Case Note & Summary
This matter involved a confirmation case and criminal appeals arising from the judgment of the Additional Sessions Judge, Greater Mumbai, convicting two accused for kidnapping and murder of a minor child for ransom. The trial court sentenced Accused No.1 to death and Accused No.2 to life imprisonment, and referred the death penalty for confirmation to the High Court. Accused No.3 was a juvenile and separately dealt with, while Accused Nos. 4 and 5 were acquitted. The case originated from an incident on 27 May 2012, when the victim, son of Rajesh Bhadange (PW1), went missing. PW1 received ransom calls from unknown numbers, which he recorded using a mobile phone handed over by the investigating officer. An employee, Yogesh Patange, allegedly identified the caller’s voice as that of Accused No.1 Imtiyaz, but he was not examined. The accused were arrested, and recoveries of mobile handsets and SIM cards were made. On the accused’s disclosure, the police discovered the victim’s concealed body. The prosecution relied on the following circumstances: previous acquaintance between PW1 and the accused as his employees; last seen evidence placing the victim with the accused on the day of disappearance; ransom demand calls recorded and matched with the accused’s voice via auditory analysis; and the discovery of the body. Test identification parades were held two months after arrest, where witnesses identified the accused. The defense contested the conviction on several grounds. They argued that the employment and acquaintance were not proved, the last seen witnesses were untrustworthy and under police influence, the TIP was irregular and delayed, the arrest date was fabricated, the mobile recoveries were not linked to the accused, the recording of ransom conversations was not properly established, and the voice analysis report was flawed. The judgment excerpt ends during the defense arguments, without the court’s analysis or final decision. The High Court had reserved judgment on 15 July 2019 and pronounced it on 14 August 2019.
Issue of Consideration
Whether the prosecution had proven the chain of circumstantial evidence beyond reasonable doubt to sustain the conviction of the accused for kidnapping and murder, and whether the death penalty was justified.
Law Points
- Circumstantial evidence
- Last seen theory
- Admissibility of tape-recorded conversation
- Voice identification
- Test Identification Parade
- Discovery under Section 27 Evidence Act
- Proof of previous acquaintance
- Call Data Records
Case Details
2019 LawText (BOM) (08) 85
Confirmation Case No. 3 of 2018, Criminal Appeal No. 747 of 2018, Criminal Appeal No. 859 of 2019
B.P. Dharmadhikari, Swapna Joshi
J.P. Yagnik, Ravi Dwivedi, Fakruddin Khan, Saima Ansari
The State of Maharashtra (Confirmation Case), Azad Mehmuddula Ansari (Criminal Appeal No. 747/2018), Imtiyaz Ahmad s/o Mohd. Sadik Ali Shaikh (Criminal Appeal No. 859/2019)
Imtiyaz Ahmad s/o Mohd. Sadik Ali Shaikh (Confirmation Case), The State of Maharashtra (Criminal Appeals)
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Nature of Litigation
Criminal appeals against conviction and sentence, and confirmation case of death sentence.
Remedy Sought
The accused sought acquittal; the State sought confirmation of the death penalty.
Filing Reason
The trial court convicted the accused for kidnapping and murder, leading to appeals by the accused and a mandatory confirmation case due to the death sentence.
Previous Decisions
The Additional Sessions Judge, Greater Mumbai convicted accused No.1 Imtiyaz and accused No.2 Azad for offences under sections 302, 363, 364-A, 201 read with 34 IPC and sentenced accused No.1 to death and accused No.2 to life imprisonment, by judgment dated 23/05/2018.
Issues
Whether the prosecution established the previous employment and acquaintance of the accused with PW1 beyond reasonable doubt.
Whether the evidence of last seen witnesses (PW2, PW3, PW7) was reliable and admissible.
Whether the test identification parade conducted after two months was vitiated.
Whether the tape-recorded ransom conversations and voice analysis report were admissible and proved.
Whether the recovery of mobile handsets and SIM cards was properly linked to the accused.
Whether the disclosure statement and discovery of the body under Section 27 of the Evidence Act were valid.
Whether the chain of circumstantial evidence was complete and consistent with the hypothesis of guilt.
Submissions/Arguments
The defense argued that the employment and acquaintance were not proved by clinching evidence.
The last seen witnesses were untrustworthy, as PW2 and PW3 were poor individuals susceptible to police pressure, and PW7 had visual impairment and prior omissions.
The TIP was irregular because the witnesses had been shown photographs and had visited the police station, and it was held after an inordinate delay.
The date of arrest was fabricated; the accused were actually in police custody earlier, as shown by RTI information.
The mobile handsets and SIM cards seized could not be connected to the accused as no ownership or working condition was established.
The recording of the ransom conversations was not supported by proper panchanamas; the mobile handset used for recording was not properly accounted for, and the employee who identified the voice was not examined.
The voice analysis report was flawed because the recorded conversation contained multiple voices, and the report did not specify which part matched.
Judgment Excerpts
The Additional Sessions Judge, Greater Mumbai has by judgment and order dated 23/05/2018 convicted accused no. 1 Imtiyaz and accused no. 2 Azad for the offence punishable under sections 302, 363, 364-A, 201 read with 34 IPC and sentenced accused no.1 to death and accused no.2 Azad to life imprisonment and fine of Rs.25,000/-, in default of fine he has to suffer RI for one year.
Sessions Court has not sentenced both the accused persons for other minor offences i.e. under section 363 and 201 IPC.
The trial court has based its judgment on the circumstances like : -- (i) Previous acquaintance of PW 1 Rajesh (father of deceased child ) with accused nos. 1 and 2 as they were/are employees. (ii) Deceased was last seen alive with the accused persons on 27/05/2012. (iii) Call demanding ransom were received by PW 1 Rajesh Bhadange (father of deceased child victim) on his mobile from the unknown numbers. (iv) Employee of PW 1 by name Yogesh Patange identified the voice of caller as that of Imtiyaz. (v) After arrest of accused no. 1, mobile handsets with IMEI number from which calls were made to PW 1 Rajesh were seized from him. Similarly un-used SIM cards were also seized from him. (vi) Call Data Records ie CDRs support the calls made by accused no.1 to PW Rajesh demanding ransom. (vii) The demands made by accused no. 1 were recorded in the memory card in Nokia mobile handset given by PW-20 IO Shri Desurkar and voice in the said conversation matches with the sample voice of accused no. 1 as per CFSL report. (viii) Accused nos. 1 and 2 led the panch witnesses and police to the site where the body of deceased child was concealed, leading to discovery under section 27 of the Evidence Act.
The respective counsel for the accused persons submit that the alleged recorded conversation in the said memory card in Nokia mobile of PW 20, therefore becomes redundant.
Procedural History
The trial court convicted the accused on 23/05/2018; the State filed a confirmation case for the death penalty; the accused filed separate appeals; the High Court heard arguments on 15/07/2019 and pronounced judgment on 14/08/2019.
Acts & Sections
- Indian Penal Code, 1860: 302, 363, 364-A, 201, 34, 120B
- Indian Evidence Act, 1872: 27
- Code of Criminal Procedure, 1973: 161
