IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO. 3 OF 2008
SESSIONS CASE NO. 47 OF 2004
State of Maharashtra ..Applicant versus
Pappu Suresh Salve @ Sunil Bharat
Jadhav ..Respondent Shri H.J. Dedhia, APP for the State.
Shri M.S. Mohite a/w Shri S.B. Bhosale, Ms. Sharmila Kaushik and Shri A.R. Kapadnis for Respondent.
CORAM : B.H. MARLAPALLE &
A. A. SAYED , JJ.
DATED : 13TH APRIL, 2010.
ORAL JUDGMENT ( PER B.H. MARLAPALLE, J.)
1 This confirmation case submitted under section 366 of Code of Criminal Procedure, 1973 (Code for short) arises from the order of conviction passed on 27th November, 2008, in Sessions Case No. 47 of 2004 by the learned Additional Sessions Judge at Nashik. The respondent- accused No.1 has been convicted for the offences punishable under sections 363 and 302 of IPC and section 201 r/w section 34 of IPC. For the offence under section 302 IPC, he has been sentenced to death and directed to be hanged by his neck till his death, subject to confirmation by this Court under section 366 of the Code. In all 5 accused were put on trial in Sessions Case No. 47 of 2004 and accused Nos. 4 and 5 have been acquitted from all the charges. Accused No. 2 Sarita, who is the wife of the present respondent has been convicted for the offence punishable under section 202 r/w section 34 of IPC and sentenced to suffer R.I. for six months and accused No.3 Raju Bhikaji Sardar has been convicted for the offence punishable under section 201 r/w section 34 of IPC. He was sentenced to suffer R.I. for 7 years. All the accused were under trial prisoners and we are informed that accused Nos 2 and 3 did not file any appeal so as to challenge the order of conviction. They were taken in custody some time in the first week of November, 2003. As per the prosecution case, accused No.3 has perhaps undergone the period of 7 years of sentence by now. Accused No. 2 was sentenced to suffer S.I. for 6 months but she was in custody till the order of conviction and sentence was passed on 27th November, 2008, that is for almost 5 years. 2 Be that as it may, as per the prosecution case, P.W.1 Complainant Mangesh Narayan Jadhav, is a resident of village Malegaon in Sinnar Taluka of District Nashik. This village is located on the Nashik Pune road and between Nashik and Sinnar. The distance between Malegaon and Sinnar is said to be about 5 k.ms. and between Malegaon and Nashik is said to be about 25 k.ms. P.W. 1 runs a hotel and Video Parlour at Malegaon, where the accused No.1 was employed. On 31-10-2003 it appears that P.W. 1 slapped accused No.1 on account of negligence in performance of his duties, sometime in the afternoon. On the same day at about 9 p.m. P.W.1 realized that his second daughter Nikita was not in the house, though other two daughters and 2 sons were present. P.W.1 has a joint family with his brothers and father and he started searching for Nikita but in vain. At about 11.20 p.m. on the same day, he went to Sinnar Police Station and lodged the missing complaint (Exh. 77). On 1-11-2003, P.W.1 started searching for Nikita but she was not traceable and on 2-11-2003 he went to the police station at about 7.30 p.m. and lodged a complaint which was reduced in writing by P.I. Dattatraya Pundlik Pawar (P.W. 13) and registered as an FIR (Exh.79). Additional statements of P.W. 1 were recorded on 3-11-2003 and in the FIR, P.W.1 disclosed the names of accused Nos. 1 and 2, the persons who had allegedly kidnapped his daughter Nikita. Accused No.2 was taken in custody, whereas accused No.1 was claimed to be absconding. During the course of investigation by P.W. 13 Dattatraya Pawar, statements of some persons were recorded and it was revealed that accused No. 1 was visiting the house of his parents (accrued No.4 and 5) at Nashik and accused No.3 was helping him. On 6-11-2003 accused Nos. 3 to 5 came to be arrested and presented before the learned Judicial Magistrate First Class at Sinnar for remand.
On 25-11-2003, P.W.12 Ramchandra Desai received an information on telephone that a male dead body was seen floating in the Well located behind Udyog Bhavan in Malegaon Industrial Area and in the agricultural land of Shri Kalantri. P.W. 12 therefore reached at the said well along with his staff and saw the dead body floating and the fire brigade was also called on the same location at about 11 p.m. A torch light searching party realized that the dead body was decomposed and it would not be advisable to take it out in the night. Hence on the next day i.e. on 26-11-2003 they again went back along with P.W. 9 Dr. Dattatraya Gadakh and the dead body which was without a head was extricated from the well, postmortem was done by P.W. 9, P.M notes at Exh.97 stated that the cause of death could not be ascertained. P.W.11 Narayan Jadhav the father of P.W.1 allegedly identified the dead body to be of his grand daughter Nikita and it was handed over to P.W.1 who performed the last rites. Some articles were sent to Chemical Analyzer and the reports at Exh. 47, 48 and 48A were received by P.W. 14 Baban Tukaram Segar, the Investigating Officer. On 17-4-2004 accused No. 1 came to be arrested in connection with Sessions Case No. 126/2004 and the Investigation Officer sought his custody from Ambad Police Station. The Investigating Officer claimed the recovery of the articles like bicycle on the basis of the statement made by the accused while in custody on 27-4-2004 (Exh.88). On completion of investigation P.W 14 filed the charge sheet and as the case was exclusively triable by the Sessions Court, it was committed. Charge was framed on 3-11-2004.
3 The prosecution examined in all 14 witnesses and 3 of them being police officers i.e. P.W. 12 Ramchandra Desai, P.W. 14 Dattatraya Pawar and P.W.14 Baban Segar. It mainly relied upon the evidence of P.W.1 Mangesh Jadhav, P.W.2 Jagan Pandurang Katare, P.W. 3 Popat Jadhav, P.W. 4 Babasaheb Magar, P.W. 8 Yogesh Nana Donde, P.W.5 Kashinath Bhalerao. P.W. 6 Avinash Matang and P.W. 7 Bhagwan Satve were the panch witnesses and P.W. 11 Narayan Jadhav, the father of the complainant had identified the dead body recovered from the well on 26-11-2003. The prosecution case is entirely based on circumstantial evidence.
4 In the statements recorded under section 313 of the Code all the five accused denied the charge and claimed that they were falsely implicated. As per accused No.2, she was arrested by the police on 1-11-2003 from her house and accused No.3 claimed that on the very next day i.e. on 2-11-2003 he was picked up by the police and was roped in with mlafide intention. However, accused No.2 when she was asked whether she wanted to say anything more about the case while recording her statement under section 313 of Cr.P,C., she stated "I had killed Nikita. It was me who had thrown Nikita into the Well. I had stated this fact to Advocate more than many times". Consequent to this statement it appears the defence Counsel representing all the accused requested the Court to discharge him for accused No.2 and the said order came to be passed on 17-9-2008. On 1-10-2008 the trial Court had taken accused No.2 in the witness box, when she requested for defence advocate to be appointed by the Government and hence her request was considered and another advocate was appointed for her on 10-10-2008. However, on 1-10-2008 itself the learned Judge proceeded to record her depositions and she was cross-examined by the learned Special PP. We have noted that these depositions have been relied upon substantially by the trial Court as an evidence in corroboration of the prosecution case as depicted through P.W. 2, P.W.3 and P.W.4. and by accepting the written arguments submitted by the learned Special Public Prosecutor at Exh. 122.
5 The learned trial Judge framed the following issues :-
1. Whether the prosecution proves that dead body which was found on 26th November, 2003 allegedly in Kalantri's well near Sinnar was of Nikita Mangesh Jadhav?
2 Whether the prosecution proves that Nikita Mangesh Jadhav, a Minor Girl was taken away from the lawful
guardianship of her parents and near the house of Complainant Mangesh Narayan Jadhav on 31st October, 2003 in the evening? 3 Whether the prosecution proves that the death of Nikita was homicidal, and not accidental when her dead body was found inside Kalantri's well in the vicinity of Sinnar? 4 Whether the prosecution proves that it was an act of culpable homicide and whether Accused No.1 and 3 were
responsible for the homicidal death of Nikita?
5 Whether the prosecution proves that Accused No.1 and 3 by throwing the dead body of Nikita into Kalantri's well after committing Nikita's murder had caused disappearance of the evidence of their commission of offence of murder in order to avoid legal punishment therefor?
6 Whether the prosecution proves that Accused No.4 and 3 had harbored Accused No.1 or/and concealed him knowing that he had committed an offence punishable with capital punishment with an intention of screening him from legal punishment?
7 What offence is said to have been committed and by whom?
8 What order?
Issue Nos. 1 to 3 and 5 were held to be proved, whereas issue No.4 was held to be proved only against accused No.1. Issue No.6 was held to be not proved and that is how accused Nos. 4 and 5 came to be acquitted of all charges.
6 Admittedly, accused No.1 has not filed any appeal challenging the order of conviction and sentence under section 374 of the Code. However, Section 368 states that in any case submitted under Section 366 of the Code the High Court -
(a) may confirm the sentence, or pass any other sentence warranted by law, or
(b) may annul the conviction, and convict the accused of any offence of which the Court of Sessions might have convicted him or order a new trial on the same or on amended charge, or
(c) may acquit the accused person;
Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed off. 7 Shri Mohite with Shri Bhosale, the learned Counsel for the accused submitted that the trial was vitiated; the case of the prosecution based on the circumstantial evidence implicating accused No.1 in kidnapping and causing alleged murder of complainant's daughter Nikita was not proved beyond reasonable doubts; all the witnesses relied upon by the prosecution even read as it is, did not make out the case inspiring coincidence to hold that accused No.1 (alone) had caused the homicidal death of Nikita. It was further submitted that there was no medical evidence to identify the dead body whether it was of a male or a female and whether it was of Nikita, as it was fully decomposed. Even on the last seen theory based on an extra judicial confession separately made by accused No.1 to P.W.3 Popat Adhav, has not been corroborated and the extra judicial confession being a very weak piece of evidence, it could not have been accepted unless it was corroborated. On this point, Shri Mohite, the learned Counsel for the accused relied on the decisions in the case of State of Punjab Vs. Bhajan Singh and others, (AIR 1975 258) and Pakkirisamy V. State of T.N. (1997) 8 SCC 158. He pointed out that the learned trial Judge has treated, the evidence of accused No.2 as recorded on 1-10-2008, as a piece of corroborative evidence of the material prosecution witnesses viz. P.W.2, P.W.3, and P.W.4. It was contended that accused No.2 could not have been examined as the prosecution witness by the Court, unless he was represented by an advocate. In addition, in case, accused no.2 was sought to be made as an approver, her evidence could not have been recorded unless she had submitted an application under section 307 and it was allowed by following the procedure as set out under section 306 of the Code. Reliance in this regard has been placed on the decision in Jabar Singh Vs. Vipin Kumar Jaggi and others, [(2001) 8 SCC 289]. Shri Mohite read out the depositions of P.W2,. P.W.3, and P.W. 4, who are the star witnesses of the prosecution case and submitted that even the substantial evidence before the Court taken as it is, did not prove the complexity of accused no.1 in the offence beyond reasonable doubt and there are vital links which were not proved and thus, the findings recorded by the trial Court against the present accused holding him guilty for the offences punishable under Sections 363, 302, and 201 are merely ipse dixit and are not supported by any reliable evidence. Shri Mohite therefore prays for an order of acquittal by setting aside the order of conviction and sentence recorded in Sessions Case No. 47 of 2004 i.e the order under confirmation.
8 Shri Dedhia, the learned APP on the other hand, supported the order under confirmation in its totality and urged to allow this application for confirmation under Section 366 of the Code. He submitted that the last seen theory as was put up before the trial Court through the evidence of P.W. 2 Jagan Katare has been proved by the prosecution and the trial Court did not commit any error in basing conviction on the extra judicial confession made by accused No.1 to P.W. 3 Popat Adhav. He submitted that the complainant and accused No.3 were known to each other, accused was working in the Video Parlour run by complainant and the incident of slapping to the accused No.1 by the complaint was the motive for which the accused wanted to teach a lesson to the complainant and therefore he kidnapped Nikita. It was further submitted that the dead body recovered from the well was that of Nikita and none else, as it was identified by P.W. 11 Narayan Jadhav, her grand-father. The learned APP further pointed out that in Sessions Case No. 126 of 2004 the respondent-accused came to be convicted and sentenced, he had kidnapped a minor girl of 9 years and raped her and those charges were proved against him in Sessions Case No. 124 of 2006. It was urged that he is a habitual offender targeting the minor girls as his victims and engaged in heinous crimes from time to time indicated that he was beyond any reformation. The learned APP therefore, urged to confirm the death sentence as awarded by the trial Court. 9 Before we proceed to deal with the rival submissions made before us on merits, we must note from the police papers as are available on record that there is nothing to support the prosecution case that accused No.2 was arrested any time prior to 6-11-2003 on which date accused Nos. 3 to 5 were produced before the learned JMFC for remand. The complainant and accused No.1 are known to each other, accused No.1 was working for the complainant and accused No.1 is also known to the material witnesses like P.W.2 Jagan Katare, P.W. 3 Popat Adhav and P.W.3 Magar. Malegaon has an industrial area and it is almost like part of Sinnar town. The location maps placed on record, through the evidence of P.W. 4, indicated that the subject well is at a distance of 100 meters behind the Udyog Bhavan building located in the industrial estate. Malegaon is a small village and it does not take more than 5 minutes by walk from one end to the other of the said village. Accused Nos. 1 and 2 were not staying with accused Nos. 4 and 5 at Nashik and they had their own home at Vaidu Wadi at Sinnar. Accused No.3 is the maternal cousin of accused No.1 and in the FIR at Exh. 79 registered, the names of only accused Nos. 1 and 2 appeared as culprits. 10 Coming to the very first issue as to whether the dead body that was recovered from the well was that of Nikita, the daughter of P.W. 1, as noted earlier, it was all along the case of prosecution till AD No.75/2003 was recorded by Ramchandra Desai P.W. 12 that it was body of a male. In his complaint at Exh.77, P.W. 1 had stated that when Nikita was reported to be missing, she was wearing Punjabi dress in blue colour and had a tight pony tail. When the dead body was recovered from the well on 26-11-2005 it was without head and the upper limb was covered by a T shirt, where as on the lower limb there was a elastic trouser in blue colour. These T shirt and trouser did not correspond to the Punjabi dress and despite this, the learned trial Judge accepted that the prosecution proved that it was the dead body of Nikita only on the ground that it was identified by P.W. 11 Narayan Jadhav and the complainant. The post-mortem report at Exh.94 was signed by P.W. 9 Dr. Gadakh. He claimed that though he was MBBS, he had conducted 165 post mortems and thus was well experienced. In his cross-examination he admitted that in column No. 15 of the postmortem note that there was no mention about the gender of the body. In his examination-in-chief he stated that the death of the female girl would have occurred about 25 to 28 days prior to postmortem was conducted and after 21 days of death the body would start decomposing. He also stated that the internal organs were decomposed. As per him the shape of the pelvic was gunaecoid and therefore it was a body of a female. However, in the cross-examination he admitted that in the post-mortem notes there was no such mention that shape of pelvic was gynaecoid. He also admitted that the bones as seen of the body could have been of the person of the age about 10 years. He also admitted that since the head was separated from the trunk and since the face was totally decomposed it was difficult to tell and confirm the opinion that the head was of the said trunk. The postmortem was conducted on 26-11-2003 and the doctor had stepped in the witness box on 27-6-2008 i.e. after about 5 years and he stated before the Court that the shape of pelvic was gynaecoid that too without any documents available with him, while he was deposing before the Court (Exh.94). On the basis of this evidence of the doctor it would be very difficult to ascertain that the dead body was of a female. We fail to understand why the dead body was not subjected to DNA test which was a sure way of determining the gender of the dead body. No explanation has come for the said failure through the evidence of P.W. 9 Dr. Gadakh or P.W.12 Ramchandra Desai as well as P.W. 14 Baban Segar being the Sr. Police Officer. The learned trial Judge on this issue considered the evidence of accused No.2 and P.W.3 Popat Adhav as well as P.W. 11 Narayan Jadhav and held that the prosecution proved that the dead body was of Nikita. We do not agree with these findings which are nothing more than a guess work. In the absence of an expert opinion or scientific report on record the trial Court could not have recorded such a finding.
11. Coming to the next issue of cause of death, the postmortem report clearly indicated the cause of death could not be ascertained. P.W. 9 Dr. Gadakh in his substantial evidence before the trial Court on this issue fairly admitted that it was difficult to tell if the girl was murdered or not. Even in examination-in-chief he stated that he was unable to say exact opinion of cause of death since the whole body was decomposed. When the dead body was seen floating in a well which had about 45 feet deep water, the cause of death could be accidental, suicidal, or homicidal. It has come in the spot panchanama that the well has a wall of about 6 feet in height around it and therefore, it was submitted that the possibility of accidental or suicidal death of a minor girl was ruled out. This was again guess work. If it was to be a homicidal death, obviously the person could have been first killed and the dead body thrown in the well. At the same time in case of a minor child of about 8 years, even the child could be thrown in the well alive and death may occur due to drowning. On appreciation of evidence of the doctor as well as inquest panchanama drawn at Exh.90, we are unable to support the finding that the person/child whose dead body was recovered by P.W. 12 Ramchandra Desai on 26-11-2003 died a homicidal death.
12. P.W. 11 Narayan Jadhav who was claimed to be of 62 years of age is one more witness relied upon by the trial Court to hold that the recovered dead body was that of Nikita. The trial Court also referred to the extra judicial confession made by accused No.1 to P.W. 3 and the depositions of accused No.2 and held that the totality of these circumstances proved the dead body would be that of Nikita. No DNA test was ever conducted during the course of investigation so as to determine whether the dead body was of the daughter of the complaint or any other child and unless such a test was done, it would be difficult to hold, beyond a reasonable doubt, that it was the dead body of the missing girl Nikita, moreso when the dead body was decomposed as stated by P.W. 9 Dr. Gadakh and other panch witnesses. As noted earlier P.W. 9 Dr. Gadakh admitted before the trial Court that it was difficult to ascertain whether the trunk and the separated head was of the same body. Conducting DNA test in these circumstances could have been the safest and only reliable way to determine whether the recovered body was that of Nikita.
13 Now coming to the finding recorded by the trial Court on issues Nos. 2, 4 and 5, let us examine the prosecution evidence as it came through the depositions of P.W. 1 Mangesh, P.W.2 Jagan Katare, P.W. 4 Popat Adhav and P.W. 4 Babasaheb Magar. When P.W. 1 filed the missing complaint on 31-10-2003 at Exh.77, he did not indicate the name of any person he suspected. It was only on 2-11-2003 at about 7.15 p.m. he lodged his FIR and alleged that accused Nos. 1 and 2 had kidnapped his daughter Nikita. Though he stated that he had came to know about the involvement of accused No.1 through some persons, he did not name the said persons /informers in the said FIR. He stated that accused No.1 was resident of Sidharth Nagar, Zopadpatti, Nashik, which was far from fact. While before the trial Court he stated that on 1-11-2003 he searched for Nikita but she was not found. While he continued his search on 2-11-2003 Shri Jagan Katare (P.W.2) had told him that on 31st October, 2003 he had seen accused No.1 on a blue colour bicycle and Nikita accompanied him and this information he came to know from Jagan at about 9 a.m. on 2nd November, 2003. He lodged the FI.R. at about 7.35 p.m. on 2-11-2003 but did not name the informer Shri Jagan Katare,whom he had met at 9 a.m. on the same day. He further stated that he went to the house of accused No.1 Pappu where he was residing at that time and searched for him till evening on 2-11-2003. On 3-11-2003 also he continued to look for accused No.1 and between 10 and 11 a.m. On the same day he met a person by name Shri Magar (P.W.4) who was known to him.Shri Magar told him that he had seen accused No.1 in the morning at Jindal Company and had asked accused No.1, if he had taken Nikita with him. There was a scuffle between accused No.1 and P.W.4 and thereafter accused No.1 ran away from the spot. In his cross-examination he admitted that there was no record to show that accused No.1 was working with him. He also admitted his house in Malegaon is located on main road and is surrounded by shops, STD Booth etc. from both sides. There is a brisk movement of the people on the road. He also admitted that he is a well to do man in the village, of good reputation and therefore known to everyone in the village. When a specific question was asked to him he stated that T shirt and trouser shown to him before the Court were treated by him as a Punjabi dress. He admitted that in the FIR filed by him he had not disclosed that accused No.1 was in his employment, though he stated so to the police. He also admitted that he had good relations with the police. He denied the suggestion that he had falsely implicated the accused. P.W.2 Jagan Katare whose occupation was labour and he was knowing accused No.1 as he was employed with P.W.1, stated that on 31-10-2003 when he was standing in front of his house, he had seen accused no.1 taking Nikita with him on his bicycle of blue colour. He further stated that on 2-11-2003 P.W. 1 and his father met him, as Nikita was missing and they made inquiry about her. P.W.1 asked him whether he had seen his missing daughter and he replied that he had seen Nikita with accused No.1 in the night on 31-10-2003 when he was carrying Nikita on his bicycle. In his cross-examination when he was confronted with his statement recorded by the police, he stated that police had not recorded the statement that he had told them that he had seen Nikita with Pappu Salve on 31-10-2003 and the same information was given by him to P.W.1. He admitted that such statement did not find place in his statement recorded by the police. This witness is unreliable even on other counts. If he was a next door neighbour of P.W.1 and had seen Nikita being taken away by accused No.1 on bicycle on 31-10-2003 at about 8 p.m. and when he was aware that the family was searching for her, but he did not go and pass on the same information to P.W.1 on 1-11-2003 or 2-11-2003, until P.W.1 went to his house. He stated in his examination-in-chief that he had gone in search of Nikita with accused No.1. If this witness had informed P.W.1 on 2-11-2003 and that too in the morning that he had seen Nikita on the bicycle of accused No.1 on 31-10-2003, there is no explanation coming forward as to why the same was not mentioned in the FIR and he admitted in the cross-examination that the news of Nikita missing spread in the village on the same night and denied the suggestion that he told P.W.1 on the very next day that he had seen Nikita in the company of accused No.1. He tried to give the explanation that on 31-10-2003 he reached Nashik at about 9 p.m. and came back at 11 p.m.. Even then nothing stopped him from going to the house of P.W. 1 on 1-10-2003 so as to inform that he had seen Nikita in the company of accused No.1 on 31-10-2003 at about 8 p.m. The evidence of this witness does not inspire confidence as he does not appear to be natural witness speaking the truth.
P.W.3 Popat Adhav a resident of Malegaon admitted that he is having close relations with P.W.1 and was working with M/s Larsen and Turbo at MIDC Malegaon. He was holding the post of loader and his duty would be in shifts. He did not remember in which shift he was on 3-11-2003. He went on to state that on 31-10-2003 he visited the house of P.W.1 at 9 p.m. and came to know that Nikita was missing and all her family members were searching for her. He too joined the search for the whole night but she could not be traced. On 3-11-2003 at about 12 noon he saw accused No.1 near the Exempler Company in Malegaon MIDC area. The accused No.1 was on Malegaon Pune Road and was intercepted and accosted by him. He asked the accused No.1 as to why he had taken Nikita and on this, accused No.1 told him that P.W.1 had slapped him on his face and when he informed this fact to his wife she told him to bring the daughter of P.W.1 so that they could teach him a lesson. This extra judicial confession of kidnapping purportedly made by accused No.1 to P.W. 3 has been relied upon by the trial Court in support of its finding that the accused No.1 had kidnapped and killed Nikita and thrown her body in the well located behind Udyog Bhavan on 31-10-2003. In his cross-examination he denied all the suggestions but there is no corroboration to this extra judicial confession and unless corroboration is available, such an evidence is very weak so as to base a conviction. In the case of Bhajan Singh (Supra) the Supreme Court has held that an extra judicial confession by itself is a very week type of evidence and when the Court, taking into consideration, sorrounding circumstances, entertains the doubt about its voluntary nature, it will not be safe to rely upon it. Consequently, in the case of Pakkirisamy (Supra) it was held as under:-
" It is a rule of caution that the court would generally look for an independent reliable corroboration before placing any reliance upon an extra-judicial confession. It is no doubt true that extra- judicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is cast upon the Court to look for corroboration from other reliable evidence on record. "
The next witness relied upon by the prosecution is P.W.4 Babasaheb Magar. Originally he is the resident of Mantha, Dist. Jalna but had shifted to MIDC Malegaon to work as a construction worker (Bigari). He stated in his examination-in-chief that on 3-11-2003, while he was going for his work he had met accused No.1 and questioned him by holding his hand as to why he had kidnapped Nikita, the daughter of P.W.1. On this accused No.1 was frightened and started running away from the spot and disappeared from the spot. He went back to Malegaon and informed P.W. 1 as to what had transpired between him and the accused earlier. It is interesting to note that during the course of investigation, the Investigating officer had recorded supplementary statement of P.W.1 and in that the said information as was disclosed before the Court by P.W. 4 appears but the said supplementary statement has not been exhibited and thus it is not part of the record and therefore it could not be relied upon.
14 The sifting of evidence of these 4 witnesses does not take prosecution case anywhere so as to implicate the accused No.1 for the charge of kidnapping, murdering and throwing the dead body of Nikita in the well behind Udyog Bhavan. The trial Court allowed accused No.2 to be a prosecution witness on the basis of her statement recorded under Section 313 of Cr.P.C. It is well settled that the statement of the accused recorded by the Court under Section 313 of the Code is not evidence. There is nothing wrong if an accused steps in the witness box to defend his/her case. We have perused the Rozanama of the trial Court. On 17-9-2008 the trial Court discharged Shri Pathan, from acting as an advocate for accused No.2 and allowed to be continued for the other accused persons as the defence advocate. On 1-10-2008, the trial Court referred the request of accused No.2 to appoint advocate to defend her case, to the Legal Services Authority and did not wait for the said appointment. Instead accused No.2 was taken in the witness box and the learned Judge conducted her examination-in-chief. The learned Special Public Prosecutor cross-examined her on the same day. She stated in her examination-in-chief that she had kidnapped Nikita, on 31-10-2003 in the night from the house of P.W.1 and she killed her by throttling her neck and threw her into the well behind Udyog Bhavan building. At this stage, we do not wish to comment on the cross-examination conducted by the learned Special Public Prosecutor but the fact remains that he kept quiet when the trial Court proceeded to record the evidence of the accused as a prosecution witness, when she was not assisted by any Advocate. The depositions made by accused No.2 in cross-examination have been discarded by the trial Court in toto but surprisingly, the learned Judge proceeded to accept this evidence as corroboration for the evidence of P.W.2, P.W.3 and P.W.4, so as to hold that it was accused No.1, who had kidnapped Nikita, killed her and thrown her dead body in the well on 31-10-2003. An application under section 307 of the Code was not moved by the Special Public Prosecutor at any time before the trial Court and if such an application was moved, the accused No.2 would be required to be granted a pardon by following the procedure under section 306 of the Code and unless this procedure was undergone, she could not have been examined as a prosecution witness which is a well settled position in law. It appears that the attention of the trial Court was not in fact invited to the scheme of section 306 and 307 of the Code. Shri Mohite,learned Counsel for the accused No.1 is therefore, right in his submissions that the trial itself is vitiated on this ground alone and it was not permissible for the trial Court to rely upon the evidence of accused No.2 as recored on 1-10-2008, in any manner and once this evidence is discarded, or excluded from considerations, there is no corroboration to the evidence of P.W.3 Popat Adhav. We have also noted from the record that on 10-10-2008 one Shri Vaishnav came to be appointed as an Advocate for accused No.2 and he made an application before the trial Court to subject accused No.2 for a psychological test. The learned Judge was pleased to reject this application by noting that till the stage the statement under section 313 was recorded she was in a sound mental condition and the application was made on frivolous ground. We do not wish to comment any further on the procedural aspect followed by the trial court in the instant case. We have also noted that in Sessions Case No. 126/2004, the order of conviction and sentence was pronounced on 24-1-2005 against accused No.1 and it was placed on record in the instant trial at Exh. 113. This conviction of the accused No.1 in Sessions Case No. 126/2004 appears to have overwhelmed the learned trial Judge. The evidence of the prosecution did not support the findings recorded by the trial Court holding that Nikita was kidnapped, murdered and thrown in the well by accused No.1 on 31-10-2003 some time in the night. No suspicion shall, however strong, can be a substitute for the proof. 15 The prosecution has relied upon two other circumstances, namely bangles found on the decomposed dead body and some other lying near the dead body, as per the inquest panchanama and spot panchanama Exhs. 90 and 102 respectively. The prosecution case is that these were metal bangles and therefore, we fail to understand the prosecution case because if the bangles are metal bangles, there is no explanation coming forward to how such metallic bangles were found floating along with the decomposed body and this raises doubt about the credibility of this circumstance. The prosecution also claimed to rely upon the recovery of a blue coloured bicycle beneath the MIDC water line. P.W.6 Avinash Matang was the witness to the statement recorded at Exh.88 under section 27 of the Indian Evidence Act and the prosecution claims that as per the said disclosure statement made along with the panch witness the police team had recovered blue coloured bicycle as was shown by the accused. The offence has taken place on 31st October, 2003 and this recovery is made on 27th April, 2004 i.e. after about 6 months. The prosecution also alleged that the accused was absconding till he was arrested by the Ambad Police Station in connection with some other case on 17th April, 2004. The MIDC water line is located few meters away from the main road and it is unbelievable for a period of 6 months, nobody would have noticed that the bicycle lying near the water line. There are no other circumstances believable that it was a secluded place inaccessible to any one and being so that no one would have visited it during the period of 6 months. Thus both the circumstances sought to be relied upon by the prosecution are very weak to support its case against the accused No.1.
16 We have also noted that at the initial stage the investigation had suffered major infirmities and it was sloppy. The trial before the learned Additional Sessions Judge could not be said to be fair and transparent. Article 21 of the Constitution guarantees, as a matter of right, to the accused of fair and transparent trial. Article 20(3) of the Constitution of India states that no person accused for any offence shall be compelled as a witness against himself and exception to this is a scheme of section 306 and 307 of the Code. The prosecution did not follow this procedure despite the fact that accused No.2 did not step in the witness box to defend her case and she acted as a prosecution witness at a stage after her statement under section 313 of Code was recorded. When any public prosecutor appears before the trial Court, he is duty bound to assist the Court in ensuring that the trial is conducted in a fair and transparent manner. The trial in Sessions Case No. 47 of 2004 failed to come to these expectations. The prosecution must ensure that a guilty person does not escape from the clutches of the penal law and not that every trial must result in conviction. The prosecution plays a vital role in assisting the trial Court so as to ensure that the trial is conducted fairly and transparently and an innocent person is not held guilty. In our considered opinion, the learned Special Public Prosecutor failed to assist the trial Court so as to ensure that the trial was conducted in a fair, legal and transparent manner. In his lengthy written arguments filed at Exh. 122, the Special Public Prosecutor has substantially relied upon the evidence of accused No.2 when she was in the witness box in support of her request to change her defence advocate and the said evidence could not have been relied upon unless she was examined as a prosecution witness on her turning as an approver for which the compliance of section 306 and 307 of the Code is a precondition.
17 At our request, the Director of Prosecution for the State of Maharashtra remained present before us during the hearing of this appeal and we hope that he would take due steps to issue suitable directions to the prosecutors all over the State of Maharashtra after obtaining approval from the Minster for Home, to whom he is sub-ordinate under section 25(A) of the Code and under whose administrative control he is functioning as the head of prosecution under the said Section.
18 The learned APP urged before us that it would be appropriate to direct retrial in Sessions Case No. 47/2004, more so because accused Nos. 2 and 3 have already suffered sentence. We have perused the record and we do not find that any useful purpose would be served in ordering retrial and more so when we have noted that the DNA test was not conducted and hence there was no evidence to ascertain whether the dead body recovered was of Nikita and whether it was a homicidal death. The police file also does not indicate any material evidence, prima facie, which could assist the prosecution in proving its case in a fresh trial.
19 In the premises we are satisfied that the prosecution failed to prove tis case that accused No.1 had kidnapped Nikita, the minor daughter of P.W.1, caused her homicidal death, and thrown her dead body in the well located behind Udyog Bhavan building in MIDC area at Malegaon. The order of conviction as recorded by the learned Additional Sessions Judge in Sessions Case No. 47/2004 against accused No.1 is, therefore, unsustainable and it deserves to be quashed and set aside. Once the order of conviction is set aside, the order of sentence ceases to exist and consequently the same also must go.
20 Hence , we pass the following order.
(i) The Confirmation Application is rejected.
(ii) The order of conviction and sentence passed against the accused No.1 in Sessions Case No. 47 of 2004 by the Learned Additional Sessions Judge, Nashik on 27th November, 2008 is hereby quashed and set aside. (iii) Accused No.1 is acquitted from the offences punishable under section 363 and 302 and 201 r/w section 34 of the Indian Penal Code in Sessions Case No. 47 of 2004.
(iv) We direct that the accused be released forthwith, unless he is required to be continued in prison in any other case.
( A. A. SAYED, J.)