Akil Abdul Hamid Kureshi, J.@mdashBoth these proceedings arise out of a common judgment dated 31.03.2012 rendered by the learned Sessions Judge, Navsari in Sessions Case No. 13 of 2007. By the impugned judgment, the accused Parvez Rana was convicted for offences punishable under Sections 364 , 364A and 302 of IPC, for which, in addition to fine of Rs. 10,000/-, he was awarded death sentence. He was also convicted for offences under Sections 363 and 366 and sentenced to rigorous imprisonment for 07 years. Fine of Rs. 10,000/- each was imposed. For offence under Section 201 of IPC also, likewise he was convicted and sentenced to rigorous imprisonment of 07 years and fined for Rs. 10,000/-. This judgment of conviction has been challenged by the accused in Criminal Appeal No. 704 of 2012. Being a case of capital punishment, there is a separate confirmation case registered and placed before the High Court. Briefly stated the prosecution version was as under:
"One Hasmukhbhai Manilal Kachrola, first informant, PW 2, Exh. 52 resident of Navsari was working as a factory manager in a diamond polishing factory at Surat. He lived with his wife, two daughters and a son aged about 10 years named Nayan. Nayan was studying in 4th Standard in nearby Sanskar Bharati School. On 04.01.2007, Nayan had gone to his morning school which would be over at 11.30 a.m. His rickshaw driver Mohammad Hanif, PW 13, Exh. 75, as per routine, went to pick him up along with other students. All other children came but Nayan did not. He informed the school authorities but Nayan was not found at the school. He, therefore, informed Nayan''s mother. Hasmukhbhai, Nayan''s father had already left for work. At about 12.30 p.m., Hasmukhbhai, received a phone call from his brother Amratbhai informing him that Nayan had not returned from school and he may have been kidnapped. Hasmukhbhai immediately left Surat for Navsari in his friend''s car. On the way he received a phone call from Mobile No. 9998536530 on his Mobile No. 9879071174. The caller told him that Nayan was in his custody and demanded a ransom of Rs. 50 lacs for his release. On 04.01.2007 itself, the caller called up Hasmukhbhai from the same mobile number several times. Some of these phone conversations were taped by the complainant Hasmukhbhai with the help of his friend Kishorebhai Nagjibhai. Finally, the caller agreed to accept Rs. 15 lacs for return of the child and called Hasmukhbhai to Surat Railway Station with money at night. In the meantime, Hasmukhbhai had already lodged a police complaint. He went to the railway station, as instructed. Plain clothed police men accompanied him. They searched for the kidnapper at the railway station late at night but he did not show up. At 11.49 p.m. the same night, Hasmukhbhai again received a phone from the said number cursing him for bringing other people and policemen. Next day, on 05.01.2007, Hasmukhbhai talked to the kidnapper who demanded Rs. 25 lacs and called him at Navsari S.T. Depot with money at 12 o''clock. Shortly after that however, dead body of the boy was found near railway yard at Navsari. It was packed in a plastic bag. There was a surgical tape covering the mouth and nose of the boy."
2. The entire prosecution case rests on circumstantial evidence. The investigation painstakingly stitched together the evidence which would establish the guilt of the accused. Since large number of witnesses and documents are presented before the Court we would try to group such witnesses according to their relevance.
3. Medical Evidence:
"This consists of an isolated witness Dr. Sonia Rajesh Tekchandani, PW 1, Exh. 41. She was the Medical Officer at Navsari Civil Hospital at the relevant time. She had carried out the post-mortem of the deceased on 05.12.2007. In her PM note Exh. 42 she had recorded following external injuries:
"1. 1/2 cm long lacerated over gums on Rt. side upper jaw.
2. 1/2 cm wide red coloured contusion of varying length 5 to 6 in number over anterior abdominal wall extending from pubic symphasis to umbilicus.
3. Multiple 1/2 cm wide red coloured contusion of varying lenth present on both thigh.
4. Multiple 1/2 cm width red coloured contusion present over back of abdomen between sacral and thoracic region.
Greenish discolouration of right iliac fossa and anterior abdominal wall present."
There were no internal injuries. According to her, the cause of death was due to asphyxia due to smothering. The post-mortem was carried out between 1.15 to 3.45. She estimated the time of death between 20-24 hours before the completion of the postmortem. She deposed that the tentative certificate of cause of death Exh. 43 indicated asphyxia due to smothering as probable cause awaiting viscera report. Since forensic science laboratory gave a negative report of viscera she confirmed the said cause as the final cause of death. According to her, if a tape is tied around the mouth and nose of a person and if this stops the respiration, it would lead to death of the person. The injury at No. 1 indicated in the PM note could be caused with an adhesive tape tightly tied around the nose and mouth. Injuries at No. 24 could result from tying up the organs with the cord. She was shown pieces of adhesive tape, muddamal article No. 11 and agreed that such tape could be used for covering the mouth and the nose which would prevent breathing.
In the cross-examination, she agreed that even without sticking the tape there were other ways in which breathing can be stopped. She did not agree that the adhesive tape would invariably leave marks on the face.
4. Evidence of the complainant and other witnesses regarding the events of the date of the incident:
"In this group, we may start with evidence of complainant Hasmukhbhai PW 2, Exh. 52. He was the father of Nayan. He was residing at Navsari with his wife, two daughters and a son. He was a factory manager in a diamond polishing factory at Surat. In his deposition, he stated that he was commuting between Surat and Navsari by train. His son Nayan studied in 4th Standard in Sanskar Bharti School at Navsari. Nayan used to go to the school in an auto rickshaw. The school timing was 7.00 in the morning till 11.30. On 04.01.2007, he had gone to Surat. At 12.30, he got a call from his brother Amratbhai on his mobile informing him that Nayan had still not returned and he had learnt that he had been kidnapped. Someone had taken him away on a motorcycle. They had enquired at the school and other likely places but Nayan was not found. The witness, therefore, immediately started from Surat in a friend''s car to come to Navsari. On the way, he received a phone from Mobile No. 9998536530. The caller claimed that Nayan was in his custody and demanded ransom of Rs. 50 lacs. After reaching Navsari, he enquired about the whereabouts of his son. During this time, he received 3 to 4 calls from the same number by the same person. He, therefore, lodged a complaint before Jalalpore Police Station which was produced at Exh. 53. He had received first call at about 1.20 in the afternoon. After he reached home, he got a call at 1.40. His friend Kishorebhai was also present and told him to put his phone on speaker to tape the conversation. Kishorebhai taped the conversation on his mobile. He asked the caller to allow him to speak to Nayan but he did not do so. By the evening, he received about half a dozen calls from the kidnapper. Whenever Kishorebhai was present, they would tape the conversation. Around three phone calls could be tapped. When he insisted on talking to Nayan, the caller said that the boy was not with him at that time.
After some bargaining, the caller demanded Rs. 15 lacs and instructed him to come to Surat Railway Station and that he should travel in the last four boggies of Flying Queen train. He should not bring anyone else or police with him. The caller would normally speak in Gujarati but once in a while speak in Hindi. The witness, thereupon, boarded the Hying Queen train at Navsari to go to Surat. He also carried Rs. 15 lacs with him. Plain clothed policeman were with him. They reached Surat at 11.30. They did not find anybody at the station. At 11.49, he got a call from the same number. Caller scolded him for bringing other people and police though warned not to do so. He threatened that, now they will meet in the crematorium. After that they returned to Navsari."
5. On 05.01.2007, at 10.15 when he was talking on his phone he heard the sound of another call. When his conversation was over, he saw that the phone was from the same number. He tried to record the conversation. In the process by mistake he rejected the call. He immediately called on the said number and started recording. The person cursed him for the news leaking in the media and demanded Rs. 25 lacs, instructing him to come to Navsari ST Depot at 12 o''clock. Soon after the conversation he learned that dead body of his son was found near railway yard at Navsari. He went there and found the dead body in a plastic bag. Boy''s nose, mouth, ear and eyes were covered with the tape. He was tied with a cord. He had given a CD. of the taped conversation to police. He was positive that only one person had spoken to him from the said mobile number every time.
In the cross-examination, he agreed that he knew the accused since the year 1995, since he lived in Jalaram Aashish Apartment, which was near his house. In fact, he himself lived in the said apartment earlier and knew the accused by name.
FIR Exh. 53 was lodged at a time, Nayan''s dead body was not yet found. The complainant had disclosed about receiving a ransom call on his mobile demanding Rs. 50 lacs for returning the child.
6. Kishorebhai Nagjibhai Patel PW 8, Exh. 66, the friend of the complainant, had helped him in taping the conversations. In his deposition, he stated that on the date of the incident, he came to know about kidnapping of Nayan. He therefore, reached the house of the complainant-Hasmukhbhai. He had helped the family search the boy. When he was at the house of the complainant, the kidnapper called. He asked Hasmukhbhai to put the phone on the speaker. He recorded the conversation on the video clip of his mobile phone. He had thus, helped Hasmukhbhai record conversation of about five phone calls which came on that day.
In the cross-examination, he agreed that in his police statement on 05.01.2007, he had not disclosed about the taping of the conversation.
7. Mohammad Hanif Shaikh, PW 13, Exh. 75 was rickshaw driver in whose rickshaw Nayan would go to the school. He deposed that since about six months before the incident, he was taking Nayan to school and from school to home. On 04.01.2007, he picked up Nayan from home at about 7.30 in the morning. He dropped Nayan and other students at the school. Nayan had gone to the school with other children, after which, he left the place. At quarter to eleven in the morning, he went back to the school to pick up the children and waited at the gate with his rickshaw. The primary school was over at 11.20. All the children returned but Nayan did not. He therefore, took Hetvi, a student in the same class as Nayan. They went to the class room which was locked. They looked around in the compound. They also searched for the boy with the help of the class teacher and the Principal of the school. Not finding Nayan, he returned with Hetvi to his rickshaw. One of the boys in the rickshaw Meet told him that Nayan had already left with his father. He, thereupon, first went to the house of Nayan and informed his mother.
8. Geetaben Natubhai Desai, PW 10, Exh. 68 was the Principal of the school. On 04.01.2007, the primary school was to function between 8.20 to 11.20. She was present it the school. Shortly after the school time, Nayan''s rickshaw driver Mohammad Hanif ''came to her and informed her that Nayan had "hot returned. She looked for him in the school but he was not found. Rickshaw driver left but returned with Nayan''s mother looking for him.
9. Sarlaben Pankajbhai Patel PW11, Exh. 69 the Nayan''s class teacher deposed that on the date of the incident, she had taken the attendance. Nayan was present in the class. He was in the class right till 11.20 a.m. when the school was over. After which, he left the class room. Sometime after that, his driver Mohammad Hanif came looking for him. Sometime later, Nayan''s mother also came searching for him.
10. Vanitaben Hasmukhbhai Kachrola PW 12, Exh. 74, mother of Nayan also deposed that on the date of the incident, rickshaw driver Mohammad Hanif came to her house without the boy. She went back to the school with him but did not find the boy at the school. Later on, her husband received a phone call demanding ransom.
11. Meet Jitubhai PW 40, Exh. 163 was studying in the same school as Nayan. He was junior to Nayan in the school but used to go to the school and back home from school in the same auto rickshaw. The Sessions Judge, after asking him preliminary questions to ascertain that the witness was able to comprehend the questions and was able to give answers to the questions, proceeded to record his deposition. According to him, on the date of incident both Nayan and Hetvi were with him in the auto rickshaw while going to the school. At about 11 O''clock after the school was over, he had stopped near a tree in the play ground of the school. Nayan also came there and stood with him. At that time, one person came and told Nayan that his father had come to pick him up, he was outside of the gate and he was calling him. Nayan therefore went with this person towards the main gate. He and Hetvi then went to the auto rickshaw of Mohammad Hanif.
12. Evidence regarding recovery of the dead body:
"The inquest panchnama Exh. 30 was admitted by the defense. As per this panchnama; the dead body of a boy covered in a torn blue plastic bag, was spotted near the railway under bridge. The inquest panchnama-records that the body was tied with cotton cord in a blue coloured bag. In the plastic, bag, one curled up body of a boy in school uniform was found. His hands and legs were tied. There was an adhesive tape covering his eyes, ears and nose over which, a handkerchief was tied covering the mouth. There were no marks of injury on his private parts. There were marks of string with the cord on legs and hands. There were no other signs of any violence. On his socks some stray hair were found. Prosecution had examined several witnesses, who spotted the plastic sac. However, since the recovery of the dead body from the said place is not in dispute, we need not refer to depositions of such witnesses."
13. Evidence regarding purchase of articles such as cord, surgical tape and plastic bags used in commission of the offence by the accused:
14. Zahir Zenul Lokhandwala PW 22, Exh. 101 had a cutlery store opposite Municipal Office at Navsari. On 03.01.2007, according to him, the accused had purchased a bundle of cord which weighed 450 gms from him for Rs. 30/-. He identified the accused as the person who had made such purchase. The police had brought the accused to his shop on 11.01.2007. He immediately recognized him. He supplied a sample of the cord purchased by the accused from him. His statement was recorded by the Magistrate on 03.02.2007. He was shown muddamal articles 7, 8 and 9 and stated that it was the same cord purchased by the accused from him.
In the cross-examination, he admitted that the accused was not his regular customer. In fact, he had never seen him earlier. He was not issuing bills to the customers and did not have any written proof of selling the cord to the accused. He agreed that similar cord was available in many other shops.
15. Maheshbhai Madhusudan Tapkirwala PW 23, Exh. 105 had a medical store at station road Navsari. He knew the accused since he lived near his store. Accused and his father often came to his store for purchasing medicines. He also knew aunt of Parvez who was a nurse in Maleria Hospital. On 03.01.2007, according to him, accused had come to the store between 11 and 12 asking for surgical cello tape. He had provided such tape for Rs. 40/-. He had, however, not issued any bill for it.
16. Ajaybhai Kishorebhai Khatri PW 21, Exh. 97 had a business of plastic packing material. He had a shop at Dudhiya talav Shopping Center at Navsari. On 04.01.2007, when he was at the counter of the shop between 4 to 5 in the evening, the accused came there asking for black plastic bags. They only had blue bags. The accused purchased two of them for a total of Rs. 16/-. On 11.01.2007, the police came to his shop with panch-wit-ness and the accused. He identified him as the person who had purchased the bags. His statement was later on recorded by the Magistrate. He identified the two blue bags.
In the cross-examination, he agreed that he had received the money in cash without entries in the books. There were other shops which were also selling black plastic bags.
17. Evidence regarding procurement and use of the mobile phone and the sim card by the accused for making ransom calls:
"The accused was arrested under panchnama Exh. 77. The panch witness Samir Kantibhai Delwadiya supported the prosecution. At the time of the arrest, the accused was found in possession of two mobile instruments. One was Motorola mobile with the sim card having telephone number 9227861524. The other one was Nokia 3200 gray coloured instrument but it did not have a sim card."
18. PW 3 Junedbhai Ibrahimbhai Exh. 58 was running the family owned hair cutting saloon at Navsari. He and his brother Jafarbhai would work since their father retired due to old age. He knew the accused Parvez Rana since he lived in Jalaram Aashish Apartment which was near to his hair cutting saloon. Parvez would often come to his shop for hair cutting or shaving. He also used to visit a nearby pan shop for smoking. Sometimes, he would purchase the cigarette and come to his shop for smoking. Parvez had a shop selling mobile covers, glasses etc. He had visited the shop couple of times and also gone to Pavez''s house once or twice.
Some 15-20 days before the incident, he had purchased Nokia 3200 mobile instrument for Rs. 2000/- which his cousin Ismile had procured from a friend. He had then, put a sim card of Hutch company in the name of his father. Telephone number was 9909089923. Parvez had taken this instrument from him on 04.01.2007. Parvez had come to his shop the previous day to purchase the instrument. When he showed no interest, Parvez asked to borrow it to show his friend who wanted to buy a phone of the same model. He agreed to lend the instrument. Next day, when he was at the Muslim hall, he got a call from Parvez at about 12 o''clock asking for the instrument. He called Parvez at Muslim Hall and handed over the instrument without the sim card. Parvez promised him to return the instrument in couple of days. He identified the instrument as the same which he had given to the accused. His statement was recorded by the Magistrate under Section 164 of the Cr.P.C.
19. Samir Kumar Vinodchandra Mehta PW 4, Exh. 61 had sold the said mobile instrument to Ismilebhai for Rs. 2100/-. He had purchased the instrument from one Mukeshbhai in November 2006.
20. Ismile Yusufbhai Khalifa PW 65, Exh. 48 was cousin of Juned whom witness Samirkumar PW 4 referred to as the purchaser of the mobile. Ismile deposed that he had helped Juned purchase the said instrument from Samir which was Nokia Model No. 3200.
21. Pareshbhai Kishorebhai Aahir PW 15, Exh. 78 was working as a sales man at Harikrishna Telecommunications at Navsari. They were selling prepaid sim cards of Airtel company having the distributorship. Harikrishna Telecommunication would supply sim cards to the sub-dealers of Airtel. The sub-dealers would provide sim cards to the customers. After sale of the sim card, sim would have to be activated. Once the sim card is sold by the dealer he would telephone Harikrishna Telecommunication for activation upon which, they would call the company and the activation would take place. The sub-dealer or the retailer selling the sim card would take necessary documents from the customer. On 04.01.2007, at about quarter to 1 in the afternoon, he received a call from Hafiz Abrar, Golwad, Navsari for activation of a sim card with number 9998536530. He had enquired with Hafiz about the documents who assured him that the documents would be delivered. He, thereupon, sent SMS to the Airtel Company for activation of the sim card and duly received the reply.
22. Hafiz Abrar Saiyed PW 26, Exh. 118 was the sub-dealer who had provided the said sim card. He deposed that he had a general store and also kept mobile accessories and provided facility of recharge near Golwad gate. In December 2006, he had purchased two sim cards of Airtel Company from Harikrishna Telecommunication. One of them had a number 9998536530. He produced the bill of purchase of such sim card at Exh. 83. On 04.01.2007 between quarter to one and one, a person aged about 25 years came to his shop. He was strongly built person with wheatish complexion. He was wearing goggles and a jacket and asked for a sim card. The witness asked him for identification. The visitor assured him that he had a license and a photograph. He gave the sim card of number 9998536530 which he inserted in a Nokia handset of model No. 3200. He conveyed to Harikrishna Telecommunication to activate the sim card which was done. The customer paid him Rs. 500/-. He, thereafter, looked in his wallet and told him that he was residing at Surat and had forgotten the license at home. He would directly send the documents to the Airtel Office at Surat. If such documents were not accepted, he would give them to him the next day. The customer gave his name as Yogesh. The witness identified the accused before the Court as the purchaser of the said sim card explaining that he spent about 07 minutes at the shop, and could therefore, recognize him. He was also called for test identification parade during which he had identified the accused.
In the cross-examination he agreed that he had not met the accused before and thought'' he was wearing goggles, to read the sim card'' number, he had removed the goggles.
23. We may recall that at the time of arrest of the accused, the Nokia handset did1 not have the sim card. Such sim card was recovered at the instance of the accused under discovery panchnama Exh. 155. The panch witness Bhidarbhai Vashrambhai PW 34, Exh. 154 supported the prosecution. As per the panchnama, the accused led the police party and the panch-witness to the Jalaram Aashish Apartments and then to behind the apartment where from the gallery of his flat, he had thrown away the sim card. Upon rummaging a heap of waste paper and other dirt a sim card of Airtel Company was recovered.
24. Sirajbhai Abdulmajid Zabha PW 60, Exh. 279 was the Police Sub-Inspector at Navsari. He had produced crucial details regarding the sim card discovered at the instance of the accused linking the same to the mobile number used for making ransom calls. He had produced at Exh. 291 a letter by the police authorities, to Airtel Company at Surat requiring four details which are as under:
"1. Which mobile number is allotted to sim card number 8991980607054718018?
2. What is the name and address of the owner of this number?
3. On which date and time, the sim card was activated?
4. What is IMEI number of the mobile instrument in which the said sim card was used?"
In response to such queries which was produced at Exh. 295, the answers were as follows:
"1. Mobile number allotted to the sim card was 9998536530.
2. Name and address not available.
3. For activation date 18.12.2006 first call was made on 04.01.2007.
4. Instrument in which Nokia 3200 sim card was inserted."
It is of course true that in such communication last three digits of the sim number were referred to as 078 instead of sim number 018. However, in the later portion of this document, it was reported as under:
"See attached file: Investigation sim number 8991980607054718018."
It can thus be seen that the sim number in question was activated when it was assigned mobile number 9998536530, the number, frequently used by the accused for making ransom calls.
25. Dhirenbhai Jayantibhai Laria PW 58, Exh. 258 was the Senior Executive in the Legal Department of Vodafone Essar Gujarat Ltd. which was previously known as Hutch Mobile. The police asked him to supply call details of three mobile numbers. One of them was 9879071174 which was the mobile number of the complainant. He produced such call details at Exh. 260 which contained full details of incoming and outgoing calls of the said number during the relevant period.
26. Jogindrasing Dariyasing Duhan PW 59, Exh. 270 was the Local Manager of Airtel company. He had provided the call details for the relevant period of mobile No. 9998536530 which, according to the prosecution, was used by the accused. The documents providing such details were produced at Exh. 271 and at Exh. 272. He produced details of the mobile towers indicating the location of the telephone at the time of its use. Exh. 271 would confirm as many as 09 calls made from such number on 04.01.2007 on the mobile number of the complainant. The first call was made at 13.19 hours and a second call was made at 13.40 hours. On 05.01.2007, there was an incoming call on this number from the mobile of the complainant made at 10.24 in the morning. The document Exh. 272 indicated the location of the caller on 4th and 5th January, 2007. All these calls were made from different locations at Navsari and, in some cases, the change of mobile towers within the same range would indicate that the caller was on the move even while the conversation was going on. Such calls were made from Jalalpore region of Navsari, Kabilpura, Mahatma Gandhi Road, Vrundavan Appt. Lunci-Kui, Gandevi Rd., all at Navsari.
27. Evidence regarding occupation of the room where Nayan was locked up:
"Digambar Babulal Patil PW 25, Exh. 115 was the owner of the grocery store at Navsari. As per his deposition, in the same chaul where his shop was located, he owned a room. In the month of May/June 2006 his acquaintance Ravi Tandel with whom he had studied in the school approached him looking for a room on rent for his studies. He showed the room to Ravi Tandel which was situated on the ground floor of the chaul. Ravi Tandel rented the room for a monthly rent of Rs. 650/- and gave him deposit of Rs. 1000/-. Ravi Tandel occupied this room for about three months, after which, he had to go to Nagpur for studies. Ravi Tandel told him that Parvez, the accused, was his friend. He would pay the rent in absence of Ravi Trandel and would use the room. This witness knew Parvez since couple of times Parvez had come with Ravi Tandel to the room. This happened around 10th December. Ravi Tandel left for Nagpur. Towards the end of December 2006 Parvez paid him rent for the month of November. After Ravi Tandel left, Parvez had the possession of the room. The witness identified Parvez before the Court.
On 04.01.2007 around 11.30 in the morning, Parvez came to his shop, smoked a cigarette and left after few minutes. On the same day in the evening at about 4 o''clock Parvez came to his shop and left in a couple of minutes. He again came at 5 o''clock and smoked the cigarette. After leaving his shop at 4 o''clock he had called him enquiring whether Ravi Tandel had come."
28. Ravikumar Dhansukhbhai Tandel PW 39, Exh. 162 deposed that in June 2006 he completed the course of Bachelor of Physical Engineering and came back to his house at Navsari. In middle of June, he joined ICICI Bank, Credit Card Department as a Sales Executive and worked there till November 2006. During his service, he came in contact with accused Parvez. Parvez had brought customers for credit card to him on a few occasions. That is why he got friendly with Parvez and developed relations and also visited his house. He also sometimes used to sit at the shop of Parvez when Parvez was engaged in the business of Tata Coin box. In September 2006, he needed a room for studies. He therefore rented the room of Digambar Patil for a rent of Rs. 600/- and also paid Rs. 1000/- for deposit. He wanted to secure admission in MPD course. He would go to the room for studies in the morning and in the evening. Parvez had come there couple of times.
In November 2006 he got the admission in MPD course at Nagpur. He was to leave for Nagpur for studies. Parvez told him that he needed a room. He, therefore, took Parvez to Digambar Patil and told him about his departure and that Parvez needed the room. In presence of Digambar he handed over possession of the room to Parvez and then left for Nagpur.
29. Piyuskumar Parshottambhai Thakkar PW 33, Exh. 150 was the panch-witness to the panchnama of the same room where allegedly Nayan was kept by the accused. As per his deposition and the panchnama Exh. 151, there were blood stains on the wall of the room. Samples were collected from there, sealed and sent for testing. The investigating team also found and recovered same stray hair and bunch of hair.
30. Evidence regarding financial condition of the accused:
"As per the prosecution the accused was constantly short of money which provided the motive for making a ransom attempt. To establish such circumstance the prosecution examined several witnesses.
PW 17 Harishbhai Ratanbhai Shah, Exh. 84 deposed that at the relevant time, he was working as a sales man in Tata Indicom at Navsari. He knew Parvez whom he identified before the Court. Six months before the incident, Parvez had come to him as a customer for obtaining a connection of a coin box (through which paid telephone service could be used by customers). After this talk, he met Parvez after two months at his shop. Parvez helped him in getting 2-3 connections of coin box. Because of this friendship, he had given a sim card of Tata Indicom in the name of his father to Parvez for use. Parvez promised him that he would pay the bills of its use. For the first month there was a bill of Rs. 800/- which Parvez had not paid. He demanded money from Parvez who told him that he did not have the money currently but would give him later. Next month also Parvez did not pay the bill. For three consecutive moths, total bill of Rs. 1600/- was not paid and the telecom company therefore discontinued the sim card. He asked for money from Parvez on few occasions. Parvez never paid the said amount."
31. Mahadevbhai Kantilal Desai, PW 18, Exh. 87 deposed before the court that he had an STD PCO at Navsari. He knew Parvez since six months before the incident. Parvez had come to his STD PCO along with one Kalpeshbhai working in Tata Indicom. Kalpeshbhai persuaded him to give coin box to Parvez promising that he would pay the money in installments. He sold the coin box to Parvez for Rs. 1500/-. Parvez had not paid the money but promised to pay it in installments. Later, he paid the money in installments and then purchased five coin boxes towards which Parvez paid some money in installments still leaving the residue of Rs. 3600/- which he never paid.
32. Becharbhai Naranbhai PW 19, Exh. 91 had a shop in Navsari. Around ten months before the incident, his acquaintance Jigarbhai Kishorembhai Shah came to his house with Parvez. He borrowed Rs. 10,000/- to give it to Parvez since he had started a new shop. Parvez had to return the amount. Five to six months later Jigarbhai Shah returned Rs. 5000/- to him. Remaining 5000/- rupees was never returned.
33. Paresh Bhagwatiprasad Bahuguna PW 20, Exh. 93 was the Branch Manager of ICICI Bank at Navsari. On 07.02.2005, Navinchandra Rana, father of accused Parvez had taken a loan of Rs. 44,000/- from his bank for purchasing a motorcycle. The vehicle was actually purchased and registered. However, the four cheques issued by the borrower were all dishonoured for insufficient funds.
34. Deepakbhai Gokulbhai PW 24, Exh. 112 was the resident of Navsari and was working as a Recovery Officer in MAS Finance Service at Surat. As per his deposition, Parvez had taken a personal loan of Rs. 25,000/- from the said company. The borrower had to return the amount in 12 installments of Rs. 2700/-. Parvez paid the first installment but did not pay the rest of the installments.
35. Evidence regarding test identification parade:
"Test identification parade of the accused was carried out by Executive Magistrate, Arvindbhai Bhikhabhai Patel PW 42, Exh. 167. He described the procedure undertaken for identification of the accused by Hafiz Abrar."
36. Kantibhai Parbatbhai Delwadia PW 41, Exh. 165 was the panch-witness who supported the prosecution. The panchnama of TIP was produced at Exh. 166. As per the deposition of the witness in the panchnama Hafiz Abrar had successfully identified the accused from out of several dummies.
37. Experts evidence which could be further subdivided into two parts i.e. evidence of voice of matching and evidence from the forensic science laboratory: For establishing the identify of the voice of the caller, the prosecution examined various witnesses. Before recording the gist of such evidence, we may recall, as per the prosecution, the complainant with the aid of his friend Kishorebhai, had taped some of the conversations out of the multiple calls made by the accused to the complainant on 04.01.2007. Kishorebhai had then made a compact disc and provided the same to the investigation. To compare the voice of the caller in such discs, the investigation had recorded the voice of the accused. PW 52 Devrajbhai Petrod Exh. 219 was the panch-witness, in whose presence, the voice samples of the accused were recorded at All India Radio, Surat. He supported the prosecution. The panchnama was produced at Exh. 220.
38. Satishchandra Ganpatram Khandelwal PW 62, Exh. 367 was the voice expert, who had given the opinion regarding matching of the voice sample of the accused with that of the ransom caller. He was Assistant Director in the Forensic Science Laboratory at Gandhinagar at the relevant time. He was supplied the two sets of voice recordings for comparison. He explained the methodology applied for comparing the two sets of recordings. He had prepared the worksheet of his analysis on the basis of which he came to the conclusion that the acoustic and linguistic and phonetic characteristics of all the exhibits were identical. On the basis of these conclusions he opined that there was a high probability of the voice of the caller being that of the accused. He however agreed that the science was still at the early stage and opinion was based on probability.
39. Various articles recovered from different places including from the site where the boy was locked up, the clothes recovered from the accused etc. were sent for forensic analysis.
40. Kaushikkumar Amrutlal Patel PW 71, Exh. 391 was, at the relevant time, Scientific Officer in the forensic laboratory at Surat. He produced the FSL report at Exh. 394. Combined reading of the FSL report Exh. 299 and the surgical report Exh. 394 would show that on the shirt and socks of the deceased, blood of Group AB was found. The investigation had taken a sample from the nails of the accused from where also blood of Group AB was detected. From the plastic bags, the cord and the surgical tape used for tying the boy and gagging him also showed blood of Group AB. From the shirt of the accused also the blood of the same group was found. From different samples of blood taken from the room also was analyzed as Group AB. On the shirt and mobile phone recovered from the accused also blood of Group AB was detected. The report further establishes that blood group of the deceased boy was AB that of the accused was B.
41. Police Witnesses:
"PW 72 Lalsinh Jitsinh Solanki Exh. 395 had recorded the FIR at Jalalpor Police Station on 04.01.2007 and carried out the early investigation. The later investigation was done by Shri Ashwin Gangaram Chauhan, Deputy Commissioner of Police PW 73, Exh. 398. He gave detail steps undertaken for the investigation. From his evidence, it has come on record that at one stage, the investigation believed that there could be more than one person involved in the offence and theory of conspiracy was also probed. However, later on, for want of any evidence this angle was dropped."
42. This in the nutshell is the evidence on record. On the basis of such evidence, learned counsel Mr. Pratik Barot for the accused raised following contentions:
� "The entire case rests on circumstantial evidence. Circumstances forming at complete chain pointing to the involvement of the accused are missing. The conviction was, therefore, wrongly recorded.
� The ownership and use of the mobile by the accused was not established. Admittedly, the handset was purchased by PW 3 Juned. The sim card was also not registered in the name of the accused. Reliance of the voice analysis was wrongly placed. The analyst himself agreed that such science is at a nascent stage and could not state with certainty about the identity of the caller. Counsel further submitted that tape recording can be doctored. In the present case, even as per the witnesses, the conversation was taped from the loud speaker of their receiver with the help of video clipping of the phone of Kishorebhai leaving multiple possibilities of distortion. In this context, counsel relied on the decisions of Supreme Court in case of
� Counsel further pointed out that neither the complainant nor his friend Kishorebhai informed the police about the recording of the conversation till 09.01.2007 raising serious doubt about the veracity of the tape recording itself. According to the counsel, thus, the prosecution failed to establish that the ransom calls were made by the accused.
� It was submitted that motive was not established in the present case. In a case resting entirely on circumstantial evidence, absence of motive would be crucial.
� It was argued that prosecution failed to establish that the accused had the possession of the room where the boy was, locked up. Admittedly, the accused was not the owner of the room. The landlord could not produce any rent receipt or any other document to show that the accused had rented the said room.
� There was no evidence that the accused''s purchased the plastic bags, cord, and surgical tape which were used for this commission of the offence. None of the witnesses could produce any bills or receipts for such purchases. All witnesses agreed that such articles were freely available in the market and could have been purchased by anyone from anywhere else. Even if therefore, the accused had purchased such articles, such circumstance was wholly innocuous and would not establish the involvement of the accused in commission of the offence.
� Regarding sentence, the counsel submitted that, in facts of the case, capital punishment was not warranted. Even if the prosecution case is believed, there was no intention on part of the accused to cause death. He had not caused any violence or treated the boy with cruelty which would be demonstrated by absence of any injuries on the body. He had no criminal antecedents. He was young man aged about 25 years with responsibility of looking after his aged parents. There is no evidence to suggest that he was beyond reform or rehabilitation. This was not a rarest of rare case, and particularly, when the entire case is based on circumstantial evidence, the capital punishment should be avoided.
� In this context counsel, relied on the following decisions:
� In case of
� In case of
� In case of
"The Court, thus, has in a guided manner referred to the quality of evidence and has sounded a note of caution that in a case where the reliance is on circumstantial evidence, that factor has to be taken into consideration while awarding the death sentence. This is also a case purely on the circumstantial evidence. We should not be understood to say that in all cases of circumstantial evidence, the death sentence cannot be given."
� In case of
� In case of
� Decision in case of
43. On the other hand, learned APP Ms. Chetna Shah while painstakingly taking us through the evidence on record submitted that circumstances which were established on record beyond doubt formed a complete chain pointing at the sole possibility of the involvement of the accused with the exclusion of any other theory. She highlighted various circumstances to contend that from the stage Nayan was missing till his dead body was found, the movement, the actions and all other circumstances relating to the accused pointed to his involvement. The motive of making quick money was very much present. The accused himself was continuously in financial crunch. He was the resident of the same area and was also acquainted with the complainant and his family. His access to the school, familiarity with the area and possible familiarity with the boy himself enabled him to carry out his plan of demanding ransom from the father of the boy for his release. She submitted that a young boy of 10 years was brutally killed after being kidnapped for ransom. Death penalty was, therefore, rightly awarded by the Trial Court.
44. With this background we may assess the evidence. The fact, that Nayan had attended the school on 04.01.2007 was established through evidence of several witnesses. He ferried between the house and the school in auto rickshaw driven by Mohammad Hanif PW 13, Exh. 75. The driver had picked up the boy on 04.01.2007, dropped him to the school along with other children. His class teacher Sarlaben PW 11, Exh. 68 confirmed that Nayan was in the class throughout the school hours. Only after the school was over, he left the class to go home. Child witness Meet also met Nayan after the school where they stood for a few moments near a tree in the play ground. The fact, that Nayan was kidnapped almost immediately after the school was over, has also come through reliable evidence. The rickshaw driver Mohammad Hanif PW 13 waited outside for all the children of his auto rickshaw. Everyone came except Nayan. He thereupon, first went to the class room. Finding that the class room was locked, he went to the Principal, Geetaben PW 10, Exh. 68 who tried to search for the boy. They also contacted Sarlaben, the class teacher. Meet told the auto rickshaw driver that Nayan had gone with his father. This boy, in his deposition, stated that when he and Nayan were standing under the tree, someone came and took him saying that his father had come to pick him up and was waiting outside the school. Thus, the fact, that Nayan was kidnapped straight away from his school as soon as the school was over on 04.01.2007, was established by the prosecution.
45. The deposition of the complainant, PW 2 and the call details of his mobile number establish that he received the first call at about 12.30 from his family informing him that Nayan had not returned from the school and was possibly kidnapped. At 1.30, the complainant received first call from the kidnapper saying that Nayan was in his custody. The caller demanded ransom of Rs. 50 lacs for his release. He, however, did not indicate where it should be delivered. There were several calls made by the same caller from the same number 9998536530 on 04.01.2007. These calls were duly reflected in the call details of the mobile phone of the complainant as well as of the caller with the above noted number as can be seen from the call details provided by the cell-phone companies.
46. The complainant, as instructed by the kidnapper, boarded the Flying Queen from Navsari to go to Surat with finally settled amount of Rs. 15 lacs with him. However, sensing trouble because of the presence of plain clothed policemen, the kidnapper did not surface at Surat Railway Station but called up later cursing the complainant for not carrying out the instruction for coming alone.
47. Several witnesses next day sighted the dead body of the boy covered in a plastic bag at an isolated place near the railway yard of Navsari. We have not referred to these witnesses since this aspect is quite uncontroverted. The complainant immediately rushed there and found the dead body of his son covered in a plastic bag which was partially torn. On opening the bag, he found that hands and legs of the boy were tightly tied. His entire face including the mouth, nose, eyes and ears were covered with surgical tape.
48. PW 71 Kaushikbhai Patel, the Forensic Expert produced at Exh. 392, the worksheet of the analysis of the two sets of hair found from the room and from the dead body of the boy. In his deposition, he pointed out that after washing and drying the hair, he had prepared slides by applying glycerin and covering with the cover slip. He observed the characteristics of the hair under a microscope. He had recorded his observations in the worksheet. On the basis of such analysis, in the FSL report Exh. 393 it was opined that both sets of hair were human hair and were similar to each other.
49. The medical evidence confirmed that the boy was tied with the cord and gagged with the surgical tape. Possibly the entire face, mouth and nose were covered preventing the boy from breathing leading to his death due to asphyxia due to smothering. We may also recall that all the injuries, as per the medical evidence, were consistent with the tying up of the hands and legs, with the cord and, there were no external or internal injuries or any other evidence of violence. All the bruises and marks related to the tying of the boy.
50. We may now focus on the evidence connecting the accused with the commission of the said offence. All the ransom calls were made by the caller with a single mobile number namely 9998536530. PW 3 Juned had lent his handset Nokia 3200 instrument to the accused. The accused was known to him since he often came to the hair cutting saloon of Juned. Accused had first tried to purchase such instrument from Juned. When Juned was not interested in selling, the accused borrowed the instrument from him under the pretext that his friend wanted to buy the instrument of the same model and wanted therefore to see it. Juned removed his sim card and lent the instrument on 04.01.2007 at about 12.30 in the afternoon. The sim card was procured by the accused from Hafiz Abrar PW 26. He was the sub-dealer of Harikrishna Telecommunication which provided sim cards of Airtel company. As per his deposition, the accused had come to his shop on 04.01.2007 and purchased the sim card by paying Rs. 500/- and assured him that he had the license for identification and a passport size photograph. However, later, he changed the version saying that he had forgotten his license at Surat and he would supply all the documents to the company directly. This version was corroborated by Pareshbhai Aahir, PW 15. He was working in Harikrishna Telecommunication as a sales man. He described the procedure for providing a sim card to the distributor and then activating the same. The distributor had sold this sim card on 04.01.2007. At quarter to one, he received a phone from Hafiz Abrar requesting for activation of number 9998536530. He sent an SMS to the company and soon after receipt of confirmation, the number was activated.
51. We have no reason to disbelieve the testimony of two independent witnesses. Hafiz Abrar had no previous connection, link or animosity with the accused. He was in the business of providing prepaid sim cards. He had met the accused in a broad day light, had conversation with him for about 10 minutes. He identified the accused before the Magistrate during the test identification parade as well as before the Court. His version of requesting the distributor to activate the sim card was duly corroborated by the representative of Harikrishna Telecommunication, Pareshbhai Aahir, PW 15.
52. The Nokia handset was recovered from the accused at the time of his arrest. The sim card was thrown away from where it was recovered when the accused led police party and the panch witness behind his house from where under a heap the sim card was recovered. From the evidence of Sirajbhai Zabha PW 60, we further learn that the investigating agency had carried out further investigation to establish the link between the recovered sim card and the mobile phone number used by the ransom caller. The telecome company was requested to provide details of such sim card number such as the date of activation, first use of the sim card and the instrument from which it was used. Details provided by the company shows that such sim card was allotted telephone No. 9998536530. It was, for the first time, used on 04.01.2007 with the aid of Nokia 3200 instrument.
53. The occupation of the room by the accused was established through the evidence of PW 25 Digambar Patil, the owner of the room. He had, first rented the room to Ravi Tandel, whom he knew from the school days. Ravi Tandel wanted the room for his studies. He had applied for higher education while he was working in ICICI Bank. After occupying the room for about three months, Ravi Tandel informed the landlord that he had got admission at Nagpur. He, therefore, did not require the room any more but, his friend Parvez needed the room. Digambar Patil had already met Parvez couple of times through Ravi Tandel. Ravi Tandel handed over the possession of the room to the accused in presence of Digambar Patil and that is how the accused came to occupy room. This version of Digambar Patil was corroborated by his first tenant Ravi Tandel PW 39. He was working as a Sales Executive in ICICI Bank, Credit Card Department. Accused had brought few customers of credit card to him and that is how the two struck the friendship. Ravi Tandel had also visited the shop of the accused once or twice. He took Parvez to the landlord and handed over the possession of the room. We may recall that from this room, the investigating agency recovered human hair and found blood stains on the wall. Such human hair matched with the hair of the deceased. Blood was of the same group as the boy.
54. There was also evidence of the accused having purchased the cord and the surgical tape. The cord was purchased from Zahir Lokhandwala PW 22. He had a shop at Navsari from where the accused had purchased a bundle on 03.01.2007 for Rs. 30/-. Similarly, a surgical tape was purchased from Maheshbhai Tapkirwala, PW 23. He knew the accused and his father since they would often come to his medical store for purchases. He also knew aunt of the accused who was working as a nurse in Maroliya Hospital. Accused had purchased surgical tape from him for Rs. 40/- on 03.01.2007.
55. According to PW 21 Ajaybhai Khatri, the accused had purchased two plastic bags from him for Rs. 16/- between 4 p.m. and 5 p.m. on 04.01.2007. It can thus be seen that the purchase of the cord and the surgical tape were made in advance. The plan for kidnapping was executed on 04.01.2007. These articles were purchased on 03.01.2007. Timing for purchase of two plastic bags is crucial. Apparently, not anticipating that the plan would go astray, the kidnapper did not purchase the plastic bag in advance. However, when the boy, which was tied and also whose face and nose were completely covered with surgical tape, would have died due to smothering his dead body had to be disposed of. For such purpose, the kidnapper needed the plastic bags. It is true that mere purchase of these articles would not establish the guilty of the accused. As rightly pointed out, such articles were freely available in the market and could have been purchased by anyone. In isolation this circumstance may seem innocuous. This circumstance should however be seen in light of other evidence. We must also bear in mind the timing of such purchases. These purchases by the accused, as we would discuss later, add an important circumstantial evidence in the chain of events.
56. In addition to such factors, the evidence also showed that the clothes of the accused and his nails detected the presence of human blood of Group AB. Further, the fact, that the accused was almost perennially in financial difficulties, was also established through evidence of various witnesses. Harishbhai Shah, PW 17 pointed out that Parvez had borrowed his sim card but, -did not make the payment of Rs. 1600/- for three consecutive months, due to which, the sim card was discontinued by the company. Mahadevbhai Desai, PW 18 had supplied coin boxes to the accused. He had defaulted in paying Rs. 3600/- and paid the rest in installments. Becharbhai PW 19 had lent Rs. 10,000/- to the accused which he needed for his new shop. The accused returned only Rs. 5000/- defaulting in the rest. Parish Bahuguna PW 20 was the Branch Manager of the ICICI Bank who had released loan of Rs. 44,000/- to the father of the accused for purchase of a motorcycle. Four cheques issued for repayment had bounced for insufficient funds. Deepakbhai Gokulbhai PW 24 was Recovery Officer of MAS Financial Company which had given a personal loan to the accused of Rs. 25,000/-. The three cheques issued by the accused for repayment had all bounced. It can thus be seen that the accused was constantly under financial strain.
57. It has also come on record that the accused resided in the same locality as the complainant. In fact, the complainant himself resided in the same apartment as the accused sometime back and they knew each other. The accused was, thus, familiar with not only the area but also the family of the victim. This would perhaps explain the boy accompanying the accused on being informed that his father was waiting outside the school to pick him up.
58. We may, however, completely discard the voice recording of the ransom calls for several reasons. Firstly neither the complainant nor Kishorebhai informed the police about the call recordings till 09.01.2007. The complainant was an educated person and if he had recorded the calls, as alleged, one wonders why such crucial information was withheld from the police not only during the entire search operation but even after the dead body of the boy was found. Further, as per the say of these witnesses the complainant would put his phone on speaker and Kishorebhai would record the conversation on the video clip. It was, thus, not a direct electronic recording but prone to outside disturbance and distortion, making sound comparison extremely difficult. Even the sound expert Satishchandra Khandelwal PW 62 could only opine that on account of similarity of acoustic cues and linguistic and phonetic similarity, the probability of the voice of the caller being that of the accused was very high. In the cross-examination, he agreed that the science is still being developed and therefore, the opinion was based on probability. He also agreed that there could be differences in the quality of sound from the same person talking at different times. He also agreed that in the control sample sound and the sound of the taped conversation, from time to time, dissimilarities were noticed. He agreed that if a person is scared, his voice could change and if under such condition the recording is done, it would not provide a scientific sample.
59. In case of
"30. In our opinion, the evidence of voice identification is at best suspect, if not, 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 the case of
"We think that the High Court was quite right in holding that the tape-records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
"(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act." In the case of
"(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 Ram Singh''s case (supra), this Court also notices with approval the observations made by the Court of Appeal in England in the case of R. v. Maqsud Ali. In the aforesaid case, Marshall, J. observed thus:--
"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."
To the same effect is the judgment in the case of R. v. Robson, which has also been approved by this Court in Ram Singh''s case (supra). In this judgment, Shaw, J. delivering the judgment of the Central Criminal Court observed as follows:--
"The determination of the question is rendered more difficult because tape-recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts."
31. Chapter 14 of Archbold Criminal Pleading, Evidence and Practice discuss the law in England with regard to Evidence of Identification. Section 1 of this Chapter deals with Visual Identification and Section II relates to Voice Identification. Here again, it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners (including police officers), it enumerates the factors which would be relevant to judge the ability of such lay listener to correctly identify the voices. These factors include:--
"(a) the quality of the recording of the disputed voice,
(b) the gap in time between the listener hearing the known voice and his attempt to recognize the disputed voice,
(c) the ability of the individual to identify voices in general (research showing that this varies from person to person),
(d) the nature and duration of the speech which is sought to be identified and
(e) the familiarity of the listener with the known voice; and even a confident recognition of a familiar voice by a way listener may nevertheless be wrong."
The Court of Appeal in England in R v. Chenia and R. v. Flynn and St. John has reiterated the minimum safeguards which are required to be observed before a Court can place any reliance on the voice identification evidence, as follows:--
"(a) the voice recognition exercise should be carried out by someone other than the officer investigating the offence;
(b)proper records should be kept of the amount of time spent in contact with the suspect by any officer giving voice recognition evidence, of the date and time spent by any such officer in compiling any transcript of a covert recording, and of any annotations on a transcript made by a listening officer as to his views as to the identify of a speaker; and
(c) any officer attempting a voice recognition exercise should not be provided with a transcript bearing the annotations of any other officer."
In America, similar safeguards have been evolved through a series of judgments of different Courts. The principles evolved have been summed up in American Jurisprudence 2d (Vol. 29) in regard to the admissibility of tape recorded statements, which are stated as under:--
"The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:
(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.
... However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said.
(Emphasis supplied)"
32. This apart, in the case of
"Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence."
60. It can thus be seen that even though recorded conversation would be admissible in evidence, nevertheless the voice of the speaker must be duly identified by the maker of the recordings or by someone else who recognizes the voice similar to identification of a signature or handwriting of a maker of a document where writing could be identified by a person who saw him writing or signing the document or who is familiar with his handwriting. However, when such source is not available, one would have to fall back on scientific methods. It is, in this respect that the Supreme Court opined that the evidence of voice identification is, at best, suspect if not wholly unreliable. In the present case, the complainant was not familiar with the voice of the accused. He did not recognize his voice. This was natural since he knew the accused faintly and would not be expected to recognize his voice. Sole proof of the voice of the caller thus was the evidence of the voice expert.
61. Even after ignoring the voice identification, we have ample other evidences to link the accused with the commission of the offences. From the evidence on record which we discussed above, following circumstances emerge:
� "Nayan was kidnapped from his school on 04.01.2007 shortly after his school hours were over;
� complainant received first call from his family members while he was at Surat for work at about 12.30 p.m. that the young boy was missing and was possibly kidnapped. He immediately proceeded for Navsari. At 1.20 p.m., he received the first ransom call.
� Several calls were made on 04.01.2007 to the complainant from the same number by the same person. Ransom of Rs. 50 lacs was demanded. Later on, after some haggling, demand was reduced to Rs. 15 lacs.
� The complainant was called late at night at Surat in Flying Queen with the amount. He was instructed to come alone, particularly, without police.
� The complainant did carry out such instructions, in fact, carrying the amount with him. However, several police personnel in plain clothes accompanied him. The kidnapper did not appear at the railway station sensing trouble. He called up the complainant, scolded him for not coming alone and threatened that he would meet only at crematorium the next day.
� Dead body of the boy was found next day near railway yard at Navsari in the morning hours.
� Only one call was made by the accused on 05.01.2007 before discovery of the body. No further calls were made after that.
� The accused had made preparations before the act. He had purchased a cord to tie up the boy after kidnapping and surgical tape to gag him. After the boy died, he also purchased plastic bags to dispose of the body.
� The mobile handset of Nokia 3200 was recovered from the accused which was supplied to him temporarily by Juned, PW 3. The acquisition of the sim card by the accused was established. From this number all the phone calls were made for ransom to the complainant. Such calls were confirmed by the evidence provided by the mobile companies. The movement of the accused could be established with the aid of mobile towers from where the caller''s signals were transmitted. All the calls were made from locations at Navsari.
� The accused was in possession of a room rented to him by Digambar Patil PW 25 after the room was vacated by the friend of the accused, Ravi Tandel PW 39.
� It was from this room that the blood stains and tuft of hair was recovered.
� The forensic evidence established the blood of the group of the deceased from the shirt, nails and the mobile handset of the accused.
� The accused was continuously in financial difficulties. As pointed out by several witnesses, he was constantly borrowing money from bank, financial institutions and private persons and mostly defaulting in repayments."
62. These circumstances form a complete chain of evidence which leads unerringly to the involvement of the accused with the commission of the offence ruling out any other possibility to the contrary. Conviction of the accused for the commission of offence under Sections 363 , 364 , 364A , 368 and 302 of IPC was therefore, justified. A brief word in connection with Section 302 would, however, be necessary. We have no doubt in our mind that the accused kidnapped the young boy straight from school and took him to a room which he had rented. He tied his hands and legs. To prevent him from shouting, he also covered his face with surgical tape. He covered his mouth, nose, eyes and ears completely preventing the boy from breathing which must have shortly resulted into his unfortunate death. The circumstances, however, would suggest that the accused did not intend to cause death. The same way, we have through circumstantial evidence believed his involvement, the same circumstances would convince us that it was not the intention of the accused to cause death of the young boy. Firstly, he was not a hardened criminal with any past record. Secondly, his prime purpose was to knock out some easy money by way of ransom from the family. He would not be benefited by the death of the young boy. On the contrary, he would be saddled with liability of disposing of a dead body and, at later stage, being charged with the offence of murder. If he did intend to immediately liquidate the boy, for whatever inexplicable reasons, he did not have to apply such crude method. In our belief, he merely wanted to silence the boy to prevent his detection by the neighbours if the boy screamed, cried or shouted for help.
63. Nevertheless, his act of covering virtually the entire face of the boy with sticky adhesive tape of synthetic material was of such gross foolishness that he cannot escape the consequences of his utterly senseless and grossly foolish act. Section 300 of IPC which defines murder contains four clauses. Clause 4 provides that if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury, the person could be said to have committed murder. In the present case, as a normal human being with average intelligence which he undoubtedly possessed it was expected of the accused to have known the consequences of his gross foolishness when he tightly covered the mouth and nose of the boy with adhesive surgical tape wound several times around. He ought to have known that, however unintentionally, he in all probability would be cutting out total supply of oxygen to the young boy. Within minutes deprived of oxygen he would die. His action was, thus, so imminently dangerous that it would, in all probabilities, cause death. He committed such act without any excuse for incurring such risk. His action, therefore, must fall under Clause 4 of Section 300 . His conviction for offence under Section 302 was also therefore perfectly justified.
64. This brings us to the crucial question of sentence. As noted, the counsel for the convict prayed for clemency. The State highlighted a senseless loss of a young boy who would have so painfully died of suffocation to press for confirmation of death sentence. In a recent decision, Division of this Court traced the leading judgments on the question of death sentence and cited the judgment of Supreme Court in case of
"44. In the case of
45. Ever since the judgment of Supreme Court in case of Bachan Singh v. State of Punjab (supra), the Courts have been following the test of rarest of rare case in deciding the death penalty. In the later decision in case of
"32. It does appear that in view of the inherent multitude of possibilities, the aggravating and mitigating circumstances approach has not been effectively implemented.
33. Therefore, in our respectful opinion, not only does the aggravating and mitigating circumstances approach need a fresh look but the necessity of adopting this approach also needs a fresh look in light of the conclusions in Bachan Singh. It appears to us that even though Bachan Singh intended "principled sentencing", sentencing has now really become judge centric as highlighted in Swamy Shraddananda and Bariyar. This aspect of the sentencing policy in Phase II as introduced by the Constitution Bench in Bachan Singh seems to have been lost in transition."
Be that as it may, the principle of awarding death penalty in rarest of rare case, when all options of awarding life imprisonment are foreclosed, has been consistently applied by the Courts in this context.
Later on, in a series of judgments including in the case of
46. In the case of
47. In the case of
48. In the case of
49. In the case of
"No doubt, the murder was brutal. However, it has been pointed out by Shri Gaurav Agrawal as also Shri Raj that this was not a diabolic murder nor had the murderers acted in depravity of their minds by disfiguring the bodies. The incident must have taken place barely within 1015 minutes when they came, assaulted the family members and left. True it is that the two ladies who were assaulted were helpless and so were Krishnan and Prabhu. But when we weigh all the circumstances, particularly, about the mindset of Dilip, the cruel acts on the part of the accused would not justify the death sentence.
"50. In the case of
51. In the case of Swamy Shraddananda (supra), the aspect of fixed term sentence particularly when the question of commutation of death sentence comes up was examined by the Supreme Court. Referring to several previous decisions on the point, it was observed as under:
"65. Earlier in this judgment it was noted that the decision in
"4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in
"Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.
If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.
* * * * *
A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person''s natural life". The Court further observed thus:
"But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make Rules, inter alia, for rewards for good conduct. Therefore, the Rules made under the Act should be construed within the scope of the ambit of the Act.... Under the said Rules the order of an appropriate Government under Section 401 , Criminal Procedure Code, are a prerequisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.
The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release''.
It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the Rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period of the prisoner''s death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life."
Further, in paragraph 23, the judgment in Shri Bhagwan observed as follows:
"In
The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan, and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.
66. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court''s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years'' imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years'' imprisonment would amount to no punishment at all.
67. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of the rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh (supra) besides being in accord with the modern trends in penology.
68.In light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be."
52. We are not unmindful of a recent decision of the Supreme Court by a two Judges Bench in the case of
65. In case of
"52. Aggravating Circumstances as pointed out above, of course, are not exhaustive so also the Mitigating Circumstances. In my considered view the tests that we have to apply, while awarding death sentence, are "crime test", "criminal test" and the RR Test and not "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is 100% and "criminal test" 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is "society centric" and not "Judge centric" that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society''s abhorrence, extreme indignation and antipathy to certain types of crimes like, sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges."
66.
"22. We are, however, of the view that this is a fit case where we can apply the principle laid down in
67.
68. In case of
"38. We may now consider whether the case falls under the category of rarest of the rare case so as to award death sentence for which, as already held, in
69. In case of
"31. ...In our criminal justice system, for recording guilt of the accused, it is not necessary that the prosecution should prove the case with absolute or mathematical certainty, but only beyond reasonable doubt. Criminal Courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind, some "residual doubt", even though the Courts are convinced of the accused persons'' guilt beyond reasonable doubt. For instance, in the instant case, it was pointed out that, according to the prosecution, 30-35 persons armed with weapons such as fire arms, dao, lathi etc., set fire to the houses of the villagers and opened fire which resulted in the death of 15 persons, but only 11 persons were charge-sheeted and, out of which, charges were framed only against 5 accused persons. Even out of those 5 persons, 3 were acquitted, leaving the appellant and another, who is absconding. Court, in such circumstances, could have entertained a "residual doubt" as to whether the appellant alone had committed the entire crime, which is a mitigating circumstance to be taken note of by the court, at least when the court is considering the question whether the case falls under the rarest of rare category.
32. ''Residual doubt'' is a mitigating circumstance, sometimes, used and urged before the Jury in the United States and, generally, not found favour by the various Courts in the United States...."
"34. We also, in this country, as already indicated, expect the prosecution to prove its case beyond reasonable doubt, but not with "absolute certainty". But, in between "reasonable doubt" and "absolute certainty", a decision maker''s mind may wander possibly, in a given case, he may go for "absolute certainty" so as to award death sentence, short of that he may go for "beyond reasonable doubt". Suffice it to say, so far as the present case is concerned, we entertained a lingering doubt as to whether the appellant alone could have executed the crime single handedly, especially when the prosecution itself says that it was the handiwork of a large group of people. If that be so, in our view, the crime perpetrated by a group of people in an extremely brutal, grotesque and dastardly manner, could not have been thrown upon the appellant alone without charge-sheeting other group of persons numbering around 35. All element test as well as the residual doubt test, in a given case, may favour the accused, as a mitigating factor."
70. We may now advert to some of the decisions of the Supreme Court on question of sentence in case of kidnapping and murder. In case of
� "In case of
� In case of
"22. In the present case also, we find that when the appellant committed the offence he was a young person aged about 28 years only. There is no evidence to show that he had committed the offences of kidnapping, rape or murder on any earlier occasion. There is nothing on evidence to suggest that he is likely to repeat similar crimes in future. On the other hand, given a chance he may reform over a period of years. Hence, following the judgment of the three-Judge Bench in
23. While therefore sustaining the conviction of the appellant for the different offences as well as the sentences of imprisonment awarded by the trial court for the offences, we allow the appeal in part and convert the sentence of death to life imprisonment for the offence under Section 302 , IPC and further direct that the life imprisonment shall extend to the full life of the appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reasons. The appeal stands disposed of."
� In case of
"167. The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in
71. We may notice that in case of
72. In case of
73. In case of
74. We may, in order to choose the correct sentence, advert to the facts of the case. On the negative side, it is of course true that the accused had committed a heinous crime. He not only kidnapped a young boy for ransom putting his relatives under fear of death, he also ultimately ended up committing his murder. Section 302 of IPC prescribes punishment for life imprisonment or death for the offence of murder. Section 364A of IPC which prescribes punishment for kidnapping for ransom provides that whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the person to do or abstain from doing any act or to pay a ransom, shall be punished with death or life imprisonment and also be liable to be fined. The accused thus, committed two independent offences both prescribing death penalty. Even after the boy died, he continued to make ransom calls further aggravating his actions. Despite such adverse factors, we do not think this is a rarest of rare case where death sentence should be awarded. There are multiple reasons for our such conclusion. Firstly, the accused did not have a criminal record. The State has not brought any evidence of his criminal antecedents. We must therefore, proceed on such basis. He was thus not a hardened criminal beyond reform. From all accounts he had roots in the society. He had many friends and acquaintances. He was a sociable person who built relationships easily. He lived with his parents and tried to run a small business. There is nothing to suggest that he was totally beyond reform or rehabilitation. Again, the State has completely failed to bring on record any evidence to suggest that he was likely to repeat such offence or was so utterly beyond any reform or possibility of rehabilitation that snuffing out of his life was the only choice left. Though we have concluded that he had committed the offence of murder we have also recorded that he did not intend to cause death of the young boy. His primary, and in fact, the sole motive was to knock out ransom money from the father of the boy. In order to keep the boy silent, he tightly tied adhesive tape around his mouth and nose completely blocking any supply of oxygen. His action thus was grossly foolish and utterly crude, however, did not amount to any intention to cause death. We have already recorded our reasons which emerge from circumstantial evidence established on record to come to the conclusion that causing death of the boy was not the intention of the accused. He had not treated the boy with excessive cruelty. There were no signs of any violence on the body. We may recall, in
75. Before closing we may record our pain at the mariner in which the Trial Court handed down death sentence without proper examination of facts on record and the law applicable. Entire discussion on sentencing occupied a bare couple of pages in otherwise a fairly long judgment. Judgments of Supreme Court were referred and relied upon without examining the facts and ratio laid down. We wonder whether human life has become so inexpensive as to snuff out on consideration of facts which does not go beyond couple of pages. In many cases, a judicial officer is confronted with the situation where he would have to make a choice between the death sentence and life imprisonment. Such choice is to be exercised upon minute examination of facts on record by applying well laid down judicial principles. At any rate, the question of death or life cannot be a matter of summary consideration.
76. We must record our appreciation for the assistance received from both the counsels. It was only with the assistance of the advocates who painstakingly took us through the voluminous evidence on record that we could segregate the relevant and important facts shaking off the unimportant ones. Their extreme labour in preparation of the case was visible all throughout prolonged arguments in the appeal. In the result, both the proceedings are disposed of with following directions:
"Conviction of the accused for offences punishable under Sections 363 , 364 , 364A , 368 , 302 and 201 of IPC is confirmed. His death sentence under Sections 364A and 302 is commuted to life imprisonment but we would further direct that the convict would spend a sentence of minimum 20 years without any possibility of remission form such period. Sentences for rest of the offences along with fine imposed remain unchanged. It is, however, clarified that such sentences shall run concurrently with the manning sentence, R & P to be transmitted to the Trial Court."
