Criminal appeal no- 171 of 2012
Bombay High Court
BENCH: Hon’ble Mr. Ranjit More J., Hon’ble Ms. Karnik J.
DATE OF JUDGMENT: 05-02-20
BRANCH OF FORENSIC SCIENCE: Voice analysis (Forensic Physics)
RELEVANT SECTIONS/ACTS:
Indian penal code (IPC) act, 1860
- Section 364(A) – Kidnapping for ransom, etc.
- Section 120(A) – Punishment of criminal conspiracy.
- Section342 – Punishment for wrongful confinement.
- Section 114 – Abettor present when the offence is committed.
The Arms Act, 1959
- Section 3(25) – Whoever sells or transfers any firearm, ammunition, or other arms illegally.
The Maharashtra Control of Organized Crime Act, 1999
- Section 3(1)(ii) – Imprisonment of twelve years and a fine of Rs.5,00,000/-
- Section 3(2) – Punishment with imprisonment which may extend to life.
- Section 3(4) – Any person who is a member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
The Bombay Police Act, 1951
- Sec 37(1) – Power to Prohibit Certain Acts for Prevention of Disorder
- Sec 135 – Power to Make Rules Prohibiting Disposal of the Dead Except at Places Set Apart
BACK STORY
In this case, the first F.I.R. was lodged by the Priya (victim’s daughter) on 15–Nov-2005 at about 10:00 p.m. to the Police Inspector Aagashe (P.W.No.23) with the Deccan Gymkhana police station and second F.I.R was lodged by victim’s wife on 16-Nov-2005 when she received a ransom 4-5 calls of Rs.25, 00,000/- by one of the kidnappers namely Dilip Kishor Bawiskar (Appellant No.1). She told that if she fails to make arrangements of ransom, her husband would be killed.
Now briefly stating to the fact of the case, Victim Mohan Krishnarao Gunjal (PW-4) was residing at Panchavati, Pashan, Pune along with his wife Vandana Patilsr 2/ 48 (the informant) and daughter Priya (P.W.No.2). Mohan Gunjal was carrying on the business of the construction of dams. On the eve of 15th November 2005, as usual, Mohan Gunjal went to Pan shop near Kamla Nehru Park at 7:30 p.m. with his driver Mr.Bhimrao Lone (PW- 5) and suddenly when Bhirao was returning after collecting the pans
One person approached him and asked him why he had beaten Chintu and Suddenly, one unknown person from the left side and two persons from the right side entered into the Mercedes car No.MH-12-CA-3365. They pointed revolvers on both sides of Victim (PW -4) and directed Bhimrao to drive the car and after covering the distance of 20km, Rakesh Rajput (Appellant No.2) covered the face of Bhimrao and victim with scarfs and they take them to the Flat No.5, Om Pacific Apartment, Nashik and kidnappers told victim and Bhimarao to call their residence to make arrangement of the amount of ransom.
On17-11-2005, the raid was conducted with the involvement of 2 main panch witness, PI Govind Pawar (PW-20) and Prakash(PW-9) with the help of CDR provided by Airtel to ascertain the identity of the patilsr 5/ 48 subscriber and the location of the mobile phones, and found that mobile No.9890287970 registered in the name of Rajesh Shamji Surali (P.W.No.7) at Kalyan and P.I. Govind Pawar reached Nashik to trace the location of cell phone No.9326188788 and found that the aforesaid registered in the name of Vijay Kumar Rajput who was residing at Akshardham Society, Nashik.
The raiding party broke open the main door of the flat and inside the room, they found Bhimrao (PW-5) along with two persons. They directed to up their hands. They were taken in custody. Thereafter they rescued Mohan Gunjal (P.W.No.4) from another room. Upon inquiry, these two persons told their names as Dilip Kishor Bawiskar (Appellant No.1) and Rakesh Rajput (Appellant No.2) respectively.
The raiding party during the search found two bags containing three knives, two pistols on their waistband and, two SIM cards, two mobiles, agreement of lease of the flat, etc.
The SIMs found corroborates the Pachnamas and the testimony of PW-20, Tejpal (PW- 6), Rajesh (PW-7) and Call Details Reports (“CDR” for short) become significant, and thus voice sample identification is done to prove the case facts related to the seized evidence during the raid.
BALLISTIC REPORT
The Investigating Officer sends seized revolvers to the Ballistic Expert and, the report shows that Exh.1 and 2 are pistols with magazines and Exh.3 are the three “KF 7.65 mm” pistol cartridges. Ballistic Expert has confirmed that both the pistols were in working condition and they were capable of chambering Patilsr 34/ 48 and firing 9 mm pistol cartridges. The Ballistic Expert also found residue of fired ammunition nitrite in the barrel washing of both the pistols. The three cartridges, upon examination, found to be live on test firing from the country-made pistol (Exh.2)
VOICE IDENTIFICATION REPORT
In order to prove the criminal conspiracy against the appellant no 6, the CDR voice samples referred to Central Forensic Science Laboratory (for short “CFSL”), Chandigarh along with 3 audio cassettes. From the report of CFSL, the prosecution is overwhelmed with the fact that the said report is positive. If this report is accepted then it indicates the involvement of Appellant No.6 but there is no other evidence on record to establish that Appellant No.6 was involved in the crime and he not identified by the victims and thus voice identification of Appellant No.6 is not helpful to the prosecution to prove the conspiracy in the matter. Therefore, report at Exh.270 in respect of matching voice samples of appellants and Appellant No.6 given by CFSL, Chandigarh is of no use.
JUDGEMENT
In all the above-testified evidence the involvement of an accused no 2, 3,4, 5, 6 namely not proved by the prosecution by the given voice samples so the appellant (1-2) convicted for the offense punishable under section 364-A read with section 120-B of the Indian Penal Code and they sentenced to suffer life imprisonment and directed to pay fine of Rs.1000/- each, in default they directed to undergo rigorous imprisonment for one month. The appellants also convicted for the offence punishable under section 3(25) of Arms Act and sentenced to suffer RI for one year each and to pay fine of Rs.500/- each and in default, they directed to suffer RI for 15 days each. The appellants acquitted of the offence punishable under sections 3(1) (ii), 3(2), and 3(4) of the Maharashtra Control of Organized Crime Act,1999 (for short “MCOC Act”).