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Saturday, September 7, 2013

How to assess evidence = Ramesh Gadhave, PW-5 is the paan shop owner, who has stated in his evidence that the accused had come to his shop along with a child between 1.00 P.M. to 1.30 P.M., purchased four chocolates, gave those to the child and went towards Satara side. In the cross-examination he admitted that he is not expected to remember who comes to his paan shop and taking this into account, the High Court has rejected his evidence. We find ourselves unable to endorse the conclusion of the High Court. This witness has emphatically stated that the accused had come to his paan shop along with a child who was weeping, purchased chocolates and gave them to the child. He may not be expected to remember each and every customer but fact of the matter is that in the case in hand he had identified the accused and, in the absence of any evidence to the contrary, his evidence is not fit to be rejected only on the ground pointed out by the High Court. The STD Booth owners from where the accused had made the calls have also identified the accused. Not only that, the discovery of various articles at the instance of the accused, the entries of the Telephone Department showing the calls made to the father, opening of the bank account and the deposit of money coupled with the evidence of the two teachers, the paanwala and the STD Booth owners, in our opinion, complete the chain and point towards the guilt of the accused. In the circumstances, we are of the opinion that the chain of circumstances clearly points towards the guilt of the accused and the High Court erred in acquitting him. We may herein observe that acquittal of an accused who has committed the crime causes grave injustice in the same manner as that of conviction of an innocent person. In the result, we allow this appeal, set aside the impugned judgment and order of the High Court and restore that of the trial court.

                                                              NON-REPORTABLE


published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40729

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 218 OF 2008


STATE OF MAHARASHTRA                         … APPELLANT

                                   VERSUS


LAHU @ LAHUKUMAR RAMCHANDRA DHEKHANE    …RESPONDENT




                               J U D G M E N T



CHANDRAMAULI KR. PRASAD, J.



      This is an appeal by special leave by the State of Maharashtra against
the judgment of acquittal.  Said judgment of acquittal has  been  passed  in
appeal. By the impugned judgment, the High Court  of  Bombay  has  acquitted
the respondent under Sections 363, 364A, 386, 302  and  201  of  the  Indian
Penal Code.  The trial court,  however,  had  held  the  respondent  Lahu  @
Lahukumar Ramchandra Dhekhane guilty of all the charges.


      According to the prosecution, Sanket, son of Suryakant  Bhande,  PW-30
was studying in Junior K.G. in M.E.S. High School.   On  29th  of  November,
1999 Sanket went to school at 9 A.M.  When he did  not  return,  the  father
went to the school where he met Sanket’s Class Teacher, Anjali Walimbe  (PW-
4), who informed him that he left the school with a  person  aged  about  25
years at 12.30 P.M.  In the meanwhile, Pratibha, the  mother  of  the  child
received a ransom call promising to release the child on payment  of  ransom
of Rs. 1 lakh.  A report was accordingly lodged.  On 6th of  December,  1999
at 11.00 A.M. another ransom call came demanding a sum of Rs.  1  lakh  from
the father for releasing the child from captivity and the ransom amount  was
to be delivered at specified place.  The caller gave threat  to  the  father
of dire consequences in case police was informed.  Despite the  threat,  the
police was informed and the father went to  the  specified  place  with  the
ransom money, kept the money but nobody turned up till about 2.45 P.M.   The
father then received a call from his cousin  on  his  mobile  at  3.30  P.M.
asking him to return to his house.  On reaching there, the father  was  told
by his cousin that another anonymous call  had  come  complaining  that  the
place where the money was kept was surrounded by the police and, hence,  the
ransom amount be kept at Katraj Ghat  near  Hotel  Rama.   The  caller  gave
specific instruction as to the  place  and  the  manner  in  which  the  bag
containing the ransom amount  to  be  kept.   This  time,  the  father  went
without informing the police, kept the bag containing the ransom  amount  at
the specified place and sounded whistle as directed.  After 10 minutes  when
the father  went  to  the  spot  he  found  that  the  bag  was  not  there.
Thereafter, the search was made but neither the child nor anybody was  found
there.


      The family suffered the pain for a long time as they could not get any
information with regard to the  child.   However,  suddenly  after  about  6
months on 5th of June, 2000 the father received a call on  his  mobile  from
Pune  but  it  got  disconnected.   The  father,  in  order  to  record  the
conversation, had attached a tape-recorder to his mobile.  After some  time,
he received another phone call from Pune asking him to  pay  a  sum  of  Rs.
1,50,000/- for return of the child and an  impression  was  given  that  the
child is safe in Mumbai.  The caller further informed him that the time  and
the place for payment of the ransom money shall  be  informed  on  the  next
day.  As communicated, on the next day at about 12 noon the father  received
a phone call on his mobile and he was asked to  deliver  the  ransom  amount
near a hill at a specified place  at  Pune-Ambegaon  Bypass.   In  order  to
secure release of the child, the father  put  the  bag  containing  currency
notes at 3.00 P.M.  at  the  specified  spot.   At  that  time,  the  police
officers were standing at a distance.   Within  five  minutes  the  bag  was
taken away by somebody.  At about 3.45 P.M.  on  the  same  day  the  father
received a phone call on his mobile from a place called Hadapsar  from  Pune
and the caller threatened to kill his another  son  named  Saurav,  who  was
studying in IIIrd Standard in the same school, as  he  had  not  obeyed  the
instruction and informed the police.  The  father,  with  the  help  of  the
police, found out the STD Booth from where the phone  call  was  made.   The
owner of the booth, Ganesh Shinde, PW-26 told them that a  person  had  come
on Suzuki Samurai Motorbike who had made the call.


      On 17th of July, 2000 respondent Lahu @ Lahukumar Ramchandra Dhekhane,
hereinafter referred to as ‘the accused’, was arrested in a  case  in  which
the ransom call and the details and the manner in which ransom money was  to
be delivered were the same.


      During the course of investigation  it  transpired  that  on  29th  of
November, 1999 the accused went to Sanket’s school at 12.30 P.M.  and  since
nobody had come from the family to pick him up,  the  class  teacher  Anjali
Walimbe, PW-4 was waiting for somebody to  come  and  pick  him  up.   At  a
little distance another teacher Swati Joshi, PW-9 was taking  the  class  in
the verandah of the school.  At about 12.30 P.M., the accused  came  to  the
school and called Sanket whereupon he went running towards the  accused  and
on enquiry by the  class  teacher  the  child  answered  that  he  knew  the
accused.  In  this  way  the  accused  had  taken  away  the  innocent  non-
suspecting child with him.  It had  further  transpired  that  the  accused,
after kidnapping the child from the school, had gone to paan shop of  Ramesh
Gadhave, PW-5 and purchased some chocolates for the child.  Thereafter,  the
accused had taken the child to a place called Wai and  made  a  ransom  call
from the telephone booth of Sulbha      Kadane, PW-28.


      Thereafter, on the same day or a little later he killed the child  and
made phone calls from different telephone booths of Sanjay Salunkhe,  PW-15,
Ganesh Shinde, PW-26 and Sulbha Kadane, PW-28.  The statement given  by  the
accused led to the recovery of the bag and the  shirt  of  the  child  which
were identified by the parents in the test  identification  parade.   During
the course of investigation it also came to the notice that the accused  has
opened an account in a bank and deposited a sum of Rs.  40,000/-.   In  this
way the accused was alleged to have kidnapped the child for  ransom,  killed
him and later on destroyed the evidence.


         Accordingly, the police submitted the charge-sheet and the  accused
was ultimately committed to  the  Court  of  Sessions  where  charges  under
Sections 360, 364A, 386, 302 and 201 of the Indian Penal  Code  were  framed
against him.  He denied having committed  the  offence  and  claimed  to  be
tried.  He pleaded false implication and his defence was that after  he  was
apprehended by the police from Ambabai Temple, the  following  day,  he  was
shown to two teachers, Anjali  Walimbe,  PW-4  and  Swati  Joshi,  PW-9  who
stated that the accused was not involved in the crime.


      From the facts narrated above it is  evident  that  the  case  of  the
prosecution largely rests on circumstantial evidence.  The trial  court,  on
appreciation of the evidence led on behalf of the prosecution, came  to  the
conclusion that the chain of circumstances  proved  clearly  points  towards
the guilt of the accused and accordingly, he was held guilty for  kidnapping
and ransom, murder as also for the destruction of  the  evidence.   However,
on appeal the High Court doubted the  evidence  of  both  the  teachers  and
observed that it is probable that  they  identified  the  accused  from  the
photograph  published  in  the  newspaper.   The  High  Court  rejected  the
evidence of Ramesh Gadhave,  PW-5,  the  paanwala,  on  the  ground  that  a
paanwala attending to various customers on a day could not be in a  position
to identify the accused who had gone with a child  some  eight  months  ago.
As regards the entries of the Telephone Department showing  the  calls  made
to the father, opening of bank account and deposit  of  money  in  the  bank
account, in the opinion of the High  Court,  though  creates  suspicion  but
that cannot form the basis of conviction and  the  suspicious  circumstances
become insignificant once testimony of both the teachers  becomes  doubtful.
Accordingly, the High Court acquitted the accused.


      As stated earlier, aggrieved by the  aforesaid  order,  the  State  of
Maharashtra has preferred the  special  leave  petition  and  while  issuing
notice, this Court, by  order  dated  9th  of  September,  2005  stayed  the
operation of the impugned order of acquittal rendered  by  the  High  Court.
Thereafter, this Court granted leave against the impugned order  on  3rd  of
January, 2008 and directed for  continuance  of  the  interim  order  passed
earlier till the disposal of the appeal.  The result  thereof  is  that  the
judgment and order of conviction is operating against the accused.


      Evidence of Anjali Walimbe,  PW-4  and  Swati  Joshi,  PW-9,  the  two
teachers working in the M.E.S. High School are of  vital  importance.  Their
evidence has been accepted by the trial court but has been rejected  by  the
High Court, hence, we consider it expedient to consider  their  evidence  in
little detail.  Anjali  Walimbe,  PW-4  has  stated  in  her  evidence  that
Sanket, aged about three years was studying in Mini K.G. Class of which  she
was the class teacher.  She has further deposed in her evidence that  Sanket
had come to the school on the fateful day and when nobody turned up to  take
him back till noon, she brought the child in the  verandah  of  the  school.
According to her evidence, at 12.30 P.M. the accused  came  in  the  school,
called Sanket; whereupon he ran towards the accused.  On enquiry,  according
to this witness, Sanket told her that he knew the accused and  in  this  way
Sanket went along with him.  She has also stated the  manner  in  which  she
identified the accused in the test identification  parade  held  by  Jyostna
Vidhasagar Hirmukhe, Tahsildar, PW-27, on 16th of September, 2000.   In  the
cross-examination she had admitted that  after  accused  was  arrested,  his
photograph was published in the newspaper and  on  the  same  day  the  test
identification parade was held.  Similarly, Swati Joshi,  PW-9  had  deposed
about the manner in which  Sanket  was  taken  by  the  accused.   She  also
testified  about  the  identification   of   the   accused   in   the   test
identification parade held on 16th  of  September,  2000.    In  the  cross-
examination she denied the suggestion that she had  identified  the  accused
at the instance of the police.  As observed  earlier,  the  High  Court  has
rejected the evidence of  these  two  witnesses  on  its  finding  that  the
possibility  of  their  identification  on  the  basis  of  the   photograph
published in the newspaper cannot be ruled out.  We  find  ourselves  unable
to subscribe to this view.  The two  teachers  had  neither  any  grudge  to
grind against the accused nor anything has been suggested by the defence  in
the cross-examination.  They have clearly stated in the evidence  that  they
identified  the  accused  in  the  test  identification  parade  which   was
conducted by the Tahsildar, PW-27.  She  has  stated  about  the  manner  in
which test identification parade was  conducted  and  the  manner  in  which
these  two  witnesses  identified  the  accused.   These  two  teachers  are
absolutely independent persons.  We do not find any  earthly  reason  as  to
why they would falsely identify  the  accused  in  the  test  identification
parade.  We are of the opinion that the identification  of  the  accused  by
these teachers cannot be doubted.


      Ramesh Gadhave, PW-5 is the paan shop owner, who  has  stated  in  his
evidence that the accused had come to his shop along with  a  child  between
1.00 P.M. to 1.30 P.M., purchased four chocolates, gave those to  the  child
and went towards Satara side.  
In the cross-examination he admitted that  he
is not expected to remember who comes to his paan shop and taking this  into
account, the High Court  has  rejected  his  evidence.   
We  find  ourselves unable to endorse the conclusion  of  the  High  Court.   
This  witness  has
emphatically stated that the accused had come to his paan shop along with  a
child who was weeping, purchased chocolates and gave them to the child.   
He may not be expected to remember each and every  customer but fact  of  the matter is that in the case in hand he had identified  the  accused and,  in the absence of any evidence to the contrary, his evidence is not fit to  be rejected only on the ground pointed out by the High Court.  
The  STD  Booth
owners from where the accused had made the calls have  also  identified  the
accused.  Not only that, the discovery of various articles at  the  instance
of the accused, the entries of the Telephone Department  showing  the  calls
made to the father, opening of the bank account and  the  deposit  of  money
coupled with the evidence of the two teachers,  the  paanwala  and  the  STD
Booth owners, in our opinion, complete  the  chain  and  point  towards  the
guilt of the accused.  In the circumstances, we are of the opinion that  the
chain of circumstances clearly points towards the guilt of the  accused  and
the High Court erred in acquitting him.


      We may herein observe that acquittal of an accused who  has  committed
the crime causes grave injustice in the same manner as  that  of  conviction
of an innocent person.


      In the result, we allow this appeal, set aside the  impugned  judgment
and order of the High Court and restore that of the trial court.


                                    ………..………..……………………………….J.
                                                   (CHANDRAMAULI KR. PRASAD)




                                                    ………………….………………………………….J.
                                                             (KURIAN JOSEPH)


NEW DELHI,
SEPTEMBER 6, 2013.









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