STATE OF MAHARASHTRA COMPLAINANT Vs. DNYANESHWAR SURESH BORKAR

JUDGEMENT

(1.) The Confirmation Case under Section 366 and the Appeals under Section 374 of Cr.P.C. arise from the order of conviction and sentence dated 18th December 2004 passed by the learned Addl. Sessions Judge at Pune in Sessions Case No.236 of 2001. Though there were three accused initially, the trial against accused no.3, who was a juvenile accused, was separated and, therefore, accused nos.1 and 2 came to be tried in the said Sessions Case for the offences punishable under Sections 120B, 364A simplicitor or Section 364A read with Section 34, Section 302 simplicitor or Section 302 read with Section 34, Section 201 simplicitor or Section 201 read with Section 34, Section 384 simplicitor or Section 384 read with Section 34 and Section 506 simplicitor or Section 506 read with Section 34 of IPC. The learned Addl. Sessions Judge was pleased to acquit both the accused for the offences punishable under Section 120B, Section 384 read with Section 34, Section 506 read with Section 34, Section 364A read with Section 34 or simplicitor under all these Sections. However, accused no.1-Dnyaneshwar Suresh Borkar was found to be guilty of the offence punishable under Section 302 and he has been sentenced to death (hanging till death), subject to confirmation under Section 366 of the Code by this Court. Accused no.1-Dnyaneshwar has also been found guilty for the offence punishable under Section 364 of IPC and has been sentenced to imprisonment for life and to pay a fine of Rs.5000/-, in default thereof to suffer RI for six months. Accused no.2-Amit @ Bapu Nanasaheb Bhandwalkar has been found to be guilty of the offence punishable under Section 302 read with Section 34 and has been sentenced to life imprisonment and to pay a fine of Rs.5000/-, in default to suffer RI for six months. Both the accused have been found guilty for the offence punishable under Section 201 read with Section 34 of IPC and each of them has been sentenced to suffer RI for five years and to pay a fine of Rs.5000/-, in default to suffer RI for six months. Subject to the provisions of Section 31 of the Cr.P.C., the substantive sentences of imprisonment (excluding the death sentence) have been directed to run consecutively in the order they are given.

(2.) Dr.Ashok Mainkar - Gynaecologist and his wife Dr.Ashwini Mainkar - Ophthalmologist, who were amongst about 30 to 40 medical practitioners at Saswad, Purandar taluka, were blessed with two children - daughter-Ruta aged 14 years and son-Rishikesh aged 13 years at the relevant time and today they are a childless couple. On 4th February 2001 Dr.Mainkar left his home at Saswad for Pune between 4-30 and 5 p.m. to pick up his wife who was attending a medical transcription class and when he returned at 10 p.m. his daughter Ruta was waiting in the porch and informed that Rishikesh who had left home to attend the computer class at 6 p.m. had not returned till then. Little did the doctor know at that time that his son Rishikesh was kidnapped and murdered for a ransom. His daughter Ruta, while a college student at Pune, could not bear the shock of her brother s gruesome murder, and committed suicide in October 2003. The doctor started making enquiries about his son s whereabouts from his teacher at the computer class as well as friends and around 11 p.m. went to the Saswad police station to inform the police but was sent back by the duty police constable with a belief that the minor son must have gone out with one of the friends and would return may be late in the night or early morning. On 5th February 2001 when the doctor could not get any clue about the whereabouts of his son, he went to the police station around 10 a.m. and filed a missing report (Exhibit 122) on the basis of which PSI Kshirsagar (PW 41) of Saswad Police Station issued an alert call (Exh.140) to all the neighbouring police stations. On 4th February 2001 Rishikesh had left his home at about 6 p.m. on a Hercules bicycle, wearing wrist watch of Escort make with an apparel of greyish black colour jeans trouser and yellowish chocolate colour strip T-shirt. On 5th February 2001 the doctor couple continued their search for Rishikesh at various places but in vain. Ruta had received a call on 4th February 2001 at about 8 p.m. from a boy named Jagtap who had informed her that Rishikesh was with him and would return on the next day. Around 8.40 p.m. on 5/2/2001 he received a telephone call from a person who did not disclose his name but told the doctor "Tumhara bachha hamare pas hai. Internet khel raha hai, hamne use kuch nahi kiya". When the doctor told the caller to return his son, the caller told the doctor to keep an amount of Rs.5 lakhs ready by next day morning. The doctor was advised not to inform the police and threatened "Amchyashi gath aahe" (You have to face us). On 6th February 2001 the doctor approached the police station once again at about 6 a.m. and informed about the telephone call. This complaint was also reduced in writing (Exhibit 123), and subsequently treated as the FIR. In the mean while the police officer had contacted the telephone engineer and requested him to keep the doctor s telephone no.22553 under surveillance (the number was common for the residence as well as the hospital). Two police constables were posted at the doctor s house to monitor his telephone from 6th February 2001 onwards. At about 6.45 p.m. the doctor received a call from the same person who had called him on the earlier day and the caller disclosed his name as Salimbhai. The caller asked the doctor "Hamara kam kiya kya" and the doctor answered in the affirmative and requested the caller to hand over the phone to his son. The doctor was informed on phone that his son was playing on internet and he could talk to him after one hour. The doctor was again threatened not to contact the police and the caller disconnected the phone. The phone was monitored by the police. On 7th February 2001 the same person called the doctor at about 7.15 a.m. and asked whether the money was ready. The doctor informed him that the money was ready on the earlier day itself but nobody came to collect. The caller disclosed that he was busy and would contact the doctor around 12 noon. He received the second call at 7 p.m. and in the mean while nobody came to collect the money. In this call also the caller disclosed his name as Salimbhai and angrily asked the doctor why he had informed the police about the demand of Rs.5 lakhs. He also enquired with the doctor whether the telephone was tapped and threatened him with the consequences including elimination of his son and the entire family. The doctor was informed that on 8th February 2001 some unknown person would meet him at 12 noon and collect the money of Rs.5 lakhs and thereafter Rishikesh will be released. Both these telephone calls received on 7th February 2001 were monitored. On 8th February 2001 the doctor received the first call at 12.30 noon and the caller disclosed his name as Salimbhai and informed the doctor that the person would come to collect the money at 1 p.m. The second call came between 1-45 p.m. and 2 p.m., whereas the third call was received at 3.30 p.m. when the caller shouted at the doctor and told him that his man had visited the hospital and found the police around it. The fourth call was received at 4 p.m. from the same Salimbhai informing the doctor that he was calling from Hadapsar, Pune and the money was required to be kept near the junk jeep lying in front of a small temple on the Pune - Jejuri road after village Belsar and on which the slogan "Chalo Nashik" was written. The doctor agreed and the phone was disconnected. This call was also monitored. Salimbhai called the fifth time at 5 p.m. and uttered only one sentence, "my man will not come" and the phone was cut off. The caller was taken in custody between 5.30 to 6 p.m. on 8th February 2001 by Ashok Dagadu Kshirsagar (PW-41) PSI, Saswad police station at the relevant time by drawing arrest panchanama at Exhibit 46, from the road near Jejuri side octroi post at Saswad. His house search was made to find out whether Rishikesh was confined / locked in the house but the police did not find Rishikesh and they had to be satisfied by seizing the clothes of the arrested accused no.1, under seizure panchanama (Exhibit 47). On 9th February 2001 and as per the disclosure made by accused no.1 while in police custody, the police team went to the agricultural farm of accused no.1 at village Kumbhar valan which is also known as "chaver" and the accused no.1 showed the place where the dead body of Rishikesh was buried. The dead body was exhumed from the pit at about 9 a.m. and was found to be in a deteriorated condition. Dr.Mainkar was called and he identified the dead body to be of his son Rishikesh.

(3.) The police continued with the interrogation with accused no.1 and accused no.2 was arrested on 18th February 2001 along with the third accused Nilesh who was a juvenile under arrest panchanama Exh. 54. During the course of investigations statements of a number of persons were recorded, articles were recovered including the two-wheeler of accused no.1 and bicycle of Rishikesh. . On completion of the investigation, charge-sheets were filed against two accused on 2nd May 2001 before the learned Judicial Magistrate, First Class at Saswad who in turn committed the accused persons for trial to the Sessions Court at Pune on 6th July 2001. The charge was framed (Exhibit 5) on 14/12/2001 and the prosecution examined in all 41 witnesses. The accused did not examine any witnesses in their defence and their statements under Section 313 of Cr.P.C. (Exhibit 6 and Exhibit 7/2) were recorded on 3rd December 2004. As per the learned Sessions Judge the prosecution proved its case against the accused persons on the basis of the circumstantial evidence. As per the prosecution the chain of circumstances unerringly proved before the trial Court is as under: