shall be served on the other side through the court.
(8) Any party to the proceeding may apply to the Court to hear the tape-record.
(9) The tape-record would be played within the hearing and sight of an officer appointed by the Court for that purpose and as far as possible in the presence of the other side or its Advocate. The Court on receipt of application may grant the necessary permission. However, the tape shall ordinarily not be played on 3rd or 4th occasion, unless the Court specifically permits hearing of the same. The Court while granting such permission should bear in mind that repeated use and play of the tape may affect the tape and its audibility. The Court may also permit any party to record the voice on the tape, produced in Court, on another tape.
(10) Every Court shall maintain a record showing as to how, when and why the seal of the tape record was opened and when the tape record has been resealed. Such record shall be kept in the proceedings alongwith the tape record and its transcript.
(11) The tape in a sealed cover together with its transcript shall be given a separate exhibit.
(12) In Criminal cases where appeal lies to the High Court and when the tape record is not in English, either wholly or in part, the transcript must be accompanied by an agreed or official English translation of the said transcript or part thereof, as the case may be.
(13) In case of discrepancy or doubt, the court may direct the tape to be replayed and the transcript record shall be corrected if the Court so directs.
(14) ...
(15) ...
(16) ...
29. It is unfortunate that in the present matter none of these guidelines have been complied while recording the evidence before the trial Court and preparing the paper-book for sending the matter to this Court. All the same, definitely it is a mitigating circumstance to the case of prosecution and thus lead to giving benefit of doubt to the appellants. On this aspect, following authority is cited by the learned appointed Advocate Mr. Arfan Sait for the appellants:
[i]
31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.
In para-33 of the same authority, the Apex Court has quoted the observations of another authority
33. In
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence -- direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
In para-34 of the same authority, the Apex Court has reiterated the observations made by the Court of Appeal in England in R. v. Maqsud Ali (1965) 2 ALL ER 464 (CCA) and which were referred earlier in Ram Sing Case (supra). The said observations of the Court of Appeal are infact the original observations of Marshall, J. who observed thus: (QB p. 701 C-F)
... We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape-recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.
30. On the aspect as to acceptability of the evidence of a panch witness though apparently a habitual panch, the learned APP for the State placed reliance on the following authority:
[i]
As per the observations in para-70 of the said authority, it was held by the Apex Court that though earlier during the period from 1978-81 one panch witness had given evidence in five or six cases in the Court on behalf of the police, still it was observed that simply because of said fact he cannot be branded as a habitual witness when he had acted as a panch in the incident of 1988. Presumably there was a long drawn gap of seven years in between the said activity of a panch as a police witness. As such, on the facts, this authority is of no help to the case of prosecution.
31. In the present matter, PW-3 is a panch Arvind Kamble. He allegedly took part in the panchnama of seizure of jeans pant of accused No. 1 at the police station on 17.9.2005 and also took part in the panchnama allegedly wherein the thumb impressions of accused No. 1 were taken on 20.9.2005. It is curious to note that the jeans pant which was seized on 17.9.2005 was apparently from the person of the accused. However, he was put under arrest during investigation on 9th or 10th September, 2005. This circumstance was much emphasized by the learned appointed Advocate for the appellants mentioning that it is improbable that accused No. 1 would be wearing the same pant from 9.9.2005 till 17.9.2005 and otherwise also recovery of such jean pant is of no much relevance for want of positive evidence as to finding of any blood on the said pant. Otherwise also the substantive evidence of said PW-3 panch in his cross-examination is relevant and leads to create a doubt to accept him as an independent witness and not amenable to the police. In the notes of evidence, in para-3 of his substantive evidence he had answered to the following effect:
3. It is true to say that I have been examined in many cases as panch in Kurundwad Court. It is true to say that I usually remain presence in police station. It is not true to say that my relations with police are very good. Lac seal was put at the time of seizure of the pant. It is true to say that there is no specific mention of lac seal in the panchnama.
32. Regarding seizure of Reliance mobile from the house of accused No. 2 and seizure of Motorola instrument with TATA Indicom SIM Card from the house of maternal grand-father of accused No. 1, one panch PW-7 Nana Chavan was examined by the prosecution. Said respective panchnamas are at Exhs. 44 & 45. Both these panchnamas were conducted on 12.9.2005. Admittedly these panchnamas are not u/s 27 of the Evidence Act and these are simplicitor the search panchnamas taken at the respective houses. It is pertinent to note that according to prosecution both the accused persons were arrested on 10.9.2005. However, the house search was conducted for recovery of the mobiles only on 12.9.2005. Moreover again the house of accused No. 1 was searched on 17.9.2005 and allegedly one shirt of the accused No. 1 was seized under panchnama (Exh. 47). In the said panchnama PW-8 panch Mahadeo Khot took part. Both these panchas PW-7 & PW-8 did not support the case of prosecution and as such their evidence do not take the case of prosecution to accept that the mobile handsets were seized from the respective premises and that the shirt of accused No. 1 was also seized from his house.
33. Considering the above factual position and the effect of the evidence brought before the trial Court, in our considered view, it is not a case in which the prosecution has reached to that standard of proof which is required to establish the guilt of both the accused beyond reasonable doubt mainly when the case is based on circumstantial evidence and the above referred circumstances are not so clinching to rule out any hypothesis other than the guilt of the appellants/accused.
34. Consequently the present appeal succeeds and the same is disposed of with following order:
::ORDER::
(a) Criminal Appeal No. 311 of 2010 is allowed;
(b) Impugned judgment and order dated 30th October, 2009 passed by the Additional Sessions Judge, Jaysingpur, District - Kolhapur in Sessions Case No. 1 of 2006 is quashed and set aside and both the appellants/accused are acquitted of the offence charged against them;
(c) Both the appellants/accused shall be released from jail custody if not required in any other matter;
(d) If fine amount is already paid, the same shall be returned to the respective accused persons;
(e) Present order be communicated to the appellants/accused through the concerned jail authorities where the appellants/accused are presently lodged.
At this stage, we must record our appreciation for Advocate Shri Arfan Sait, who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the appellants in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. Considering the bulk of the matter and scrutiny of number of prosecution witnesses i.e. 40 in number and considering the painstaking work taken by the learned appointed Advocate, we quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs. 4000/-.
