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Judgment
V.K. Tahilramani, J.—The Confirmation Case No. 1 of 2013 arises out of the Reference made by the learned Additional Sessions Judge, Islampur in Sessions Case No. 29 of 2011 for confirmation of the death sentence awarded to the accused Sadashiv Jetappa Kamble. By judgment and order dated 26.3.2013 in Sessions Case No. 29 of 2011, the learned Sessions Judge, Islampur convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to capital punishment of death. By the very same judgment and order, the learned Sessions Judge also convicted the accused under Sections 376(2)(f), 363 and 201 of IPC. For the offence under Section 376(2)(f) of IPC, the accused was sentenced to life imprisonment and to pay fine of Rs. 2000/- in default simple imprisonment for one month. For the offence punishable under Section 363 of IPC, the accused was sentenced to suffer rigorous imprisonment for three years and fine of Rs. 1000/- in default simple imprisonment for 15 days and for the offence punishable under Section 201 of IPC, the accused was sentenced to rigorous imprisonment for three years and to pay fine of Rs. 1000/- in default simple imprisonment for one month. As sentence of death was imposed on the accused, the learned Sessions Judge made a reference to this Court for confirmation of death sentence. The appellant-original accused being aggrieved by the very same judgment and order, preferred Criminal Appeal No. 1261 of 2013. As both the confirmation case and the appeal are directed against the very same judgment and order, hence, both these matters were heard and decided together.
The prosecution case, briefly stated, is as under:-
(i) PW 2 Gangaram was residing at Sangli along with his wife PW 5 Usha, son Abhishek and 7 year old daughter who is the victim girl. Gangaram was doing labour work in the shop named as Shrinath Traders which was situated at Market Yard, Sangli. At the time of the incident, his daughter was studying in Shantiniketan Balvikas Mandir, Sangli in 2nd standard. The school hours of the victim girl were from 7 a.m. to 12 noon during Monday to Friday and on Saturday, the school hours were from 12 noon to 3 p.m. Gangaram and his family knew the accused as the accused was the maternal cousin brother of PW 5 Usha who was the wife of Gangaram. The accused was working at Pune, however, he used to often visit the house of Gangaram.
(ii) On 22.02.2011, Gangaram left his house at 9 a.m. for doing labour work. On that day at about 7 p.m., he received a call on his cellphone from his wife Usha. His wife told him on the cellphone that accused Sadashiv had come to their house and he was demanding Rs. 2000/-. Usha told Gangaram that the accused was demanding Rs. 2000/- for starting the business of sale of mobile handsets. Gangaram told his wife Usha that he will return home at night and then he will consider the demand of Rs. 2000/- made by the accused. At about 9 p.m., Gangaram returned home. At that time, he saw one Hero Hondo motorcycle in front of his house. The said motorcycle was bearing number MH-14-W-171. Gangaram saw that the accused had brought the said motorcycle. On entering the house, Gangaram asked the accused why the accused had come to his house. The accused then told him that he was going to start a shop of mobile and he wanted Rs. 2000/- from Gangaram. Gangaram told the accused that he did not have Rs. 2000/-. Then they all had dinner. After dinner, the accused again demanded Rs. 2000/- from Gangaram, however, Gangaram showed his inability to pay that amount. The accused then requested him to pay some amount and Gangaram paid him Rs. 80/-. Then the accused left the house of Gangaram on motorcycle. While going, the accused threatened that he would see Gangaram as Gangaram did not pay him Rs. 2000/-.
(iii) On 26.02.2011 which was a Saturday, Gangaram left his house as usual in the morning to go to work. At about 3.30 p.m., he received a call on his cellphone from his wife PW 5 Usha. Usha told him that their daughter had gone to school but she did not return back home from school. Usha asked Gangaram to enquire with the school about their daughter on the cellphone. Gangaram immediately contacted PW 3 Anil Olekar who was the class teacher of his daughter on the cellphone. Anil Olekar told Gangaram on cellphone that maternal uncle of his daughter had come to the school on motorcycle and her maternal uncle took her on the said motorcycle for purchasing clothes for her. Gangaram then searched for his daughter but he could not find her. On that day at about 5 p.m., Gangaram informed his relative PW 1 Chandrakant about his daughter being missing. Chandrakant was the husband of sister of PW 5 Usha. Gangaram told Chandrakant that he inquired with the class teacher about his daughter and the class teacher told him on cellphone that the maternal uncle of his daughter who was having black complexion and good height, took her from the school on motorcycle.
(iv) At about 9 p.m., Gangaram received a call on his cellphone from PW 12 Dinkar who was the owner of RK Dhaba at Islampur. Gangaram was informed by Dinkar that the identity card of his daughter was found by one Raju on the road and PW 12 Dinkar called Gangaram to collect the said identity card. Gangaram then suspected that the accused had something to do with the disappearance of his daughter. Gangaram then along with Kallappa who is the brother of the accused, PW 4 Sachin, Vishal, Sanjiv and Balu went to RK Dhaba, Islampur. PW 12 Dinkar, the person in RK Dhaba handed over the identity card to Gangaram. With the help of Kallappa who is the brother of the accused, Gangaram and others searched for the accused at Pune. They found the accused at 6 p.m. at Katraj Bus Stand at Pune. Gangaram enquired with the accused about his daughter, however, the accused said that he did not know anything about his daughter and as she is the daughter of maternal cousin sister, why he will bring her. Then, they all returned to Sangli along with the accused. At that time PW 5 Usha and PW 1 Chandrakant-relative of Gangaram and Usha were present at home. Then they all enquired with the accused about whereabouts of the victim girl, however, the accused gave evasive answers. Then Gangaram contacted PW 3 Anil Olekar who was the class teacher of the victim girl, on cellphone and asked him to come to his house. Anil Olekar came to the house of Gangaram. Gangaram then asked Anil Olekar to identify whether the accused is the same person who took his daughter from the school. Anil Olekar saw the accused and said that he is the same person who took the victim girl from the school. Then Anil Olekar contacted Gautam Patil who was the founder of the school and informed him about the incident. Gautam Patil sent three constables to the house of Gangaram by private vehicle. Accordingly, police constables Anil Rajput, Avinash Kamble and PW 13 Sanjay Pawar came to the house of Gangaram. Then all of them including the police constables asked the accused about the victim girl. The accused told them that he had kept the girl at Jaysingpur. Then PW 1 Chandrakant, Sanjiv Khane, Sadashiv Khane along with three police constables went to Jaysingpur.
(v) When they reached Jaysingpur, the accused told them that the victim girl is at Kasegaon and he has kept the victim girl with one Ramesh at Kasegaon as he had received amount of Rs. 3500/- from Ramesh. On 28.2.2011 at about 1 a.m., midnight, they all went from Jaysingpur to Kasegaon with the accused. They made enquiries at Kasegaon about the victim girl. They came to know at Kasegaon that there was no person by name Ramesh. Then they all asked the accused about the victim girl. The accused then told that he had taken the victim girl on the day of the incident at about 2 p.m. for her school. He took her to Kasegaon by motorcycle and he committed rape on the victim girl at about 4.00 p.m. in the sugarcane crop and he then committed her murder by twisting her neck and threw her dead body in the sugarcane field. The accused then led all of them to the spot which was in the sugarcane crop. The dead body of the victim girl was found lying at the 15th row of sugarcane in the field. The sugarcane crop was about 5-1/2 feet in height. There were injuries on the body of the victim girl.
(vi) The owner of the agricultural land PW 7 Shivaji Mane came to the spot. Then all of them along with the accused went to Kasegaon Police Station. PW 1 Chandrakant lodged FIR (Exh. 19) against the accused. Thereafter, investigation commenced.
(vii) Investigation was entrusted to SDPO PW 15 Shri. Hatmode Patil. He arrested the accused. The clothes on the person of the accused were seized as per the Seizure Memo (Exh. 39). SDPO Hatmode Patil sent the body of the victim girl for autopsy. The school bag and the shoes of the victim girl were recovered at the instance of the accused as per seizure memo (Exh. 33). The samples taken from the body of the girl as well as from the accused and other articles were sent to C.A. After completion of investigation, charge sheet came to be filed against the accused.
Charge came to be framed against the accused under Sections 302, 376, 363 and 201 of IPC. The accused pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the accused as stated in paragraph 1 above.
We have heard the learned Advocate for the accused and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for both sides, the judgment and order delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that prosecution has proved its case beyond reasonable doubt and the appellant has committed offence punishable under Sections 302, 376(2)(f), 363 and 201 of IPC.
It is the prosecution case that the accused caused the murder of the victim girl. In such case, it would be necessary to see whether the death is homicidal in nature. The dead body of the victim girl was sent to PW 14 Dr. Patil for postmortem. Dr. Patil conducted the postmortem on the dead body of the victim girl on 28.2.2011 at about 2.30 p.m. On external examination, he found the girl to be about 8 years old wearing bluish white colour frock having seal of Shantiniketan Balvikas Kendra, Sangli and blue tie. Dr. Patil found that blood was coming from external genitals and it had spread on groin and buttocks. Dr. Patil also found vaginal tears anterior and posterior aspect present, deep upto muscle. Hymen ruptured on all sides irregularly; bleeding present, vaginal orifice dilated 6 cm in length, 3 cm in diameter and 3 cm deep. Dr. Patil noticed following surface wounds and injuries on the dead body and gave his opinion thereon as under:-
Bluish black coloured bruise mark over the right side of neck extending from right pinna, right mastoid obliquely, extending over the middle sternocled mastoid over the neck over the right shoulder anteriorly and upto deltoid region 20 cm. x 1 cm with interior gap.
The above injury is caused by throttling of neck.
Bluish black discoloured contused mark on right side of neck extends medially from suprasternal region laterally meet above mark, over the middle of sternocledo mastoid laterally upto 2nd cervical vertebra, 9 cm x 1 cm size. This injury is caused due to throttling of neck.
Bluish black discoloured contusion mark over the right cheek on face, 3 cm x 2-1/2 cm in size.
Contusion mark over the upper and lower lips on face 6 x 3 cm in size.
The cause of injury no. 3 and 4 is throttling over the mouth.
Bruise and abrasion marks over the anterior aspect of chest on right and left side, 1/2 cm x 1/2 cm in size.
Bruise and abrasion marks present over the right and left thigh medially near genital, measuring 1 cm x 1 cm in size. Blood marks on thigh.
The injury no. 5 i.e. abrasion on chest shows violence marks at the time of assault. Injury no. 6 shows marks during course of sexual assault.
Bruise marks over the left arm and forearm, measuring 1 cm x 1 cm.
Bruise mark over the right arm and forearm, anterior and medial aspect, measuring each 2 cm x 1 cm in size. Blackish discolouration.
Injuries no. 7 and 8 shows marks of violence during assault.
Bruise mark over the left axillary and infraaxillary region on chest. 1 cm x 1 cm in size.
Injury no. 9 shows marks of violence.
Vaginal tear on anterior and posterior aspect present upto anus. Bruise on labia majora. Skin peeled out. Hymen ruptured on all sides. Serous blood oozing from posterior aspect of vaginal wall.
Injury no. 10 is caused due to sexual assault.
In the opinion of Dr. Patil, all above referred injuries are ante-mortem injuries and Injuries over neck, mouth and injuries over chest are caused due to asphyxia due to throttling. According to Dr. Patil, injuries Nos. 6 and 10 which are injuries mentioned in the autopsy report are caused only due to forcible sexual assault.
On internal examination, the observations of Dr. Patil and his opinion thereon are as under:-
Brain was congested.
Thorax: Ecchymossis underneath the subcutaneous tissues in the neck, fracture of hyoid bone seen. The fracture of hyoid bone is due to throttling over the neck. Bluish black ecchymosis seen over the infraclavicular region on chest on both side. The cause is due to pressure over chest at the time of throttling the neck. Pleura-Congested on upper aspect. It is sign of asphyxia by throttling.
Larynx Trachea, and Bronchi congested. Blocked by blood clots. It is caused due to throttling.
Right lung-Right lung enlarged, deeply congested, ecchymosis, blood stained fluid on section. Left lung is enlarged and congested. Blood stained frothy fluid on section. It is sign of asphyxia due to throttling.
Pharynx compressed and blocked by clots of blood. Probable cause is due to throttling. Kidney pale on section.
Dr. Patil observed that prior to death within 6 hours meal was taken. According to Dr. Patil the death might have occurred within 24 to 48 hours before conducting the postmortem. This means that the death might have occurred from anytime between 2.30 pm on 26.2.2011 to 2.30 pm on 27.2.2011 which is totally consistent with the prosecution case. According to the prosecution, the victim girl was kidnapped on 26.2.2011 at about 2.30 p.m., thereafter, she was taken from Sangli to Kasegaon which is at a distance of about 62-65 kms. and raped and murdered there. On 28.2.2011, Dr. Patil received a letter issued by Dy. S.P. Islampur for giving opinion whether the victim girl was raped. Dr. Patil gave opinion that she was forcibly raped, based on the examination of the dead body of the victim girl wherein he found that her hymen was ruptured, torn with injuries to external genitals with marks of violence. According to Dr. Patil, during autopsy, he noticed that lungs were engorged, deeply congested and ecchymosised and blood stained fluid on section. According to Dr. Patil, these are all signs of asphyxia due to throttling.
The injuries as seen on the dead body of the victim girl which were noticed by PW 14 Dr. Patil, the cause of death i.e. asphyxia due to throttling and the circumstances in which the dead body was found lying inside sugarcane crop at village Kalammawadi near Kasegaon, leave no manner of doubt that the death was homicidal in nature. It may be stated that the accused has not disputed that the death is homicidal in nature. In order to evaluate whether the accused is responsible for the injuries on the victim girl and her death, we would have to evaluate the evidence which is circumstantial in nature.
In order to prove its case, the prosecution has relied on the following incriminating circumstances, which according to the prosecution, conclusively prove the guilt of the accused:-
i. From about 3 p.m. on 26.02.2011, the victim girl was not seen in school and found to be missing;
ii. Identification of the accused by PW 3 Anil Olekar who was the class teacher of the victim girl according to whom the accused took away the victim girl from the school;
iii. Motive;
iv. Last seen together;
v. Disclosure statement made by the accused about the dead body of the victim girl and recovery of the dead body of the victim girl at his instance;
vi. Recovery of school bag and shoes of the deceased at the instance of the accused;
vii. Seizure of blood stained clothes of the accused at the time of arrest;
viii. Medical evidence showing that the victim girl was forcibly raped and thereafter throttled to death;
ix. Medical evidence showing that accused had sustained injury to his private part;
x. Blood of the accused was found on the frock of the victim girl. DNA report showing that the blood on the frock of the deceased tallied with DNA of semen on underwear and pant of accused and blood sample of accused;
xi. Blood of the victim girl was found on the shirt of the accused. DNA report showing that blood detected on the full shirt of the accused and DNA of vaginal swab of the victim girl tallies;
xii. No explanation by the accused of incriminating circumstances appearing against him in his statement u/S. 313 of Cr.P.C.
The first and second circumstance is taken together as it is interconnected. That the victim girl was missing from 3 p.m. of 26.02.2011 is deposed by the parents of the victim girl. PW 2 Gangaram is the father of the victim girl. He has stated that he was residing at Sangli with his wife PW 5 Usha, son Abhishek and daughter who is the victim girl. His daughter was studying in Shantiniketan Balvikas Mandir, Sangli in 2nd standard. Her school hours were from 7 a.m. to 12 noon during Monday to Friday and on Saturday, the school hours were from 12 noon to 3 p.m. PW 2 Gangaram has stated that he knew the accused as he was the maternal cousin brother of his wife Usha. The accused used to visit his house. At that time, the accused was doing labour work at Pune. Gangaram was doing labour work at Shrinath Traders, Market Yard, Sangli.
On 26.2.2011, it was a Saturday. On that day, as usual, Gangaram left the house for going to labour work. At about 3.30 p.m., he received a call on his cellphone from his wife Usha. Usha told him that their daughter had gone to school but she did not return home. His wife asked him to enquire with the school about the daughter. Gangaram immediately contacted the class teacher PW 3 Anil Olekar on cellphone. Anil Olekar told him that the maternal uncle of the victim girl had come to the school with Splendor motorcycle and her maternal uncle took her by the said motorcycle for purchasing clothes for her. Gangaram searched for his daughter but could not find her. On that day at about 5 p.m., he informed his relative PW 1 Chandrakant about his daughter being missing. He told Chandrakant that when he enquired with the class teacher of his daughter, the class teacher told him on cellphone that the maternal uncle of the victim girl who was of black complexion and having good height took her from the school by Splendor motorcycle.
Gangaram has further stated that at about 9 p.m., he received a call from RK Dhaba, Islampur. The owner of RK Dhaba told him that identity card of his daughter was found by one Raju on the road and he told Gangaram to collect the said identity card. Gangaram then suspected about the accused. He then with Kallappa-the brother of the accused, PW 4 Sachin Tingare, Vishal Jagdale, Sanjiv Khane and Balu Sadakale went to RK Dhaba, Islampur. At RK Dhaba, the identity card of his daughter was handed over to Gangaram. Then they all went to Pune in search of the accused. They went to Pune in the morning of 27.2.2011. With the help of Kallappa, they searched for the accused at Pune. They found the accused at 6 p.m. at Katraj Bus Stand. Gangaram enquired with the accused about his daughter, however, the accused said that he did not know anything about his daughter and as she is the daughter of his maternal cousin sister, why he will bring her. They all then returned to Sangli along with the accused. At that time PW 5 Usha and PW 1 Chandrakant-relative of Gangaram were present at home. They all enquired with the accused about whereabouts of the victim girl, however, the accused gave evasive answers. Then Gangaram contacted PW 3 Anil Olekar who was the class teacher of the victim girl, on cellphone and asked him to come to this house. Anil Olekar came to the house of Gangaram. Gangaram then asked Anil Olekar to identify whether the accused was the same person who took his daughter from the school. Anil Olekar saw the accused and he told all of them that the accused was the same person who took the victim girl from the school. Then Anil Olekar contacted Gautam Patil who was the founder of the school and informed him about the incident. Then, Gautam Patil sent three constables to the house of Gangaram by private vehicle. Accordingly, police constables Anil Rajput, Avinash Kamble and PW 13 Sanjay Pawar came to the house of Gangaram. Then all of them including the police constables asked the accused about the victim girl. The accused told them that he had kept the girl at Jaysingpur. Then PW 1 Chandrakant, Sanjiv Khane, Sadashiv Khane along with three police constables went to Jaysingpur.
On 28.2.2011 in the morning at about 7.30 a.m., Gangaram received a call on his cellphone from his relative PW 1 Chandrakant. Chandrakant told him on cellphone that the accused took his daughter from the school to the agricultural land of Shivaji Mane (PW 7) situated within village Kalammawadi and the accused committed rape on his daughter and committed her murder by twisting her neck and that the accused had shown the dead body of his daughter. Meanwhile, Chandrakant had lodged report at Kasegaon Police Station within which jurisdiction Kasegaon fell.
PW 5 Usha is the mother of the victim girl. Usha has stated that she was residing along with her husband Gangaram, her son Abhishek and daughter. Her daughter was 8 years old. The date of birth of her daughter was 13.11.2003. Her daughter was studying in 2nd standard in Shantiniketan Balvikas Kendra, Sangli. The school hours of her daughter were from 7 am to 12 noon during Monday to Friday and on Saturday, the school hours were from 12 noon to 3 p.m. She knew the accused as he was her maternal cousin brother. The accused used to come to her residence. During the relevant period, the accused was residing at Pune and he was doing labour work. Her husband PW 2 Gangaram was attached to Shrinath Traders, Marketyard, Sangli as a labourer.
On 26.2.2011, it was a Saturday. On that day, her husband left the house at about 9 a.m. to attend his job. Her daughter went to school at 12 noon. Her daughter did not return till 3.30 p.m., therefore, Usha contacted her husband on cellphone and asked him to enquire about their daughter at school. Her husband contacted the class teacher PW 3 Anil Olekar and enquired about his daughter. Anil Olekar told Gangaram on cellphone that the maternal uncle of the victim girl had come to school on Hero Honda motorcycle and he had taken their daughter for purchasing new clothes for her. All these facts were told by Gangaram to Usha on cellphone. On that day at about 9 p.m., Gangaram received a phone call from RK Dhaba, Islampur about finding of identity card of their daughter. The said person told Gangaram to come to RK Dhaba and collect the said identity card. At that time, they suspected the accused. Then her husband called Kallappa the brother of the accused and one Vishal Jagdale, Balu Sadakale, PW 4 Sachin Tingre and Sanjiv Khane. They all then went to RK Dhaba, Islampur. They collected the identity card of the victim girl from RK Dhaba, Islampur and they proceeded to Pune for taking search of the accused.
Usha has further stated that on 27.2.2011 late night, her husband returned home with the accused and other persons. She and her husband asked the accused about whereabouts of their daughter. Initially, the accused gave evasive and self contrary replies. The accused told them that he did not know about their daughter. Then the class teacher of their daughter Shri. Anil Olekar was called. Anil Olekar came to their house. Usha and her husband asked Anil Olekar to identify the accused as to whether he is the same person who took their daughter from the school. Anil Olekar looked at the accused and told them that he is the same person who took their daughter from the school. Then, Usha, her husband and others asked the accused about their daughter, however, the accused gave self contrary answers. Then Anil Olekar contacted Gautam Patil on cellphone and told about this incident. Gautam Patil sent three police constables by private vehicle to their house. Then again Gangaram and the constables asked the accused the whereabouts of their daughter. The accused then told that he had kept her at Jaysingpur. Then three constables along with PW 1 Chandrakant who was the relative of Gangaram and others went to Jaysingpur along with the accused. On 28.2.2011 at about 7.30 a.m., Gangaram received a call on his cellphone from PW 1 Chandrakant. Chandrakant told Gangaram on cellphone that the accused had taken their daughter from her school by saying to the teacher that he is taking her for purchasing new clothes for her and the accused committed rape on her in the agricultural land of Shivaji Mane situated within the area of Kalammawadi and by twisting her neck, he committed her murder after committing rape on her and the accused showed the dead body of their daughter.
PW 1 Chandrakant has stated that on 26.2.2011 at about 5 p.m., he received a call on his cellphone from PW 2 Gangaram. Gangaram informed him that his daughter did not return home from school after school hours. PW 1 Chandrakant asked Gangaram whether he visited the school and enquired about his daughter. Gangaram told Chandrakant that the teacher in the school told him that on that day at about 2 p.m., the maternal uncle of his daughter had come to the school by motorcycle and took her at about 2 p.m. Gangaram also told Chandrakant that the said teacher also gave description of the maternal uncle of his daughter as having black complexion and was talking Kannad and Marathi.
Chandrakant has further stated that on the next day at about 7 p.m., he went to the house of Gangaram. Usha, the wife of Gangaram told him that her husband had received a call from the owner of Dhaba at Pethnaka about receipt of identity card of their daughter. Usha further told Chandrakant that they were suspecting about the accused, therefore, her husband Gangaram went to Pune in search of the accused. Chandrakant then stayed at the residence of Usha. On that day, at about 10 p.m., Gangaram and his two friends returned to the house of Gangaram with the accused. Chandrakant asked Gangaram whether the accused had disclosed any information about his daughter. Gangaram told that the accused did not disclose anything and he told Chandrakant to ask the accused about his daughter. Chandrakant asked the accused, thereupon the accused gave him inconsistent and self contrary information. Then Gangaram called the teacher of his daughter namely PW 3 Anil Sir to the house by calling him on his cellphone. Then, the teacher PW 3 Anil Sir came to the house of Gangaram. Then they asked Anil Sir about the accused. Anil Sir told them that the accused is the same person who had taken the victim girl on motorcycle on that day at 2 p.m. from the school. Then Anil Sir informed Gautam Sir on his cellphone about the incident of the victim girl. Gautam Sir sent three police constables to the house of Gangaram. They all then asked the accused about the whereabouts of the victim girl. The accused told him that the victim girl was at Jaysingpur. Then Chandrakant, three policemen, the accused and two other persons went to Jaysingpur. When they reached Jaysingpur, the accused told them that the victim girl is at Kasegaon and he has kept the victim Girl with one Ramesh at Kasegaon as he received amount of Rs. 3500/- from Ramesh. Then on 28.2.2011 at about 1 midnight, they all went to Kasegaon from Jaysingpur with the accused. Chandrakant made enquiry about the victim girl at Kasegaon. He came to know that there was no person by name Ramesh at Kasegaon. Then they all asked the accused about the victim girl. The accused then told that he took the victim girl to Kasegaon on the day of the incident at about 2 p.m. He took her to Kasegaon by motorcycle. The accused further told them that he committed rape on the victim girl at about 4 pm in the sugarcane crop near Kasegaon and committed her murder by twisting her neck and threw her dead body in the said field. The accused then took them to the spot in the sugarcane crop where the dead body of the victim girl was lying. Injuries were found on the dead body of the victim girl. The owner of the agricultural land namely PW 7 Shivaji Mane also came to the spot. Then they all along with the accused went to Kasegaon Police Station and PW 1 Chandrakant lodged the FIR (Exh. 19).
PW 3 Anil Olekar was the class teacher of the victim girl. He was attached to Shantiniketan Bal Vikas Kendra, Sangli as an assistant teacher. He has stated that the victim girl is 8 years old and was studying in 2nd standard of his class. The school hours were from 12 noon to 3 p.m. during Monday to Friday and on Saturday, the school hours were from 12 noon to 3 p.m. On Saturday, the lunch time is from 2 pm to 2.30 p.m. Students in their school had specific uniform and on the uniform, the logo of their school is attached. Anil has stated that his school issued identity card to each student. The identity card bears photo of the student, the date of birth of the student, the phone number of parents of the student, phone number of the school and logo of the school.
Thereafter, Anil Olekar has stated that on 26.2.2011, the school started at 12 noon. There was lunch time on that day in between 2 p.m. to 2.30 p.m. All the students in the school came to the ground for taking lunch. Then Anil Olekar went to the bank of their school, which is opposite the gate of their school. Within 10 minutes, he returned from the bank to the school. At that time, he saw one Hero Honda Splendor motorcycle parked near the tree in the ground of the school. The number of the said motorcycle was MH-14-W-171. Near the said motorcycle, one person having height and black complexion was seen by him. Anil Olekar also saw the student in his class namely the victim girl who was standing in front of the said person, therefore, Anil Olekar had doubt about the said person. He asked the said person who he was and what he wanted. At that time, the said person told him that he is the maternal uncle of the victim girl. Then Anil Olekar asked the victim girl who is the said person and she told him that he is her maternal uncle. Anil Olekar then asked the victim girl what is meant by maternal uncle. At that time, the victim girl told him that the said person is brother of her mother. Then the said person i.e. the accused asked Anil Olekar to allow him to take the victim girl outside as he wanted to purchase a new dress for her. Anil Olekar refused to allow him to take the victim girl and told the accused that the school hours were going to be completed within sometime. Meanwhile Anil Olekar was called to the office of the school, hence, he went in the office of the school. At about 2.30 p.m., he went to the class room. At that time, he noticed that the victim girl was not in the class room, hence, he came to the conclusion that her maternal uncle might have taken her.
Anil Olekar has further stated that on that day, at about 3.30 p.m., he received a call on his cellphone from PW 2 Gangaram. Gangaram told him that his daughter had not returned home from school. Anil Olekar told PW 2 Gangaram that her maternal uncle had come to the school and her maternal uncle had taken her. Then Gangaram asked him to give particulars about the said person. Anil Olekar then gave Gangaram the description of the said person. On that day at 6.30 p.m., he received a call on his cellphone from Gangaram. Gangaram told him that the victim girl did not return home till 6.30 p.m. On the same day at about 8 p.m., Gangaram came to the school to meet Anil Olekar. At that time, Gangaram again asked him about description of the said person. Anil Olekar told Gangaram that the said person was having height and black complexion and he was having motor cycle bearing No. MH-14-W-171. Then Gangaram told him about the incident which occurred at his residence on last Tuesday. Gangaram told him that on Tuesday, the accused who is his cousin brother-in-law had come to his house and he had demanded Rs. 2000/- for starting shop of repair of mobile handset. Gangaram further told him that at that time he refused to give the said amount and the accused threatened to see him afterwards. Gangaram told Anil Olekar that the said person had taken his daughter.
According to Anil Olekar, on 27-2-2011 at about 10.30 p.m., he received cellphone call from Gangaram and Gangaram asked him to come to his house. Accordingly PW 3 Anil Olekar went to the house of Gangaram at about 10.45 p.m. At that time Usha, the mother and Gangaram, the father of victim girl were present along with their other relatives and amongst the said relatives, the person who had taken the victim girl from school on Saturday, at lunch hour, was also there. At that time Gangaram asked PW 3 Anil Olekar whether the accused was the same person who had taken his daughter from school. PW 3 Anil Olekar immediately identified the accused as the same person who took the victim girl from school during lunch time on Saturday. Then Anil Olekar asked the accused his name and he gave his name as Sadashiv Jetappa Kamble. Then they enquired with the accused whether he had taken the victim girl. However, initially the accused denied and gave evasive and self contrary answers. Then, PW 3 Anil Olekar informed the founder of the school Gautam Patil Sir on cellphone about the incident. Gautam Patil Sir sent three police constables to the house of Gangaram. Then alongwith three police constables they enquired with the accused about the victim girl and the accused told them that he had kept victim girl at Jaysingpur. Then 3 police constables alongwith the accused and some relatives of PW 2 Gangaram went to Jaysingpur. Then PW 3 Anil Olekar returned to his house.
PW 4 Sachin was also working in Shrinathji Traders where PW 2 Gangaram was working, hence, Sachin knew the family members of Gangaram. Sachin has stated that on 26.2.2011 at about 3.30 p.m., Gangaram received a call on his cell phone from his wife. His wife informed him that their daughter had gone to school but she did not return after 3.30 p.m. Gangaram''s wife told him to contact the teacher of their daughter on cellphone to enquire about her. Then Gangaram contacted the teacher of their daughter namely Anil Olekar on cellphone. Anil Olekar told Gangaram that the maternal uncle of their daughter had taken her from the school. Gangaram informed this fact to Sachin. Then after informing Sachin and the owner of the shop, Gangaram left the shop for taking search of his daughter. On 26-2-2011 at about 8 p.m., PW 2 Gangaram came to the shop. Gangaram told them that inspite of taking search, his daughter was not found. Then PW 4 Sachin alongwith Vishal Jagdale, Balu Sadakale and Gangaram went in search of the victim girl by taking the car of their employer. Gangaram further told Sachin that the accused on 22.2.2011 had demanded Rs. 2000/- from him for starting mobile repair shop and as Gangaram did not give the amount, the accused gave Gangaram threats to see him afterwards and he left the house of Gangaram in angry mood. Gangaram further told Sachin that the accused must have taken his daughter. Then Gangaram called Kallappa Kamble who is the brother of the accused. Then PW 4 Sachin alongwith Kallappa, PW 2 Gangaram and Vishal Jagdale went to RK Dhaba, Islampur by car. They collected the identity card of victim girl. Thereafter they went to Pune for taking search of the accused and the daughter of Gangaram. On 27-2-2011 in the morning, they reached Pune. With the help of Kallapa, the brother of the accused, they were searching for the accused. They found the accused at Katraj bus stand, Pune at about 6 pm. They made enquiry with the accused about the victim girl. The accused told them that as the victim girl is daughter of his cousin maternal sister, why he will bring victim girl and he does not know anything. Then they brought the accused to the residence of Gangaram. At that time, Usha, the wife of Gangaram, PW 1 Chandrakant-relative of Gangaram and other persons were present there. They enquired with the accused about the whereabouts of the victim girl, however, he gave evasive answers. Then Gangaram called Anil Olekar, who was the teacher of victim girl by calling on his cellphone. Anil Olekar came to the house of Gangaram. Then Gangaram asked Anil Olekar to identify whether the accused is the same maternal uncle who had taken his daughter from the school. Anil Olekar identified the accused as the same maternal uncle who had taken the victim girl from the school. Then Anil Olekar contacted another teacher Gautam Patil on the phone and told him all the facts. Gautam Patil sent three police constables by private vehicle to the house of Gangaram. Then they all enquired with the accused about the whereabouts of the victim girl. At that time, the accused told them that he had kept the girl at Jaysingpur. Then PW 1 Chandrakant who was the relative of Gangaram along with police constables and some other persons went to Jaysingpur. On 28.2.2011 at about 8 p.m., Sachin received phone call from PW 1 Chandrakant. Chandrakant told him that on 26.2.2011, the accused took the daughter of Gangaram from her school and committed her murder after committing rape on her within the area of village Kalammawadi and that the accused had shown her dead body. This witness has identified the accused as well as the identity card (Exh. 24) of the victim girl. He has identified the photograph of the victim girl appearing in the identity card.
The evidence of PW 2 Gangaram, PW 5 Usha and PW 4 Sachin in relation to the identity card of his daughter being found by owner of RK Dhaba at Pethnaka, Islampur is corroborated by PW 12 Dinkar Kadam. Dinkar Kadam has stated that he is the owner of RK Dhaba. One Raju was a waiter in his Dhaba. On 26.2.2011 at about 7 p.m., waiter Raju had come to him. Raju handed over one identity card to him which he found on the road at Pethnaka. On the said identity card, there was description of one girl along with address and cellphone of her father. The name of the school i.e. Shantiniketan Balvikas Kendra, Sangli was also mentioned on the identity card. On 26.2.2011 at about 9 p.m., Dinkar Kadam contacted the father of the said girl on the cellphone number mentioned in the identity card. He told the father of the girl that his waiter Raju had found identity card of the girl on the road at Pethnaka. Dinkar then told PW 2 Gangaram to collect the said identity card. Thereafter, the father of the girl had come to RK Dhaba at about 12 midnight and the identity card was given to the father of the girl. PW 12 Dinkar has identified the identity card (Exh. 24). The waiter Raju could not be examined as he had left the job at RK Dhaba and Dinkar did not know his present address.
Thus, the evidence of PW 1 Chandrakant, PW 2 Gangaram, PW 3 Anil Olekar, PW 4 Sachin and PW 5 Usha taken together clearly establishes that the accused kidnapped the victim girl and took her away from her school on 26.2.2011 at about 2 p.m. under a false pretext. Their evidence clearly establishes that the accused took the minor girl from her school out of keeping of the lawful guardianship without the consent of the guardians i.e. PW 2 Gangaram and PW 5 Usha.
The motive for the appellant to commit the crime is brought on record mainly through the evidence of PW 2 Gangaram and PW 5 Usha. Gangaram has stated that he knew the accused as he was the maternal cousin brother of his wife. The accused used to visit their house. During the relevant period, the accused was working at Pune. On 22.2.2011, Gangaram left his house at 9 a.m. as usual for going to his job. He was working as a labourer at Shrinath Traders, Marketyard, Sangli. At about 7 p.m., he received a call on his cellphone from his wife Usha. His wife told him on the cellphone that the accused had come to their house and he was demanding Rs. 2000/- for starting the business of sale of mobile handsets. Gangaram told his wife that he will return home at night and then he will consider about the demand. On 22.2.2011 at 9 p.m., Gangaram returned home. At that time, he saw one Hero Honda motorcycle in front of his house. The said motorcycle was bearing number MH-14-W-171. The accused had brought the said motorcycle. Gangaram entered his house and asked the accused why he had come. The accused told him that he was going to start a shop of mobile and he wanted Rs. 2000/- from Gangaram. Gangaram told the accused that he did not have Rs. 2000/-. Then they all had dinner. After dinner, the accused again demanded Rs. 2000/- from Gangaram, however, Gangaram showed his inability to pay that amount. The accused then requested him to pay some amount and Gangaram paid him Rs. 80/-. Then the accused left the house of Gangaram on motorcycle. While going, the accused threatened that he would see Gangaram as Gangaram did not pay him Rs. 2000/-.
The evidence of PW 5 Usha is on the same lines as that of PW 2 Gangaram. She has also clearly deposed about the demand of Rs. 2000/- being made by the accused and as the amount was not paid, the accused threatened them when he was leaving. The evidence of PW 2 Gangaram is further corroborated by PW 3 Anil Olekar who was the class teacher of the victim girl. PW 3 Anil Olekar has stated that on 26.2.2011 at about 3.30 p.m., he received call on cellphone from Gangaram. Gangaram told him that his daughter had not returned home from the school. Anil Olekar told Gangaram that her maternal uncle had taken her from the school. He then gave description of the said person to Gangaram. At about 8 p.m., Gangaram came to meet Anil Olekar. At that time, Gangaram again asked him about the description of the said person. Anil Olekar told Gangaram that the said person was having height and black complexion and he was having motorcycle bearing number MH-14-W-171. Then, Gangaram told him about the incident which occurred at his residence on Tuesday. Gangaram told him that on Tuesday, the accused who is his cousin brother-in-law had come to his house and he had demanded Rs. 2000/- for starting shop of repair of mobile handset. Gangaram further told him that at that time he refused to give the said amount and the accused threatened to see him afterwards. Gangaram told Anil Olekar that the said person had taken his daughter.
PW 4 Sachin has also stated about the accused demanding Rs. 2000/- from Gangaram. Sachin has deposed that on 26-2-2011 at about 8 p.m., PW 2 Gangaram came to the shop. Gangaram told them that inspite of taking search, his daughter was not found. Prior to that, Gangaram had told Sachin that Olekar, the class teacher of his daughter had told him that the maternal uncle of his daughter had taken her from the school. Gangaram told Sachin that on Tuesday i.e. on 22-2-2011, his cousin brother-in-law Sadashiv Kamble (accused) had come to his house and demanded Rs. 2000/- for starting shop of repair of mobile. Gangaram did not pay the money. Gangaram told Sachin that the accused gave him threats to see him afterwards and he left the house of Gangaram in angry mood. Gangaram further told Sachin that the accused must have taken his daughter.
Thus the evidence of PW 2 Gangaram, PW 3 Anil Olekar, PW 4 Sachin and PW 5 Usha shows the motive for the accused to commit the crime. The motive is that the accused demanded Rs. 2000/- from Gangaram to start mobile repairing shop and as Gangaram refused to give him the amount, the accused threatened Gangaram and Usha that he would see them. This incident of demand of Rs. 2000/- and the threat by the accused occurred on 22.2.2011 and the incident occurred four days thereafter.
Another circumstance against the accused is of last seen. PW 3 Anil Olekar, PW 10 Dilip Gavali and PW 11 Sunil have deposed on this aspect. PW 3 Anil Olekar has stated that on 26.2.2011, the school started at 12 noon. The lunch time was between 2 p.m. to 2.30 p.m. All the students in the school came to the ground for taking lunch. Then Anil Olekar went to the bank of their school, which is opposite the gate of their school. Within 10 minutes, he returned from the bank to the school. At that time, he saw one Hero Honda Splendor motorcycle parked near the tree in the ground of the school. The number of the said motorcycle was MH-14-W-171. Near the said motorcycle, one person having height and black complexion was seen by him. Anil Olekar also saw the student in his class namely the victim girl who was standing in front of the said person, therefore, Anil Olekar had doubt about the said person. He asked the said person who he was and what he wanted. At that time, the said person told him that he is the maternal uncle of the victim girl. Then Anil Olekar asked the victim girl who is the said person and she told him that he is her maternal uncle. Anil Olekar then asked the victim girl what is meant by maternal uncle. At that time, the victim girl told him that the said person is brother of her mother. Then the said person i.e. the accused asked Anil Olekar to allow him to take the victim girl outside as he wanted to purchase a new dress for her. Anil Olekar refused to allow him to take the victim girl and told the accused that the school hours were going to be completed within sometime. Meanwhile Anil Olekar was called to the office of the school, hence, he went in the office of the school. At about 2.30 p.m., he went to the class room. At that time, he noticed that the victim girl was not in the class room, hence, he came to the conclusion that her maternal uncle might have taken her.
Anil Olekar has further stated that on that day, at about 3.30 p.m., he received a call on his cellphone from PW 2 Gangaram. Gangaram told him that his daughter had not returned home from the school. Anil Olekar told PW 2 Gangaram that her maternal uncle had come to the school and her maternal uncle had taken her. Then Gangaram asked him to give particulars about the said person. Anil Olekar then gave Gangaram the description of the said person. On that day at 6.30 p.m., he received a call on his cellphone from Gangaram. Gangaram told him that his daughter did not return home till 6.30 p.m. On the same day at about 8 p.m., Gangaram came to the school to meet Anil Olekar. At that time, Gangaram again asked him about description of the said person. Anil Olekar told Gangaram that the said person was having height and black complexion and he was having motor cycle bearing No. MH-14-W-171. Gangaram told Anil Olekar that the said person had taken his daughter.
According to Anil Olekar, on 27-2-2011 at about 10.30 p.m., he received cellphone call from Gangaram and Gangaram asked him to come to his house. Accordingly PW 3 Anil Olekar went to the house of Gangaram at about 10.45 p.m. At that time Usha, the mother and Gangaram, the father of victim girl were present along with their other relatives and amongst the said relatives, the person who had taken the victim girl from school on Saturday, at lunch hour, was also there. At that time Gangaram asked PW 3 Anil Olekar whether the accused was the same person who had taken his daughter from school and PW 3 Anil Olekar immediately identified the accused as the person who took the victim girl from school during lunch time on Saturday. Then Anil Olekar asked the accused his name and he gave his name as Sadashiv Jetappa Kamble.
Thus, the evidence of PW 3 Anil Olekar shows that on 26.2.2011, the accused told him that he was the maternal uncle of the victim girl and he had come to school to take her to purchase clothes for her. Though Anil Olekar refused to give permission to the accused to take the victim girl, yet he found that at about 2.30 p.m., when the school started, the victim girl was not in the class, hence, he came to the conclusion that the maternal uncle of the victim girl must have taken her. This witness has observed the height and the complexion of the accused that is the accused was tall and had black complexion. Anil Olekar has also noted that the accused had come on Hero Honda Splendor motorcycle bearing number MH-14-W-171. It is pertinent to note that PW 2 Gangaram has stated that on 22.2.2011, his wife called him and said that the accused had come home and he was demanding Rs. 2000/-. Gangaram told her that he will see when he comes home. When Gangaram came home, he saw one Hero Honda motorcycle bearing number MH-14-W-171 in front of his house. Gangaram saw that the accused had brought the motorcycle.
PW 5 Usha has also stated that on 22.2.2011, the accused had come to their house on Hero Honda motorcycle. Thereafter, the accused demanded Rs. 2000/- from her which fact she informed her husband. Thus, Anil Olekar had noted that not only that a person of black complexion and having height had come to the school but he had come on Hero Honda Splendor motorcycle bearing No. MH-14-W-171 which is the same motorcycle which was seen by PW 2 Gangaram when the accused had come to his house. It is to be noted that Splendor make motorcycle was manufactured by Hero Honda Company. Hence, some of the witnesses refer to the motorcycle as only Hero Honda motorcycle while others refer to it as Hero Honda Splendor motorcycle.
Not only PW 3 Anil Olekar had sufficient opportunity to notice the description of the accused and to observe the motorcycle but he also had a talk with the accused. Anil Olekar had seen the accused talking to the victim girl. Due to this Anil Olekar had doubt about the said person. Therefore, he asked the said person who he was and what he wanted. At that time, the said person told him that he is the maternal uncle of the victim girl. Then Anil Olekar asked the victim girl who is the said person and she told him that he is her maternal uncle. Anil Olekar then asked the victim girl what is meant by maternal uncle. At that time, the victim girl told him that the said person is brother of her mother. Then the said person i.e. the accused asked Anil Olekar to allow him to take the victim girl outside as he wanted to purchase a new dress for her. Anil Olekar refused to allow the accused to take the victim girl and told the accused that the school hours were going to be over within sometime. Meanwhile Anil Olekar was called to the office of the school, hence, he went in the office of the school. At about 2.30 p.m., he went to the class room. At that time, he noticed that the victim girl was not in the class room, hence, he came to the conclusion that her maternal uncle might have taken her.
The description of the person who took the victim girl was given by Anil Olekar to Gangaram at 3.30 p.m. when Gangaram called Anil Olekar on his cellphone. Thereafter, at 8 p.m., when Gangaram again met Anil Olekar, Gangaram again asked him about description of the said person. Anil Olekar told Gangaram that the said person was having height and black complexion and he was having motorcycle bearing number MH-14-W-171. Gangaram then suspected that the accused had taken his daughter, based on the description given by Anil Olekar and based on the fact that the motorcycle number given by Anil Olekar was the same motorcycle by which the accused had come to the house of Gangaram. Thus, the evidence of Anil Olekar establishes that he saw the deceased i.e. the victim girl with the accused at about 2 p.m. on 26.2.2011 in the compound of Shantiniketan Bal Vikas Mandir School, Sangli in which school the victim girl was studying and in which school Anil Olekar was a teacher.
The other two witnesses who have deposed on the aspect of last seen are PW 10 Dilip and PW 11 Sunil. PW 10 Dilip resided at Ashta in District Sangli. He had a shop at Ashta, Dist. Sangli. He and his wife were running the shop. He used to sell seat covers of motorcycle and fibre goggles in his shop. Dilip has stated that on 26.2.2011 at about 3.30 p.m., he and his wife were present in his shop at Ashta when one motorcycle came from the side of Sangli and stopped in front of his shop. At that time, there were no customers in his shop. One person having height and black complexion was the motorcycle rider and one school girl wearing school uniform was with him. Said motorcycle rider and the said girl came into his shop. The said motorcycle rider purchased two goggles. He purchased one goggle for himself and another goggle for the girl. The motorcycle rider purchased one goggle of rosy colour glass and black frame of fibre for the said girl. The motorcycle rider was talking with the girl in Kannad language. As the wife of PW 10 Dilip could understand Kannad language, his wife asked the girl her name. The girl gave her name. The said girl further informed that she resides at Sangli and she had come along with her maternal uncle. The motorcycle rider paid Rs. 90/- for the said two goggles purchased by him. Then, the motorcycle rider and the girl went towards Islampur side by motorcycle.
Dilip has further stated that on 1.3.2011, he read news item in newspaper about the said motorcycle rider and the girl. Police then recorded his statement on 2.3.2011. While recording his statement on 2.3.2011, the accused was in custody of the police. At that time, PW 10 Dilip identified the accused and told the police that he was the same motorcycle rider. Police also showed him the photograph of the girl and PW 10 Dilip identified the girl from the photograph. He also identified the rosy colour glass & black frame goggle (Article A) before the Court which goggle was sold by him to accused. He was also shown the identity card of the girl and he identified that the photograph on the said identity card was of the girl who had come to his shop. He has also identified the uniform (Article E) which was on the person of the girl when she came to his shop. He has identified the accused as the same motorcycle rider who had come to his shop along with the girl in a school uniform and who had purchased two goggles. It is pertinent to note that this very goggle (Article A) which was sold by PW 10 Dilip to the accused was found in the sugarcane field near the dead body of the victim girl.
The evidence of PW 10 Dilip shows that after purchasing the goggles, the accused went towards Islampur side. The evidence of PW 2 Gangaram, PW 4 Sachin and PW 12 Dinkar shows that the identity card of the victim girl was found on the road at Pethnaka, Islampur. This further lends corroboration to the evidence of PW 10 Dilip. It was contended that Dilip is not a reliable witness because he did not have a licence to run his shop. It is noticed that Dilip has not at all been shaken in his cross-examination. He is an independent witness and had no enmity or grudge against the accused. In such case, the fact that he did not have a licence is not enough to discredit his testimony.
PW 11 Sunil resided at Pethnaka and had a small hotel adjacent to Pethnaka. Sunil has stated that on 26.2.2011 at about 4 p.m., he was in his hotel. That time, one motorcycle came from Sangli side and stopped in front of his hotel. There were no customers in his hotel at that time. One person having height and black complexion was riding the motorcycle and one girl wearing school uniform was with the said man. The motorcycle rider and the girl came into his hotel. The motorcycle rider purchased one packet of food article known as Bobby (kurkure). He also purchased one pouch of Kolhapuri Gutkha. The motorcycle rider paid Sunil the price of the packet of bobby and pouch of Gutkha. Then the motorcycle rider and the girl went towards Karad side by motorcycle.
On 1.3.2011, Sunil read the news item about the said motorcycle rider and the said girl in newspaper. His statement was recorded on 2.3.2011. At that time. Sunil identified the accused who was in police custody as the same motorcycle rider who came to his shop with a girl in school uniform. He was shown the photograph of the girl. He identified from the photograph that the girl was the same girl who had come to his hotel. He has also identified the uniform (Article E) which was on the person of the girl at that time. He has identified the accused before the Court. It is also pertinent to note that food article Bobby (kurkure) was found lying in the field near the dead body of the victim girl. The fact that "Bobby" was found at the spot is also corroborated by PW 7 Shivaji Mane, who was the owner of the field where the dead body was found. The spot pancha PW 26 Shivaji has also stated about "Bobby" being found at the spot.
It is to be noted that the victim girl was residing at Sangli. PW 10 Dilip and PW 11 Sunil have both stated that the motorcycle came from the side of Sangli. It is to be noted that Ashta, RK Dhaba at Islampur and Pethnaka are all on the straight road from Sangli which goes to Kolhapur Pune National Highway No. 4. Ashta is about 20-22 kms from Sangli and Pethnaka is about 30 kms from Ashta. Thereafter, Sangli Pethnaka road joins the Kolhapur Pune National Highway No. 4. From Pethnaka if one turns right, Kalammawadi which is situated in the jurisdiction of Kasegaon Police Station, is situated at a distance of about 11 kms from Pethnaka. Thus, Kasegaon is situated at a distance of about 62-65 kms from Sangli. Both PW 10 Dilip and PW 11 Sunil have not only stated that the motorcycle came from Sangli side but they have also stated that the person riding the motorcycle was having height and black complexion. Both of them have stated that the motorcycle rider was accompanied by a girl who was wearing school uniform. They have identified the photograph of the girl from her identity card as well as school uniform (Article E) worn by the victim girl when she came to their shop. PW 3 Anil Olekar who is the school teacher in the school in which the victim girl was studying , has also identified the school uniform. Moreover, the parents of the victim girl i.e. PW 2 Gangaram and PW 5 Usha have also identified the school uniform (Article E) as being the same worn by their daughter on the date she disappeared.
Mr. Apte, learned Advocate for the accused pointed out that PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil have identified the accused for the first time in the Court. He submitted that PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil had not seen the accused at any time before 26.2.2011. Mr. Apte submitted that no test identification parade was held prior to identification of the accused in the Court and as such, the evidence of PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil directly identifying the accused in the Court without any previous test identification parade cannot be relied upon. In support of his contention, he has placed reliance on the decision of the Supreme Court in the case of Budhsen and Another Vs. State of U.P., . He pointed out that in the said case, it was observed that the evidence of mere identification of the accused at the trial for the first time is from its very nature inherently of a weak character. On perusal of this decision, we find that in this decision, it is thereafter mentioned that there may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. It may be kept in view that the power to identify varies according to the power of observation and memory of the person identifying and each case depends on its own facts. It is also observed that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. We have already stated that PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil have all identified the accused in the Court that is in their substantive evidence they have identified the accused. Identification of an accused in identification parade does not constitute substantive evidence.
In the present case, it is seen that PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil all had an opportunity to see the accused person in broad day light. They did not have just fleeting glimpse of the accused but they had occasion to interact with the accused. PW 3 Anil Olekar has stated that on 26.2.2011, the school started at 12 noon. There was lunch time on that day in between 2 p.m. to 2.30 p.m. All the students in the school came to the ground for taking lunch. Then Anil Olekar went to the bank of their school, which is opposite the gate of their school. Within 10 minutes, he returned from the bank to the school. At that time, he saw one Hero Honda Splendor motorcycle parked near the tree in the ground of the school. The number of the said motorcycle was MH-14-W-171. Near the said motorcycle, one person having height and black complexion was seen by him. Anil Olekar also saw the student in his class namely the victim girl who was standing in front of the said person, therefore, Anil Olekar had doubt about the said person. He asked the said person who he was and what he wanted. At that time, the said person told him that he is the maternal uncle of the victim girl. Then Anil Olekar asked the victim girl who is the said person and she told him that he is her maternal uncle. Anil Olekar then asked the victim girl what is meant by maternal uncle. At that time, the victim girl told him that the said person is brother of her mother. Then the said person i.e. the accused asked Anil Olekar to allow him to take the victim girl outside as he wanted to purchase a new dress for her. Anil Olekar refused to let him take the victim girl and told the accused that the school hours were going to be over within sometime. Meanwhile Anil Olekar was called to the office of the school, hence, he went in the office of the school. At about 2.30 p.m., he went to the class room. At that time, he noticed that the victim girl was not in the class room, hence, he came to the conclusion that her maternal uncle might have taken her.
The evidence of PW 3 Anil Olekar shows that he had interaction with the accused and he had an opportunity to observe the accused for some period of time. It was not a case of just fleeting glimpse of the accused. Same is the case with PW 10 Dilip. When the accused came to the shop of Dilip with the victim girl, at that time, there was no one in his shop, hence, Dilip could easily concentrate on the accused and what the accused wanted. As the attention of the witness was not divided on account of having to cater to other customers at the same time, his full concentration was focussed on the accused. This witness noticed that the accused purchased two goggles. One of the goggle was of rosy colour glass and black frame of fibre which the accused had purchased for the young girl. Dilip had noticed that the girl was wearing school uniform. It is pertinent to note that this very goggle was found near the dead body of the victim girl in Kalammawadi and the said goggle (Article A) has been identified by Dilip. Dilip has further stated that the motorcycle rider who was having height and black complexion was speaking in Kannad language with the girl. As Dilip''s wife could understand Kannad language, his wife asked the girl her name. The girl gave her name. The girl also told that she is from Sangli and she had come along with her maternal uncle. Thus, all this shows that PW 10 Dilip had sufficient time to observe the accused and the girl as the wife of Dilip on noticing that the girl had spoken to the accused in Kannad language, Dilip''s wife also interacted with the girl and asked her few questions regarding her name which the girl replied and the girl gave further particulars that she is from Sangli and she had come along with her maternal uncle. As it was broad day light when PW 10 Dilip saw the accused and the young girl and on account of interaction between him and his wife with the accused and the young girl, there was sufficient time for Dilip to observe the accused and identify him later.
As far as PW 11 Sunil is concerned, when the accused went to his hotel with the victim girl, no one was present in the hotel. Thus, Sunil had sufficient opportunity to observe the accused. He had noticed that the accused was having height and black complexion and was having a motorcycle and the motorcycle came from Sangli side. The girl with the accused was wearing school uniform. The accused purchased one packet of food article known as bobby (kurkure). It is pertinent to note that this very food article i.e. bobby was found near the dead body in the field in Kalammawadi. As there was no other customer in the hotel at the time the accused came to the hotel, Sunil could give his full attention to the accused and the minor girl. Sunil saw the accused and the victim girl on 26.2.2011. Thereafter, he identified the accused on 2.3.2011 in the police station, hence, there was no long gap as to cause him to forget the accused. Same is the case with PW 10 Dilip.
In the case of Budhsen (supra), the entire case depended upon the identification of the accused and his conviction was founded solely on the test identification parade in which there were many lacuna, hence, identification of the accused was not relied upon and the accused were acquitted. On perusal of the decision in the case of Budhsen (supra), it becomes at once clear that the aforesaid observations were made in the light of the peculiar prevailing facts and circumstances of the said case.
However, the Supreme Court has considered the evidentiary value of identification of the accused by a witness in a case where the eye witness did not know the accused earlier and where no test identification parade had been held. The Supreme Court observed that whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It was so observed in the decision of the Supreme Court in the case of Raman Bhai Naran Bhai Patel and Others Vs. State of Gujarat, . In the said case, it was held that in absence of test identification parade, it cannot be said that the evidence of an eye witness would become inadmissible or totally useless.
In the decision of the Supreme Court in the case of Raman Bhai Naran Bhai Patel (supra), two witnesses directly identified the accused in the court without any previous TIP. The Supreme Court negatived the contention that such identification is of no assistance to the prosecution. The Supreme Court observed that as the witnesses were injured in the incident, they could have easily seen the faces of the persons assaulting them and the appearance and the identity would remain printed in the minds of witnesses especially when there were assaulted in broad day light.
Mr. Apte, the learned counsel for the accused further argued that so far as identification of the accused by PW Anil Olekar, PW 10 Dilip and PW 11 Sunil at the time of trial without participation in test identification parade is concerned, such identification is worthless and therefore, that part of evidence should be excluded from consideration and thus a vital link in the chain of circumstances would be missing. Due to this, conviction on the basis of such identification ought to be set aside.
In connection with the above arguments of Mr. Apte, we may make useful reference to a decision of the Supreme Court in the case of Ronny @ Ronald James Alwaris Etc. Vs. State Of Maharashtra, . In the said decision, it is observed that the statement of the witness made in the court is substantive evidence whereas the evidence of identification in the TIP is not substantive evidence but it is only corroborative evidence. It falls in the realm of investigation. The purpose of test identification parade is to test the observation, grasp, memory, capacity of a witness to recapitulate what he has seen earlier, the strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. But if a witness has seen an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, his statement in court about the identification of accused should be relied upon as any other acceptable but uncorroborated testimony. The identification of the accused by a witness if the witness had an opportunity to interact with the accused or to notice his distinctive features lends assurance to his testimony in court and absence of corroborative evidence by way of test identification parade would not be material.
In the case of Ronny (Supra), the prosecution had relied on the evidence of two witnesses i.e. PW 29 and PW 34. Both these witnesses had directly identified the accused for the first time in court. The evidence of both these witnesses was relied upon by the prosecution to show that the accused persons had come to the bungalow of the deceased on the night of the incident. The evidence of both these witnesses was accepted by both the trial court as well as the High Court that the accused persons were seen entering the bungalow of the deceased on the previous night. The Supreme Court has observed that both the courts below had rightly accepted the identification of the accused by these two witnesses. The accused persons were not known to both PW 29 and PW 34 prior to the date of incident, however, both these witnesses had a talk with the accused when the accused came to the bungalow. Some talk took place between the witnesses and the accused for about 7-8 minutes. Thereafter, the accused persons entered into the bungalow. On the next day, the inmates of the bungalow were found dead. The Supreme Court held that identification of the accused by a witness if he had an opportunity to interact with him or notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of TIP would not be material.
In the present case also, PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil had an opportunity to interact with the accused and deceased. Thus, there was every opportunity for them to observe these two persons i.e. accused and the deceased and to correctly identify the accused later on. It is not as if they had a fleeting glimpse for a few seconds of the accused and the deceased. In such situation, it can be said that they had sufficient opportunity to observe these two persons so as to correctly identify them later.
The learned APP has relied on the decision of Bench of three Judges of the Supreme Court in the case of Malkhansingh and Others Vs. State of Madhya Pradesh, . In the said case, the principal submission urged before the Supreme Court was whether the conviction of the appellants can be sustained on the basis of the identification of the appellants by the prosecutrix in the Court without holding a test identification parade in the course of investigation. The contention of the learned Advocate for the appellants therein was that the identification in the Court is not preceded by a test identification parade and hence is of no evidentiary value. It was observed by the Supreme Court in paragraph 7 as under:-
It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad Vs. Delhi Administration, ; Vaikuntam Chandrappa and Others Vs. State of Andhra Pradesh, ; Budhsen and Another Vs. State of U.P., and Rameshwar Singh Vs. State of Jammu and Kashmir, .
Thus, in the case of Malkhansingh (supra), direct identification by the witness of the accused in Court was relied upon, though no previous identification parade was held.
Learned APP also placed reliance on the decision of the Supreme Court in the case of Harbajan Singh Vs. State of Jammu and Kashmir, . In the said case, the Supreme Court held that failure to hold identification parade is not fatal where enough corroborative and conclusive evidence is present.
Learned APP also placed reliance on the decision of the Supreme Court in the case of Amitsingh Bhikamsing Thakur Vs. State of Maharashtra, . The Supreme Court in the said case observed that it is trite to say that substantive evidence is the evidence of identification in Court. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
In Amitsingh (supra), reference is also made to the decision of the Supreme Court in the case of State of Uttar Pradesh Vs. Boota Singh and Others, , wherein the Supreme Court observed where the witness has an opportunity of seeing the accused for some length of time, in broad day light, then he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.
This Court in the case of The State of Maharashtra Vs. Kamlakar Tanaji Shinde, also held that not-holding of test identification parade and the witnesses directly identifying the accused in the Court for the first time is not fatal to the prosecution.
As far as PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil are concerned, they are independent witnesses. PW 10 Dilip and PW 11 Sunil had no occasion to know either the deceased or accused prior to the incident. In such case, there was no question of them having any previous enmity or grudge against the accused person or any affinity towards the deceased and family of the deceased to cause them to falsely involve the accused. The evidence of these two witnesses is further corroborated by the fact that the goggle (Article A) with rosy colour glass sold by Dilip to the accused was found near the dead body. As far as PW 11 Sunil is concerned, the food article ''Bobby'' which was sold by him to the accused was found near the dead body. Thus, in the facts and circumstances of the present case, not holding of a test identification parade would not be fatal to the prosecution.
Thereafter, Mr. Apte submitted that as the accused was shown to PW 10 Dilip and PW 11 Sunil in the police station on 2.3.2011, hence, the identification of the accused by these witnesses in the Court cannot be relied upon. He has based this contention on the decision of the Supreme Court in the case of Ravindra @ Ravi Bansi Gohar Vs. The State of Maharashtra and Others, and a decision of this Court in the case of Ramcharan Bhudiram Gupta Vs. State of Maharashtra, . In the case of Ravindra (supra), the Supreme Court observed thus:-
The next unusual feature of the case, is the showing of the photographs of the accused to the witnesses who were to identify them in T.I. parade..........
The identification parades belong to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits-and not by showing the suspects or their photographs. Such being the purpose of identification parades the investigating agency, by showing the photographs of the suspects, whom they intended to place in the T.I. parade, made it farcical.
In the case of Ravindra, an identification parade was held and prior to that the photographs of the accused were shown. It was in these circumstances that it was held that the identification of the accused in the parade could not be relied upon. Such are not the facts in the present case, hence, this decision cannot be made applicable to the facts of the present case.
In the case of Ramcharan (supra), this Court held that when prior to the identification parade, there was reasonable opportunity for the witness to see the accused in the police station, the identification of the accused in the parade cannot be relied upon. In the present case, no parade was held, hence, this decision cannot be made applicable to the present case.
The next circumstance against the accused is that the dead body of the victim girl was recovered at his instance. After PW 2 Gangaram had a talk with PW 3 Anil Olekar, the class teacher of his daughter, he suspected that the accused had kidnapped his daughter. Then, he along with other witnesses started searching for the accused. One of the said witnesses was PW 4 Sachin. They all went to Pune where the accused used to work and searched for the accused. Eventually, they traced him at Katraj Bus Stand in Pune and brought him to the house of Gangaram. Both Gangaram as well as Sachin have deposed on this aspect. After the accused was brought to the house of Gangaram, the accused was questioned about the whereabouts of the daughter of Gangaram but the accused gave evasive answers. Then PW 2 Gangaram contacted Anil Olekar who was the class teacher of the victim girl, on cellphone and asked him to come to his house. He asked Anil Olekar to identify whether the accused was the same person who had taken his daughter from the school. Anil Olekar identified the accused and stated that he is the same person who had taken the daughter of Gangaram from the school. This fact is corroborated by the evidence of PW 4 Sachin who was part of the search party and who along with Gangaram brought the accused to the house of Gangaram. Sachin has also stated that Anil Olekar had identified the accused as the same person who had taken the daughter of Gangaram from the school. PW 1 Chandrakant who was in the house of Gangaram at the time the accused was brought to the house of Gangaram, has also stated about Anil Olekar identifying the accused as the same person who had taken Gangaram''s daughter from the school. Anil Olekar has stated that after he identified the accused as the same person who had taken Gangaram''s daughter from the school, he informed this fact to the founder of the school Shri. Gautam Patil Sir on cellphone. Gautam Patil Sir sent three constables to the house of Gangaram. Then police constables and Gangaram etc. enquired with the accused about the whereabouts of the victim girl.
The evidence of Chandrakant shows that on 27.2.2011 at about 7 p.m., Chandrakant went to the house of Gangaram. Usha told Chandrakant that they were suspecting about the accused, therefore, her husband Gangaram went to Pune in search of the accused. At about 10 p.m., Gangaram and his two friends returned to the house of Gangaram with the accused. Chandrakant asked the accused the whereabouts of the victim girl, thereupon the accused gave him inconsistent and self contrary information. Then Gangaram called the teacher of his daughter namely PW 3 Anil Sir to the house. Anil Sir told them that the accused is the same person who had taken the victim girl on motorcycle on 26.2.2011 at 2 p.m. from the school. Then Anil Sir informed Gautam Sir on his cellphone about the incident of the victim girl. Gautam Sir sent three police constables to the house of Gangaram. Then they all asked the accused about the whereabouts of the victim girl. The accused told them that the victim girl was at Jaysingpur. Then Chandrakant, three policemen including the accused and two other persons went to Jaysingpur. When they reached Jaysingpur, the accused told them that the victim girl is at Kasegaon and he has kept the victim girl with one Ramesh at Kasegaon as he received amount of Rs. 3500/- from Ramesh. Then on 28.2.2011 at about 1 midnight, they all went to Kasegaon from Jaysingpur with the accused. Chandrakant made enquiry about the victim girl at Kasegaon. He came to know that there was no person by name Ramesh at Kasegaon. Then they all asked the accused about the victim girl. The accused then told that on the day of the incident at about 2 p.m., he took the victim girl to Kasegaon by motorcycle. The accused further told them that he committed rape on the victim girl at about 4 pm in the sugarcane crop near Kasegaon and committed her murder by twisting her neck and he had thrown her dead body in the sugarcane field. The accused then took them to the spot in the sugarcane crop where the dead body of the victim girl was lying. Injuries were found on the dead body of the victim girl.
The evidence of PW 1 Chandrakant is fully corroborated by the evidence of PW 13 Police Constable Sanjay Pawar. PW 13 Police Constable Sanjay Pawar has stated that his colleague Anil Rajput received call on cellphone from Gautam Patil. After attending the call, Anil Rajput told Sanjay Pawar that the daughter of one Gangaram residing at Sangli is kidnapped by her maternal uncle. Anil Rajput told Sanjay Pawar that the relatives of the said girl had brought the accused. The accused is stating that he did not kidnap the victim girl. Anil Rajput told Sanjay Pawar that Gautam Patil requested him to visit the said place and make enquiry. Then Sanjay Pawar along with Avinash Kamble and Anil Rajput visited the house of Gangaram. At the residence of Gangaram, they met Anil Olekar who was the teacher of the said girl. Anil Olekar told Sanjay Pawar that on 26.2.2011, the accused along with the victim girl were chitchatting on the ground of the school, therefore, Anil Olekar made enquiry with the accused. At that time, the accused told Anil Olekar that he is the maternal uncle of the girl and he wanted to take her outside for purchasing dress for her. Thereafter, the accused went away with the victim girl. Anil Olekar further told Sanjay Pawar that now the accused was refusing that he took the girl with him. Then Sanjay Pawar asked the accused his name. He gave his name as Sadashiv Jetappa Kamble. Sanjay Pawar asked him where was the victim girl, however, the accused did not disclose immediately the whereabouts of the girl. Relatives of the accused asked Sanjay Pawar to ask the accused about the whereabouts of the girl. The accused then disclosed that the girl was at Jaysingpur. For confirming this fact, PW 13 Sanjay Pawar along with Avinash Kamble, Anil Rajput and relatives of the victim girl went to Jaysingpur. When they reached Jaysingpur, they asked the accused the whereabouts of the girl at Jaysingpur. The accused told Sanjay Pawar that due to fear, he falsely told that the victim girl was at Jaysingpur. Then Sanjay Pawar again asked the accused where the girl was. At that time, the accused told Sanjay Pawar that the girl was with one Ramesh at Kasegaon. He also told that he kept the victim girl with Ramesh as he was liable to pay Rs. 3500/- to Ramesh. From Jaysingpur, they all then went to Kasegaon. They reached Kasegaon on 28.2.2011 at 1 midnight. They searched for Ramesh but there was no one by that name at Kasegaon. Then Sanjay Pawar again asked the accused where the girl was. At that time, the accused told that he took the girl on 26.2.2011 from her school and he came to Kasegaon along with her. He further told that in sugarcane crop near Kasegaon, he committed rape on the victim girl and committed her murder by twisting her neck. They then went to the said sugarcane crop. The accused showed the spot in the sugarcane crop. He pointed out the dead body which was lying in a furrow in the said sugarcane crop. Sanjay Pawar saw the dead body of the girl. There were injuries on the dead body. The evidence of PW 13 Police Constable Sanjay Pawar is corroborated by the evidence of PW 1 Chandrakant who is the uncle of the victim girl. Thus, after excluding the inadmissible parts of the statement made by the accused, it is seen that the dead body was discovered at the instance of the accused.
Mr. Apte stated that though according to the prosecution, the dead body of the victim girl was recovered at the instance of the accused, however, no previous statement made by the accused in relation to discovery of the dead body was reduced into writing. He submitted that as the statement made by the accused was not reduced into writing, the said discovery of dead body at the instance of the accused cannot be relied upon. To support this contention, he placed reliance on the decision of the Supreme Court in the case of Prabhu Vs. State of U.P., . He placed reliance on paragraph 9 of the decision wherein it is observed as under:-
The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery. According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohammad. Lal Bahadur Singh was examined as prosecution witness No. 4. He did give evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not, however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. One other witness Dodi Baksh Singh was examined as prosecution witness No. 3. This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him; then the appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. These statements to which Dobi Baksh (P.W. 3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by Sections 25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of s. 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any discovery within meaning of s. 27. Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. In Prabhu Vs. State of U.P., : the Privy Council considered the true interpretation of s. 27 and said:
It is fallacious to treat the ''fact discovered'' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ''I will produce a knife concealed in the roof of my house'' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ''with which stabbed A.'', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (p. 77 of Ind. App).
We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his.
On going through the decision in the case Prabhoo (supra), we find that it is not stated anywhere that as the statement made by the accused was not reduced into writing, the recovery cannot be taken into consideration. On the other hand, what this decision states is that in relation to the statement made by the accused what parts are admissible and what parts are inadmissible. It was held that the statement of the accused that he used the axe to commit the murder is inadmissible. However, if the accused had stated that he will produce the axe which was concealed by him in his house, it would be admissible. The Supreme Court held that the Courts below were wrong in admitting the inadmissible portion in the statement made by the accused. In the present case even after inadmissible parts are excluded from consideration from the evidence of PW 13 Sanjay Pawar, it is seen that the accused has stated that the dead body of the victim girl was in sugarcane crop near Kasegaon. Thereafter, the accused took them to the said spot and showed the sugarcane crop and where the dead body of the victim girl was lying in the sugarcane crop. Thus, the evidence of PW 13 Sanjay Pawar shows that when he asked the accused where the victim girl was, the accused told him that the dead body of the victim girl was at Kasegaon and thereafter, the accused led them to the spot and showed the dead body of the victim girl which was lying in a furrow in the sugarcane crop. The evidence of PW 13 Sanjay Pawar is corroborated by the evidence of PW 1 Chandrakant on this aspect.
Thereafter, Mr. Apte relied on the decision of the Supreme Court in the case of Niranjan Panja Vs. State of West Bengal, . Mr. Apte pointed out that in the said decision, it has been stated that for effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only the part of the statement which is not incriminating and leads to discovery which becomes admissible. In the said case, the recovery was not relied upon because the weapon which was allegedly produced by the accused was never produced before the Court and the prosecution has also not given any explanation whatsoever about the disappearance of this weapon. On carefully going through this decision, we find that again it deals with the aspect as to what part of statement made by the accused is admissible and the ratio in this decision is that only the part of the statement which is not incriminating and leads to discovery becomes admissible. The ratio of this decision does not appear to be that if a statement made by the accused is not recorded, evidence relating to the discovery becomes inadmissible.
It is well settled that the observations in a judgment cannot be de hors the point which is sought to be raised and the facts in which such point is raised. The observations cannot by themselves form the ratio of the decision. The ratio of the decision is to be drawn after considering the facts of the case, the point which is sought to be raised in the matter, the arguments which are canvassed in support of rival contentions in relation to such point, the discussion made by the Court with reference to such point canvassed by the counsel for the parties and the ultimate decision arrived thereupon. On taking into consideration all these aspects, the ratio of the decision has to be gathered. Any sentence in a judgment cannot be read as a statutory provision and the ratio in that regard is well settled by catena of decisions of the Apex Court. This has been clearly explained in different decisions of the Apex court including in the matter of Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, . It has clearly ruled therein that the decision is what it decides and not what follows from it.
In the decisions in the case of Prabho (supra) and Niranjan Panja (supra), the question did not arise specifically for consideration as to whether failure to record the information given by the accused would render the evidence relating to discovery by the accused inadmissible. However, this question arose directly for consideration before the Supreme Court in the case of Mohd. Arif @ Ashfaq Vs. State of NCT of Delhi, on which the learned APP has placed reliance. In the said case, the same question as in the present case specifically arose for consideration which can be seen from paragraph 169 of the judgment which reads thus:-
Now coming to the second argument of failure to record the information, it must be held that it is not always necessary. What is really important is the credibility of the evidence of the investigating agency about getting information/statement regarding the information from the accused. If the evidence of the investigating officer is found to be credible then even in the absence of a recorded statement, the evidence can be accepted and it could be held that it was the accused who provided the information on the basis of which a subsequent discovery was made. The question is that of credibility and not the formality of recording the statement. The essence of the proof of a discovery under Section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was a relevant and material discovery which proceeded in pursuance of the information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the Court but if the Court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement and in pursuance of that information some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon.
In Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, , no discovery statement was recorded by the investigating officer of the information supplied by the accused to him. Further no public witness was examined by the prosecution to support the theory that such an information was given by the accused to him in pursuance of which some material discovery was made. The Supreme Court, however, in spite of these two alleged defects, accepted the evidence of discovery against the accused on the basis of the evidence of the police officer. In the present case, we find the evidence of police constable PW 13 Sanjay Pawar to be wholly credible and reliable. He has not at all been shaken in his cross-examination. In such circumstances, we have no hesitation in relying on his evidence which shows that the dead body of the victim girl was discovered at instance of the accused.
It is pertinent to note that the dead body was not lying in an open field but was lying hidden in the sugarcane crop. It was lying near the 15th furrow of sugarcane from the edge of the field and as the sugarcane was 5-5 1/2 feet tall, it was not possible to spot the body unless one had special knowledge where the body was lying. That the sugarcane crop was 5-5 1/2 feet tall is seen from the evidence of PW 7 Shivaji Mane, the owner of the sugarcane field and from the evidence of PW 6 Shivaji who is the panch witness to the spot panchnama. This fact is also seen from the spot panchnama Exh. 31. PW 7 Shivaji has stated that the width of furrow was 2 feet. PW 7 Shivaji Mane has further stated that he used to water sugarcane crop every 15 days or once in a month depending upon the availability of electricity and while supplying water to sugarcane crop, he did not enter the sugarcane crop. The fact that the body was lying in the 15th furrow is seen from the evidence of PW 6 Shivaji and the spot panchnama Exh. 31. Thus, if the accused had not showed where the dead body of the victim girl was lying, the body would not have been found.
Thereafter, the issue was raised by Mr. Apte that the accused was not in custody when he made a statement to PW 13 Police Constable Sanjay Pawar and therefore, it cannot be said to be a recovery under Section 27 of the Evidence Act. The Supreme Court in the case of Mohd. Arif (Supra) has observed thus:-
Firstly speaking about the formal arrest for the accused being in custody of the investigating agency he need not have been formally arrested. It is enough if he was in custody of the investigating agency meaning thereby his movements were under the control of the investigating agency. A formal arrest is not necessary and the fact that the accused was in effective custody of the investigating agency is enough.
Similar view as above has been taken by the Supreme Court in the case of Vikram Singh and Others Vs. State of Punjab, , wherein the Supreme Court reiterated that there was no need of formal arrest for applicability of Section 27. It was observed in paragraph 12 as under:-
....We are of the opinion that word "arrest" used in Section 46 relates to a formal arrest whereas Section 27 of the Evidence Act talks about custody of a person accused of an offence. In the present case the appellants were undoubtedly put under formal arrest on the 15th February 2005 whereas the recoveries had been made prior to that date but admittedly, also, they were in police custody and accused in an offence at the time of their apprehension on the 14th February 2005. Moreover in the light of the judgment in the Constitution Bench and the observation that the words in Section 27 "accused of any offence" are descriptive of the person making the statement, the submission that this Section would be operable only after formal arrest under Section 46(1) of the Code, cannot be accepted. This argument does not merit any further discussion.
The Constitution Bench of the Supreme Court in the decision in the case of State of U.P. Vs. Deoman Upadhyaya, observed that the statement made to police officer in the course of investigation between persons in custody and the persons not in custody, has little practical significance. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of S. 27 of the Indian Evidence Act. In paragraph 7 of the said decision, the Supreme Court observed as under:-
Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions, i.e., of statements made by a person stating or suggesting that he has committed a crime. By S. 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By S. 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under S. 24 and complete under S. 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in S. 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in State of U.P. Vs. Deoman Upadhyaya, by the Judicial Committee of the Privy Council, "S. 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation"...........
.......... Whereas S. 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, S. 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate......
....................Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered.................
........... By S. 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered.
The Supreme Court in the case of Deoman (supra) has observed that if the truth of the information given by the accused is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. In the present case, if we exclude all the information given by the accused which cannot be taken into consideration, what remains is that he had pointed out the body of the victim girl in a furrow in the sugarcane crop field. The dead body was discovered in consequence of the information which was given by the accused, hence, that much of the information is clearly admissible as distinctly relates to the fact of discovery of the dead body of the victim girl. Three possibilities are there when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by the accused himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.
The next circumstance which is relied upon by the prosecution is that of recovery of school bag and shoes of the victim girl at the instance of the accused. Panch witness PW 6 Shivaji Kamble has deposed on this aspect. PW 6 Shivaji has stated that he is a resident of Kasegaon. He was called at Kasegaon Police Station on 1.3.2011. The accused was present there. The accused stated before the panchas and the police that he had concealed the school bag and shoes of the girl near Datta Bhuvan at Nerle towards Kasegaon side on Nerle Kasegaon service road and he will produce it. This memorandum given by the accused was reduced into writing (Exh. 32). Shivaji has stated that thereafter, the accused led the police and the panchas to village Nerle. The accused asked them to stop the jeep near one small stream which is near Datta Bhuvan. The accused went to one small bridge and he produced one school bag and pair of shoes which were concealed under the dry leaves of tree. The colour of the school bag was like colour of military vehicles. School books and notebooks were in the said school bag. On some of the notebooks, the name of the victim girl was written. Police seized the school bag (Article D) and the shoes (Article C). Thereafter, panchnama (Exh. 33) was drawn. This school bag and shoes have been identified by the parents of the girl i.e. PW 2 Gangaram and PW 5 Usha as belonging to their daughter. It is pertinent to note that in the school bag recovered at the instance of the accused, notebooks bearing the name of the victim girl were found. This further corroborates the fact that the bag belonging to the victim girl was recovered at the instance of the accused.
The next circumstance against the accused is that blood stains were found on his shirt when he was arrested. PW 9 panch witness Tanaji has stated that on 28.2.2011, the police seized the full shirt of blue colour which was worn by the accused. There were blood stains on the shirt. The police also seized one banian and full pant and one underwear of blue colour. The C.A. report (Exh. 72) shows that semen stains were found on blue colour underwear of the accused and blood stains were found on the front side lower portion of his shirt. These two articles were sent for DNA analysis along with frock/uniform having blood stains which was on the body of the victim girl when her dead body was found. This frock was seized in the presence of panchas. PW 8 panch witness Mane has deposed about seizure of school uniform (Article E) of the victim girl having logo of Shantiniketan Bal Vikas Kendra, Sangli. The DNA report shows that the blood found on the frock/uniform of the victim girl, semen stains which were detected on the full pant and the underwear of the accused and the blood sample of the accused tallied. DNA of the blood found on the full shirt of the accused tallied with the DNA of the vaginal swab taken from the victim girl.
It is pertinent to note that the blood of the accused was found on the frock/uniform of the victim girl. This is because while committing forceful intercourse, the accused also sustained injuries on his penis. PW 14 Dr. Patil examined the accused after his arrest. He found the following injuries on the person of the accused:-
Posterior aspect of frenylum is torn, abrasion present 1/4 cm x 1/4 cm in size, blackish discolouration.
Thus, as the frenylum was torn, there would be bleeding from the penis of the accused which was found on the frock/uniform of the victim girl. As stated earlier, the blood found on the uniform of the victim girl tallied with that of the accused.
The next circumstance showing the complicity of the accused is that the medical evidence shows that the victim girl was forcibly raped and thereafter, throttled to death. The dead body of the victim girl was sent for postmortem. The postmortem was conducted by PW 14 Dr. Patil on 28.2.2011 at about 2.30 p.m. Dr. Patil noticed that blood was coming from external genitals and it had spread on groin and buttocks. Vaginal tears anterior and posterior aspect present, deep upto muscle. Hymen ruptured on all sides irregularly; bleeding present. According to Dr. Patil, this Injury is caused due to sexual assault.
As far as cause of death is concerned, Dr. Patil noticed ecchymossis underneath the subcutaneous tissues in the neck and fracture of hyoid bone. According to Dr. Patil, the fracture of hyoid bone is due to throttling over the neck. Bluish black ecchymosis seen over the infraclavicular region on chest on both sides. The cause is due to pressure over chest at the time of throttling the neck. Pleura-Congested on upper aspect which according to Dr. Patil is a sign of asphyxia by throttling. Dr. Patil further noticed that the lungs were enlarged and congested and larynx trachea, and bronchi were also congested, blocked by blood clots which is caused due to throttling. Dr. Patil gave a clear opinion that the girl was forcibly raped and thereafter throttled to death. According to Dr. Patil, death occurred within six hours of meal which is totally consistent with the prosecution case. So also his opinion that death had occurred within 24 to 48 hours of postmortem is also consistent with the prosecution case.
Thus, from the evidence of Dr. Patil and the other evidence on record especially the DNA reports, it is proved beyond reasonable doubt by the prosecution that the accused committed rape on the victim girl and thereafter, throttled her to death.
The next link in the chain of circumstances is that an injury was found on the private part of the accused. PW 14 Dr. Patil examined the accused after his arrest. He found the following injuries on the person of the accused:-
Posterior aspect of frenylum is torn, abrasion present 1/4 cm x 1/4 cm in size, blackish discolouration.
Thus, as the frenylum was torn, there would be bleeding from the penis of the accused which was found on the frock/uniform of the victim girl. Dr. Patil has clearly opined that the injury on the accused was on account of forceful sexual intercourse. Dr. Patil has also opined that the accused was capable of sexual intercourse. On account of the injury, the blood of the accused fell on the frock of the victim girl which is evident from the DNA report.
Mr. Apte submitted that the DNA reports have to be excluded from consideration because under Section 313, Code of Criminal Procedure, no question was asked to the accused about DNA report. To support this contention he placed reliance on the decision in the case of Shaikh Maqsood Vs. State of Maharashtra, . In the said case, it was held that if under Section 313, no question was put to the accused which established that he was the author of the crime, the conviction cannot be maintained. On a reading of paragraph 7 of the judgment, it is seen that no question at all was asked even remotely regarding existence of any material to hold the appellant guilty, however, in the present case, on going through the questions put to the accused under Section 313, it is seen that question has been put to him regarding DNA report. The questions have been framed in such a way as to enable the accused to know what he has to explain. Thus, this decision would not be of any help to the accused.
That the accused committed an offence under Section 376(2)(f) of IPC is also proved beyond reasonable doubt by the prosecution. In view of the evidence of PW 2 Gangaram and PW 5 Usha who were the father and mother of the victim girl, there can be no doubt that the victim girl was 8 years old. Both PW 2 Gangaram and PW 5 Usha have stated that she was 8 years old. PW 3 Anil Olekar who was the class teacher of the victim girl has also stated that she was 8 years old. Dr. Patil who conducted the post-mortem also stated that the victim girl was 8 years old. In addition, the prosecution has brought the birth certificate (Exh. 55) of the victim girl on record which is admitted by the defence. It shows the date of birth of the victim girl was 13.11.2003. The incident took place on 26.2.2011. Thus, on the date of the incident, the victim girl was 7 years 3 months old, hence, offence under Section 376(2)(f) is clearly made out.
Mr. Apte pointed out that though the accused has been convicted under Section 376(2)(f) of IPC, no charge has been framed under Section 376(2)(f) and charge was only framed under Section 376 of IPC against the accused. He submitted that in such case, the conviction under Section 376(2)(f) of IPC cannot be sustained.
Learned APP, on the other hand, submitted that in the charge (Exh. 9), it has been clearly stated that the victim girl was 7 years old and that the accused committed rape on the victim girl. She submitted thus the accused had clear notice that he was being charged for committing rape on a girl who was 7 years old. Section 376(2)(f) deals with the case wherein the accused has committed rape on a woman who is below 12 years of age. Thus, in the present case, the accused was made well aware of the fact that he was being faced with the charge that he had committed rape on the victim girl who was below 12 years of age.
The Supreme Court in a decision by a bench of three Judges in the case of K. Prema S. Rao and Another Vs. Yadla Srinivasa Rao and Others, , held that though the charge specifically under Section 306 IPC was not framed but all the ingredients constituting the offence were mentioned in the statement of charges, then mere omission or defect in framing of charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record.
We would like to make a reference to Section 215 of the Code of Criminal Procedure which states the effect of errors in framing charge. Section 215 reads as under:-
Effect of errors:-No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
We would also like to advert to Section 464 of the Code of Criminal Procedure. Section 464 reads as under:-
Effect of omission to frame, or absence of, or error in, charge-
(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
Thus, on going through both these sections, it is seen that only if the accused is misled or there is a failure of justice, omission to frame charge will vitiate the trial. In the present case, there was no question of the accused being misled as all the facts were clearly stated in the charge and also on account of this, there was no failure of justice.
The three Judge bench of the Supreme Court in the case of Dalbir Singh Vs. State of U.P., , in view of Section 464 of Code of Criminal Procedure held that it is possible for the appellate or revisional court to convict the accused for an offence for which no charge was framed unless the Court is of the opinion that the failure of justice will occasion in the process.
In the decision of the Supreme Court in the case of Anna Reddy Sambasiva Reddy and Others Vs. State of Andhra Pradesh, , the Supreme Court came to the conclusion that if the ingredients of the section charged are obvious and implicit, conviction under such head can be sustained irrespective of the fact whether the said Section has been mentioned or not in the charge.
In the decision of the Supreme Court in the case of State of U.P. Vs. Paras Nath Singh, , the Supreme Court after setting out Section 464 of Code of Criminal Procedure held that whether there is failure of justice or not has to be proved by the accused. In the present case, the accused has failed to prove that there is any failure of justice.
In the decision of the Supreme Court in the case of Mohan Singh Vs. State of Bihar, , though no charge under Section 302 was framed, the Supreme Court held that in the charge, all the ingredients of the offence were disclosed, hence, though no specific charge was framed under Section 302 of IPC, no prejudice can be said to be caused to the accused for non mentioning of Section 302 in the charge.
The Supreme Court in the case of Rafiq Ahmed @ Rafi Vs. State of U.P., , has observed thus:-
Upon reasonable analysis of the language of these provisions, it is clear that the Court has to keep in mind the ingredients which shall constitute a criminal offence within the meaning of the penal section. This is not only essential in the case of the offence charged with but even where there is comparative study of different penal provisions as the accused may have committed more than one offence or even offences of a graver nature. He may finally be punished for a lesser offence or vice versa, if the law so permits and the requisite ingredients are satisfied.
(Emphasis supplied)
The Constitution Bench in the case of Willie (William) Slaney Vs. The State of Madhya Pradesh, , dealt with a question as to whether omission to frame a charge was a curable irregularity. It was observed that in generality of cases, the omission to frame a charge is not per se fatal. It was further observed as under:-
Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood line that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
In a decision by the Privy Council in the case of Atta Mohammad Vs. Emperor AIR 1930 Privy Council 57(2). the accused raised the ground that he had been convicted without having had a fair opportunity of knowing what the charge was that he had to meet, and particularly of raising defences other than the one raised, or of relying on any circumstances which would have reduced the offence to a minor one. The Privy Council observed that the proceedings on the appeal, however, make it quite clear that in fact, he was deprived of no proper opportunity, that the nature of the charge was quite sufficiently known to him and to the advocate who appeared for him. Under these circumstances, their Lordships think it quite plain that there has been no departure from the requirements of natural justice, and that there has been a trial which in all substance was fair and which has given the prisoner every real opportunity that he required to understand the charge and make his defence.
The object of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial. One could say that a person who is charged with an offence under Section 326 may not be liable to be convicted for an offence under Section 406 IPC because their ingredients are entirely distinct, different and have to be established by the prosecution on its own strength. In the present case, the ingredients of Section 376 and 376(2)(f) are the same except that under Section 376(2)(f), the victim girl is below 12 years of age. From perusal of the charge (Exh. 9), it is clear that the charge was framed under Section 376 and it is clearly mentioned in the charge that the victim girl was 7 years of age. Thus, the accused had clear notice as to the charge that he was facing. He knew that he was being tried for rape on a girl below 12 years. The facts proved by the prosecution are closely relevant to and springing out of the same set of facts connected with the one charged. It is also to be noted that Section 376 is also punishable with life imprisonment and so is Section 376(2)(f). In the present case, we are satisfied from the material on record specially the charge (Exh. 9) that the accused was not misled nor was there any failure of justice and there was no prejudice to the accused.
On going through the facts of this case and looking to the charge, it would be proper to conclude that the accused was notified and knew just what he was being tried for and knew what was being alleged against him and no further particulars were necessary. The charge was explained to him. The noting in the Charge Ex. 9 clearly shows that it was read over and explained to the accused in Marathi. Thus, the accused knew that he was being charged for rape on a girl who was seven years old. Moreover, both Section 376 and Section 376(2)(f) provide for life imprisonment. The Code of Criminal Procedure like all procedural laws is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the code is to ensure that an accused person gets a full and fair trial along with certain well-established and well-understood canons of law that accord with the notions of natural justice. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this should have occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice. We have closely scrutinized the matter and we find that there is no failure of justice.
The last circumstance against the accused is that there is no explanation by the accused of any of the incriminating circumstances. The evidence of PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil shows that the deceased was last seen alive in company of the accused. In such case, the accused has to explain how the victim girl died. In this connection, we may refer to Section 106 of the Evidence Act. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principle which underlies Section 106 of the Evidence Act can be applied in the context of the last seen theory when certain facts are especially within the knowledge of a person. In a decision in the case of State of Rajasthan Vs. Kashi Ram, , the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.
It is important to note that in his statement under Section 313 of Code of Criminal Procedure, the accused has not given any explanation whatsoever for any of the circumstances brought on record by the prosecution against him. This as stated earlier provides an additional link which completes the chain of circumstances.
Mr. Apte then submitted that the surname of the accused is ''Bekanavar'' and not ''Kamble''. Thus, it is contended that the accused has been falsely implicated in this case and the real accused is one ''Sadashiv Jetappa Kamble'' and not the present accused who is ''Sadashiv Jetappa Bekanavar''. As far as this aspect is concerned, it is seen that PW 3 Anil Olekar, PW 10 Dilip and PW 11 Sunil have all identified the accused by face and not by name. As far as PW 2 Gangaram and PW 5 Usha are concerned, they were related to the accused, hence, there can be no question of mistaken identity. PW 5 Usha who is the mother of the victim girl has categorically stated that the accused is her maternal cousin brother. She has stated that at the relevant time, the accused was residing at Pune and he was doing labour work. She has given the native place of her husband Gangaram as Sarwad, Dist. Vijapur and stated that Kalappa, the brother of the accused was residing at Sarwad, Dist. Vijapur. Usha has also given the name of the mother of the accused as Sangavva. PW 5 Usha has stated that during her childhood, she used to go to Sank, Taluka Jath and the accused also used to come there during her childhood. The evidence of PW 2 Gangaram shows that the accused is the maternal cousin brother of his wife. Further from the evidence of Gangaram, it is seen that he has stated that on 26.2.2011 at about 9 p.m. as he suspected about the accused, he along with Kallappa who is the brother of the accused went in search of the accused to Pune where they eventually traced him. PW 5 Usha has also stated that on 26.2.2011 at about 9 p.m., her husband called Kallappa, the brother of the accused and others and they went to Pune to take search of the accused. Usha has stated that the accused used to visit her house once a week, in such case, Usha & Gangaram would know the accused very well. The victim girl also knew the accused very well as he was the maternal uncle of the victim girl. This can be seen from the evidence of PW 3 Olekar who was the class teacher of the victim girl. Olekar has stated that he asked the victim girl who the accused was and she replied that the accused is her mama (maternal uncle). Then Olekar asked the victim girl what is meant by Mama and she replied, it means mother''s brother. In view of all these facts, there can be no case of mistaken identity. It is pertinent to note that there is not even a whisper of a suggestion in the cross to the effect that the accused is not the maternal cousin brother of Usha or that he did not visit the house of Usha and Gangaram often. Nor is there any suggestion that Usha in her childhood did not visit Sank and the accused did not go to Sank. In the cross, there is no suggestion that Sangavva is not the name of the mother of the accused and Kalappa is not brother of the accused. There are many people who use two surnames. It was stated by the accused before us that the father of the accused is from Village Sarwad in Dist. Vijapur. Vijapur is on the border of Maharashtra and Karnataka. In areas which are situated on the border of Maharashtra, using of two surnames is common. Thus, we find no merit in this contention.
There is no eye witness in the present case and the case depends only upon circumstantial evidence. When the entire case rests on circumstantial evidence, great care must be taken in evaluating the circumstantial evidence to ensure that the circumstances on which the prosecution relies are wholly consistent with the sole hypothesis of guilt of the accused. When a case rests on circumstantial evidence, such evidence must satisfy oft quoted tests viz.:-(1) circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should unerringly point out towards the guilt of the accused; (3) the circumstances taken cumulatively should form a chain so complete so that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; (4) the circumstantial evidence in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence, should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence.
The legal principles with regard to the circumstantial evidence in criminal cases have been explained by the Supreme Court time and again. One of the cases in a long line of cases being Pawan Vs. State of Uttaranchal, . In this case, the Supreme Court has reiterated the principles in an earlier decision of the Supreme Court in the case of Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, . In the said case, the Supreme Court observed as under:
...... It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing the cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.
It needs to be emphasized while evaluating the circumstantial evidence, which of course has to be done carefully, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged and the circumstances so shown by the prosecution are compatible with no other reasonable hypothesis. Keeping these principles in mind, we have evaluated the evidence.
Where the entire case hinges on circumstantial evidence, great care must be taken while evaluating the circumstantial evidence which we have taken in the present case. We have discussed the 12 circumstances against the accused which the prosecution has proved to the hilt.
As against all the incriminating circumstances proved by the prosecution, there is no plausible explanation given by the accused as to why all these witnesses are deposing falsely against him. Keeping in mind, the legal principles in relation to the circumstantial evidence, we are of the opinion that the circumstances taken cumulatively form a chain which is so complete that it leads to the conclusion that within all human probability, the crime was committed by the accused and none else.
At this stage, Mr. Apte submitted that the learned Sessions Judge passed the order of conviction and sentenced the appellant to death on the same day. He submitted that this is clearly illegal and hence, the death sentence cannot be maintained. In order to support his contention, he has placed reliance on the decision of the Supreme Court in the case of Allauddin Mian and Others Vs. State of Bihar, . In the said case, order of conviction was recorded by the trial Court on 31.3.1987 and on the same day, the decision imposing the death penalty on the two accused was pronounced. Mr. Apte relied on the observations in the decision which are as under:-
We think as a general rule the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.
Thereafter, reliance was placed by Mr. Apte on the decision of the Supreme Court in the case of Malkiat Singh and Others Vs. State of Punjab, . In the said decision, reliance was placed on the earlier decision in the case of Allauddin Mian (supra) and it was held that the sentence awarded on the same day of finding of guilt is not in accordance with law. That would normally have the effect of remanding the case to the Special Court for reconsideration. Relying on these observations, Mr. Apte submitted that the matter be remanded back to the trial Court for hearing on the point of sentence.
Thereafter, Mr. Apte relied on the decision of the Supreme Court in the case of Rameshbhai Chandubhai Rathod Vs. State of Gujarat, . In the said case, the trial Court returned a finding of guilt of the accused on 18.5.2005 and on that day itself, heard the accused on the point of sentence and imposed death sentence on that very day. The Supreme Court observed that was not the purpose of Section 235(2) of the Code. Mr. Apte pointed out that while rendering the said decision, reliance was also placed on the earlier decisions of the Supreme Court in the case of Allauddin Mian (supra) and Muniappan Vs. State of Tamil Nadu, .
On the other hand, learned APP stated that it is not necessary for the trial Court to adjourn the matter and the judgment of conviction and sentence awarding the death penalty can be imposed on the same day. She placed reliance on the decision of the Supreme Court in the case of Ram Deo Chauhan @ Raj Nath Vs. State of Assam, . She pointed out that the said decision is of the bench of three Judges of the Supreme Court. In the case of Ramdeo Chauhan (supra), same question arose which has arisen in the facts of the present case which is seen from paragraph 24 of the said decision. Paragraph 24 reads as under:-
Learned counsel for the petitioner again made a futile attempt to challenge the verdict of the trial court under the cloak of technicalities and submitted that as the sentence and conviction were recorded on the same day, the judgment of the trial court was against the law. In support of his contentions, he relied upon the judgments of this Court in Muniappan Vs. State of Tamil Nadu, , Malkiat Singh and Others Vs. State of Punjab, and State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, .
In the case of Ramdeo Chauhan (supra), the decisions in the case of Muniappan (supra) and Malkiat Singh (supra) were considered wherein it was observed that the sentence awarded on the same day of finding of guilt was not in accordance with law. The Supreme Court in the case of Ramdeo Chauhan observed that in the case of Muniappan (supra) and Malkiat Singh (supra), the amendment made in Section 309 of Code of Criminal Procedure was not taken note of. By Criminal Procedure Code Amendment Act 1978, a proviso was added to sub-section (2) of Section 309 of the Code of Criminal Procedure to the effect that:
Provided also that no adjournment shall be granted for the purpose of only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
In Ramdeo Chauhan after making a reference to Section 309(2), it was held that the mandate of the legislature is clear and unambiguous that no adjournment can be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. In Ramdeo Chauhan''s decision, reference was made to the observations in Sukhdev Singh (supra) in relation to the third proviso to Section 309(2) which are as under:-
This proviso must be read in the context of the general policy of expeditious inquiry and trial manifested by the main part of section. That section emphasises that an inquiry or trial once it has begun should proceed from day to day till the evidence of all the witnesses in attendance has been recorded so that they may not be unnecessarily vexed. The underlying object is to discourage frequent adjournment. But that does not mean that the proviso precludes the court from adjourning the matter even where the interest of justice so demand. The proviso may not entitle an accused to an adjournment but it does not prohibit or preclude the court from granting one in such serious cases of life and death to satisfy the requirement of justice as enshrined in Section 235(2) of the Code
After taking note of the observations in Sukhdev Singh (supra) in Ramdeo Chauhan''s case, it was observed that if the Court proposes to award death sentence, the Court has discretion to adjourn the case in the interest of justice as held in Sukhdev Singh''s case. From paragraph 31 of Ramdeo Chauhan (supra), it becomes clear that the sentence cannot be altered on the reasoning that the trial Court did not adjourn the proceedings before pronouncing the death sentence.
Learned APP also relied on the decision of the Supreme Court in the case of State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, wherein again reference was made to third proviso to Section 309(2) of the Code of Criminal Procedure and it was observed that the accused is not entitled to an adjournment but the Court is not precluded from adjourning the case in the interest of justice.
Learned APP then placed reliance on the decision of the Supreme Court in the case of Gurdev Singh and Another Vs. State of Punjab, . In the case of Gurdev Singh, it was contended on behalf of the accused that the trial Court had pronounced the judgment on the same day on which the conviction was passed, hence relying on the observations in the earlier decisions of the Supreme Court in the cases of Muniappan (supra) and Allauddin Mian (supra), it was urged that the obligation of the trial Court under Section 235(2) of the Code of Criminal Procedure was not properly discharged as the trial Court did not adjourn the hearing of the case for sentencing after the order of conviction was pronounced. Keeping the contention raised in mind, the Supreme Court observed that the contention is entirely misplaced and as pointed out in Ramdeo Chauhan (supra), both the aforesaid judgments were delivered without considering the third proviso to Section 309(2) of the Code of Criminal Procedure, 1973.
In the case of Gurdev Singh (supra), after reproducing third proviso to Section 309(2) Cr.P.C., reliance was placed on Ramdeo Chauhan (supra) and it was observed as under:-
It was held that the mandate of the legislature is clear that no adjournment can be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed upon him. Nonetheless, the Court can in appropriate cases grant adjournment for the aforesaid purpose, if the proposed sentence is a sentence of death. From the material on record, it does not appear that any request was made to the learned Sessions Judge for adjournment. In the circumstances, we see no substance in the contention that the sentence imposed was vitiated for non-compliance with Section 235(2) of the Code of Criminal Procedure, 1973.
In the case of Gurdev Singh (supra), it was specifically held that the law laid down in the case of Allauddin Mian (supra) and Muniappan (supra) is not good law in view of third proviso which was added by way of amendment to Section 309(2) Cr.P.C. The learned APP pointed out that the judgments in the case of Munippan (supra) and Malkiat Singh (supra) were considered by the Supreme Court in Ramdeo Chauhan (supra) and they have been held to be not good law as proviso to Sec. 309 Cr.P.C. was not considered.
Thereafter, learned APP placed reliance on the decision of the Supreme Court in the case of Dagdu and Others Vs. State of Maharashtra, . This is a decision by the bench of 3 Judges of the Supreme Court. In this case, it was urged on behalf of the accused who was sentenced to death that the accused were not heard on the question of sentence and therefore, the sentence of death is not according to law. It was urged that the appeal should be remanded to the Court which sentenced them to death. It was observed that the imperative language of sub-section 235(2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence. In the present case, there is no dispute that the accused Sadashiv Kamble has been heard on the point of sentence. Not only the counsel for the accused made submissions on the point of sentence but the accused himself made submissions on the point of sentence which were considered by the trial Court. Thus, there is no dispute that the accused was indeed heard on the point of sentence. The only dispute is that the matter was not adjourned to another date for pronouncing the sentence of death. It was further held in the case of Dagdu (supra) that the failure on the part of the Court, which convicts an accused, to hear him on the question of sentence does not necessarily entail a remand in order to afford to the accused an opportunity to be heard on the question of sentence. The Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence.
In view of the decision in the case of Dagdu (supra), Learned APP submitted that it is not necessary to remand the matter and this Court itself can also give the accused an opportunity to place before the Court any additional material in relation to sentence. Here we may make useful reference to a recent decision of the Supreme Court by the bench of 3 Judges in the case of Deepak Rai Vs. State of Bihar, wherein it was observed in paragraph 53 as under:-
We must now briefly advert to the sentencing procedure prescribed by law. Under Section 235(2) of the Code, the Court on convicting an accused must unquestionably afford an opportunity to the accused to present his case on the question of sentence and under Section 354(3) record the extraordinary circumstances which warrant imposition of death sentence keeping in view the entire facts of the case and the submissions of the accused. In doing so if, for any reason, it omits to do so or does not assign elaborate reasons and the accused makes a grievance of it before the higher court, it would be open to that Court to remedy the same by elaborating upon the said reasons. Even when the reasons recorded by the Courts below do not conform to the statutory mandate or the judicially evolved principles, this Court, should reach the conclusion that harsher sentence of death requires to be imposed, could supplement them so as to justify the imposition of such sentence instead of remanding the matter to Courts below for re-consideration on the question of sentence.
Thus, in the case of Dagdu (supra) as well as in the case of Deepak Rai which are both decisions by the Bench of three Judges of the Supreme Court, it is held that if the trial Court fails to give a proper opportunity to the accused to present his case in relation to sentence, then Appellate Court can hear the accused on the point of sentence. Thus, in this view of the matter, we do not find it necessary to remand this case for hearing on the point of sentence and we propose to call upon the accused to state what he wishes to add in relation to sentence.
After considerable part of the judgment was dictated, the accused today i.e. on 5.5.2014 handed over three applications and some documents to the Court which are taken on record and marked "X2 colly". For the sake of convenience, we have numbered them as 1, 2, 3, & 4. In application No. 1, the accused has stated as under:-
He is suffering from HIV;
His name is not ''Sadashiv Jetappa Kamble'' but his name is ''Sadashiv Jetappa Bekanavar'', hence witnesses be examined to prove this fact. His contention is that the real culprit is not him but one Sadashiv Jetappa Kamble and the accused has been falsely implicated;
That at the time of arrest of accused, a mobile phone was found with him. According to the accused, he had no mobile phone and no mobile was found with him at the time of arrest and the mobile belongs to someone else and has been falsely foisted on him;
In application No. 2, the accused has stated as under:-
He is suffering from HIV;
That two cases were filed against him i.e. C.R. No. 40/11 of Chinchvad Police Station, Pune which relates to theft of motorcycle and C.R. No. 305/09 under Section 406 which was tried before the JMFC Court, Karad. The accused states that he has been falsely implicated in both these cases and he has been acquitted in both these cases. He has prayed that the judgments in these two cases be called for;
In application No. 3, the accused has raised the same contentions that he has raised in application Nos. 1 and 2. That is:-
He is suffering from HIV;
That two cases were filed against him i.e. C.R. No. 40/11 of Chinchvad Police Station, Pune which relates to theft of motorcycle and C.R. No. 305/09 under Section 406 which was tried before the JMFC Court, Karad. The accused states that he has been falsely implicated in both these cases and he has been acquitted in both these cases. He has prayed that the judgments in these two cases be called for;
That at the time of arrest of accused, a mobile phone was found with him. According to the accused, he had no mobile phone and no mobile was found with him at the time of arrest and the mobile belongs to someone else and has been falsely foisted on him;
His name is not ''Sadashiv Jetappa Kamble'' but his name is ''Sadashiv Jetappa Bekanavar'', hence witnesses be examined to prove this fact. His contention is that the real culprit is not him but one Sadashiv Jetappa Kamble and the accused has been falsely implicated.
In addition, the accused has stated as under:-
That no TIP was held;
That the evidence of PW 10 Dilip cannot be relied upon because he has no licence to run the shop;
That the signatures on the panchnamas in the present case are not of the accused;
That the attendance sheet of the school in which the victim girl studied bore signature of headmaster Gaikwad and Gaikwad was not the headmaster of the school''
After the identity card of the victim girl was found at Pethnaka, no FIR was registered;
The prosecution witnesses state that the accused came on motorcycle number MH-14/W-171 and kidnapped the girl, however, in the photograph, the motorcycle number is seen as MH-11/AW-7657. Hence, there is no connection between the motorcycle in theft case and the motorcycle in the present case which is MH-14/W-171;
The last point raised by the accused is that chilly plants were planted in the field of PW 7 Shivaji Mane amongst the sugarcane crop.
As the points in application Nos. 1 and 2 are repeated in application No. 3, we shall, for the sake of convenience, deal with the points raised in application No. 3.
The accused, in support of the above points, has also handed over a bunch of documents which are marked as Sr. No. 4 in Exh. X2 colly. We shall discuss these documents along with the point relating thereto raised in the application No. 3 preferred by the accused. The documents and points relating thereto are as under:-
a. Panchnama dated 9-3-2011 relating to recovery of shoes and school bag at the instance of the accused. This document is relied on to support point No. 7 that the signatures on the panchnamas are not of the accused;
b. The attendance sheet for the month of February 2011 of Shantiniketan Vidyamandir School Sangh. This document is relied upon to support Point No. 8 that Gaikwad was not the headmaster of the school;
c. Photograph of the motorcycle which shows number as MH-11/AW-7657. This document is relied upon to support Point No. 10;
d. FIR dated 21.2.2011 lodged u/S. 379 IPC by Datta Kamble in C.R. No. 40/11 of Chinchwad Police Station, Pune which speaks of theft of his motorcycle number MH-14/A-171. This document is relied upon to support Point No. 10;
e. Copies of other documents from charge sheet relating to C.R. 40/11 relating to theft of motorcycle number MH-14/A-171. This document is relied upon to support Point No. 10;
f. Subscriber details of Mobile No. 8308551132 and CDR of said mobile. This document is relied upon to support Point No. 3;
g. Police statement of Shivaji Mane (PW 7). This document is relied upon to support Point No. 11;
h. Police statement of Dilip Gawli (PW 10). This document is relied upon to support Point No. 6.
We have thoroughly considered the applications submitted by the accused and prayers therein and also heard the learned APP for the State and the counsel representing the accused. As far as first point which is common in all three applications is concerned that is the accused is suffering from HIV, we called from jail the medical report of the accused in relation to contention raised by the accused. Learned APP states that the report will be produced from Yerawada Central Prison where the accused was earlier lodged as well as Arthur Road Jail where the accused is currently lodged. The reports will be furnished latest by 7th May, 2014.
In relation to the second point that the judgment in two cases in which the accused was involved be called as he has been acquitted in both these cases. The learned APP submitted that the accused has been acquitted in both the cases, hence, we do not feel it necessary to call for the judgments. Nevertheless, learned APP stated that she will produce both the judgments on 7th May, 2014.
The third contention raised by the accused is about mobile phone being found with the accused at the time of arrest. In the judgment, we have not at all relied upon the fact that the mobile phone was found with the accused at the time of his arrest. Nor has the trial Court relied on this aspect in any way. The finding of the mobile phone with the accused has no relevance with the present case, hence, no further discussion is necessary in relation to the point raised in respect of mobile phone.
The fourth point which is raised is that the accused has claimed that his name is "Sadashiv Jetappa Bekanavar" and not "Sadashiv Jetappa Kamble". In order to prove this fact, the accused has requested to summon his father, brother and other persons of his village Sank, Taluka. Jat, Dist. Sangli as defence witnesses to prove he is "Sadashiv Jetappa Bekanavar".
We are not inclined to entertain the request made by the accused to adduce additional evidence on the aspect that his surname is "Bekanavar" and not "Kamble" for the sole reason that the prayer is devoid of any substance and merit therein. Perusal of record of the trial court reveals that the accused was given fair opportunity to defend the case against him. The accused was represented by a counsel during the trial. The witnesses for the prosecution were cross-examined at length by the defence counsel. The statement of accused was recorded u/s. 313 of Cr.P.C. The accused was offered opportunity to explain each and every incriminating circumstance appearing against him brought on record by the prosecution. The accused has not offered explanation to any of the circumstances put to him during the course of recording of statement u/s. 313 of Cr.P.C. The learned Additional Session Judge has specifically put the questions to accused as to whether he would like to examine himself as a witness in defence. So also, accused was asked as to whether he would like to examine any witness in defence. The accused was also asked as to whether he has to say anything about the prosecution case. The accused has neither offered to examine himself in his defence nor examine any witness in defence. So also, the accused has not raised any issue in respect of discrepancy in his name or issue relating to his identity in his statement under Section 313 Cr.P.C.
In order to prove it''s case, the prosecution has examined 17 witnesses. None of the prosecution witnesses including the Investigating Officer cross-examined by defence counsel any suggestion was put by the accused about his case of mistaken identity. The prosecution has adduced cogent, convincing and reliable evidence to fully establish the complicity of accused in commission of offence. The prosecution has established that the accused and none else is the offender.
We are not inclined to entertain the request of the accused to summon the father, brother and other witnesses as defence witnesses at this stage of final disposal of appeal. The trial court has discussed and rejected the contention of the accused as regards mistaken identity on the basis of alleged discrepancy in the surname of the accused. As per the case of the prosecution, the accused is related to PW 5 Usha, the mother of deceased. The accused is maternal cousin brother of PW 5 Usha. Prosecution has examined PW 5 Usha. Usha has categorically deposed that the accused is her maternal cousin brother. She has deposed in minute detail the fact relating to visit to her house by the accused on 22/02/2011 and demand of Rs. 2,000/- to start shop of mobile. She has also deposed about the talk in between her husband and accused and refusal on the part of her husband to pay Rs. 2,000/- to accused. She has also deposed about Rs. 80/- paid to accused by her husband and threat given by accused. In the cross-examination, she has categorically deposed that the native village of the accused is Sarwad, Dist. Bijapur. She has further deposed that she knows the occupation of the accused. When the defence counsel asked her to tell the name of the mother of accused, PW 5 Usha has disclosed the name of his mother as Sangavva. She has also deposed that the brother and sister of the accused used to visit her house. It has also come on record through the testimony of PW 5 Usha that after the deceased was found missing and it was suspected that accused might be the person who may have kidnapped the victim girl, Kallappa-the brother of the accused was called. Kallappa helped the father of the victim girl to trace the accused. Kallappa accompanied the father of the victim girl and other persons to trace the accused. The accused was traced in the evening at Katraj bus stand at Pune with the help of Kallappa-the brother of the accused. PW 2 Gangaram has deposed on the same line as that of PW 5 Usha. The accused was identified by PW 3 Anil Olekar-the school teacher, as the person who had visited the school on the day of incident and requested to take the victim girl for purchasing new dress for her. We have already dealt with this aspect of the surname of the accused being ''Bekanavar'' and not ''Kamble'' in detail in paragraph 91 of this judgment. In addition, it is pertinent to note that PW 5 Usha who is the maternal cousin sister of the accused has stated that the name of the mother of the accused is Sangavva and the name of the brother of the accused is Kallappa. We, therefore, asked the accused the name of his mother and he replied that the name of his mother is Sangavva. On query by us, the accused has stated that he has two brothers. The names of his brothers are Kallappa and Mahadev. In view of all these facts, it cannot be said that there is any case of mistaken identity.
The recourse to section 391 of Cr.P.C. is normally to be allowed in one of the following eventuality in which the appellate court thinks it necessary that additional evidence needs to be recorded for the just decision of the case:
i. The evidence sought to be called must be evidence which was not available at the trial;
ii. The evidence must be relevant to the issues;
iii. It must be credible evidence in the sense of being well capable of belief;
iv. The Appellate Court may take further evidence and direct it to be taken if it finds that some formal defect or lacuna is apparent or trial court may have improperly or negligently shut out important evidence or some material evidence which was not available or known earlier in spite of due diligence may have been subsequently found or necessary evidence may not have been produced. The failure of justice is prime consideration for appellate court in exercising such power.
v. Additional evidence is allowed to be produced only when it is the requirement of the court to elucidate truth or when interest of justice demands such a course. It cannot be allowed to fill up lacuna.
Having examined the request of the appellant in the light of purport of section 391 of Cr.P.C., we are of the view that no case is made out to entertain the request of the accused to examine the defence witnesses. The accused had an opportunity to examine the witness in defence before the trial court. It is no where case of the accused that the accused has applied for examination of the defence witness and same was turned down by the trial court. So also, it is not the contention of the accused that proper opportunity to defend himself was not provided by the trial court. The record and proceeding of the trial court reveals that full opportunity was given to accused to meet the case against him. It is, therefore, not the case of failure of justice due to denial of fair opportunity to accused by the trial court. We are, therefore, not inclined to entertain the prayer to call defence witnesses to prove the surname of the accused is "Bekanavar" and not "Kamble".
As far as point Nos. 5 and 6 in application No. 3 are concerned that is no TIP was held and the evidence of Dilip cannot be relied upon, the learned counsel for the accused had raised these points in the course of the arguments and these points have already been dealt by us.
The next point of the accused is that the signatures on the panchnamas in the present case are not his signatures. As far as this contention is concerned, it is pertinent to note that there is no cross-examination on this point of the concerned witnesses. Nowhere has it been put to the panch witnesses or to the investigating officers that the signatures on the panchnamas were not that of the accused. In addition, it is seen that in the statement under Section 313 also, the accused has not taken a stand that the signatures on the panchnamas were not his signatures. Thus, at this belated stage, no importance can be given to this contention which is clearly raised belatedly and by way of an afterthought.
Thereafter, point was raised in relation to attendance sheet. As far as the attendance sheet of the school in which the victim girl studied, it is the case of the accused that the signatures on the attendance sheet is purportedly that of headmaster Gaikwad and Gaikwad was not the headmaster of that school. Again, there was no cross on this aspect to any witness during the trial nor was any such stand taken when his statement was recorded under Section 313 Cr.P.C. In any event, as far as this attendance sheet is concerned, it was relied by the prosecution only to show that the victim girl did not attend the school on 26.2.2011 in the afternoon session i.e. the session between 2.30 p.m. to 3.00 p.m. As far as non attending of the afternoon session of the school by the victim girl is concerned, PW 3 Anil Olekar, the class teacher of the victim girl has specifically stated that the victim girl did not attend the second session of the school. We have relied on the evidence of PW 3 Anil Olekar and we noticed that there is no cross-examination on this point to PW 3 Anil Olekar. We have not at all relied on the attendance sheet of the school in which the victim girl had studied, hence, the attendance sheet is a document which has not swayed our judgment one way or the other.
The next point raised by the accused is that after the identity card of the victim girl was found at Pethnaka, no FIR was registered by anyone. There was no necessity of registering any FIR after the identity card of the victim girl was found and we feel this contention has no bearing on the present case and this contention is in noway helpful to the accused.
Thereafter, the point is raised that prosecution witnesses in the present case state that the accused came on motorcycle No. MH-14/W-171 but the photos of the motorcycle which was seized shows number as MH-11/AW-7657, hence, there is no connection between the two motorcycles. As far as this point is concerned, the documents at Sr. Nos. ''d'' and ''e'' which are produced by the accused himself shows that C.R. No. 40/11 pertains to theft of motorcycle No. MH-14/AW-171. The motorcycle belonged to Datta Kamble and he lodged FIR on 21.2.2011 at Chinchwad Police Station, Pune regarding theft of his motorcycle. The papers relating to C.R. 40/11 which have been produced by the accused himself show that the motorcycle was traced at Katraj Bus stand, Pune. When the motorcycle was traced, its number was MH-11/AW-7657 but the engine number and chassis number tallied with those belonging to motorcycle No. MH-11/AW-171. Thus, when photographs were taken of the motorcycle when it was seized in C.R. 40/11, the photographs showed number MH-11/AW-7657. In fact, Datta Kamble has specifically stated that the person who stole his motorcycle changed the number to MH-11/AW-7657. It is pertinent to note that the motorcycle was stolen on 20.2.2011 from Pune and it was found on 28.2.2011 at the bus stop at Katraj and the accused was traced by PW 2 Gangaram and others in the evening of 27.2.2011 at Katraj Bus stop. The only reason the accused was acquitted in C.R. 40/11 is that none of the witnesses examined in the said case had seen the accused with the bike. PW 2 Gangaram & PW 3 Olekar who had actually seen the accused riding motorcycle No. MH-11/W-171 on 22.2.11 & 26.2.11 i.e. during the period it was reported stolen, were not examined in C.R. No. 40/11. Had these two witnesses been examined in C.R. 40/11, the case may not have ended in acquittal. We refrain from dealing with this point any further, suffice to say, there is no merit in this point.
The last point raised by the accused is that chilly plants were planted in the field of PW 7 Shivaji Mane amongst the sugarcane crop and there is no mention in the spot panchnama that there were chilly plants in the sugarcane field. This shows that the entire case is false. PW 7 Shivaji Mane has stated in his evidence about chilly plants being planted in the sugarcane crop. He has further stated that sugarcane crop was planted in his field and the sugarcane crop was of the height of 5 feet. Thus, even if chilly plants were planted in the field of sugarcane crop, it would not affect the case in any way. The case of the prosecution is that the dead body of the victim girl was found in the sugarcane field, hence, even if some plants of chillies were planted amongst the sugarcane crop, it would not be possible to see the dead body. In the facts of the present case, even if there is no mention of chilly plants in the panchanama, it would not affect the prosecution case.
We have already observed earlier that on going through the evidence adduced by the prosecution, we find that there is sufficient evidence to sustain the conviction under Sections 302, 376(2)(f), 363 and 201 of IPC. This leads us to that all important question that is, whether the death sentence should be confirmed.
At this juncture, we called upon the accused regarding his say on the point of sentence. We also adjourned the matter to the next date to give a chance to the accused to put forth any material before us. However, on the next day, the accused said that he has stated what he has to state regarding his conviction as well as his sentence in his three applications and he does not wish to add anything more. In this view of the matter, we proceeded to hear the learned APP and Mr. Apte on the point of sentence.
A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material that leads to determination of the sentence after taking into consideration all the aggravating and mitigating circumstances.
Learned APP submitted that looking to the facts of this case, it is a fit case to confirm the death sentence. She submitted that looking to the fact that the accused has brutally raped a young, innocent, helpless, defenceless girl and thereafter murdered her, it calls only for the death penalty. She placed reliance on the decisions in the following cases to support her submission that death penalty should be awarded:-
Laxman Naik Vs. State of Orissa,
Dhananjay Chatterjee alias Dhana Vs. State of W.B.,
Kamta Tiwari Vs. State of M.P.,
Molai and Another Vs. State of Madhya Pradesh,
State of U.P. Vs. Satish,
Shivaji @ Dadya Shankar Alhat Vs. The State of Maharashtra,
Md. Mannan @ Abdul Mannan Vs. State of Bihar,
Rajendra Pralhadrao Wasnik Vs. The State of Maharashtra,
The State of Maharashtra Vs. Raju Jagdish Paswan,
On the point of death sentence, the learned APP placed reliance on the decision of the Supreme Court in the case of Laxman Naik (supra). In the said case, the accused had committed rape on a seven years old girl and thereafter murdered her and threw her body in the jungle. While upholding the death sentence, the Supreme Court observed thus:-
The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and almost occupied the status and position that of guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant must have believed in his bona fide and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the pre-planned unholy designs of the appellant. The victim was totally a helpless child there being no one to protect her in the desert where she was taken by the appellant misusing his confidence to fulfil his lust. It appears that the appellant had pre-planned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.
The evidence of Dr. Pushp Lata, PW 12, who conducted the postmortem over the dead body of the victim goes to show that she had several external and internal injuries on her person including a serious injury in her private parts showing the brutality with which she was subjected to while committing rape on her. The victim of the age of Nitma could not have ever resisted the act with which she was subjected to. The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated, cold blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare case attracting no punishment other than the capital punishment and consequently we confirm the sentence of death imposed upon the appellant for the offence under Section 302 of the Penal Code.
The learned APP pointed out that the facts in Laxman Naik (supra) and the present case are identical, hence, the accused deserves to be given the death sentence.
Thereafter, reliance was placed by the learned APP on the decision In the case of Dhananjay Chatterjee (supra). She stated that in the said case, the accused had committed rape and murder of a girl in the society where he was working as a security guard. The Supreme Court observed that cold-blooded brutal murder after committing rape on a young girl by security guard calls for death sentence as it falls in rarest of rare category.
In the case of Kamta Tiwari (supra), the accused kidnapped a young girl of 7 years, he committed rape on her, strangulated her to death and threw the dead body in a well. The Supreme Court observed as under:
That brings us to the question whether the sentence of death imposed upon the appellant by the trial Court for his conviction under 302 IPC and confirmed by the High Court should be maintained or not.......
......When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a ''rarest of rare'' cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society''s a abhorrence of such crime.
The learned APP submitted that the facts in the present case are also similar to Kamta Tiwari (supra), hence, sentence of death should be awarded.
Thereafter, learned APP relied on the decision in the case of Molai (supra). Learned APP stated that in this case, the Supreme Court awarded the death sentence to the accused for committing rape and murder of a 16 years old girl. The learned APP further placed reliance on the decision in the case of Satish (supra). She pointed out that in the said case, the accused had committed rape on a minor girl of about six years of age and thereafter committed murder of the girl. While confirming the death sentence, the Supreme Court observed that the case falls in the rarest of rare category and death sentence awarded by the trial Court was appropriate.
The learned APP pointed out that In the case of Shivaji @ Dadya Alhat (supra), the accused had committed rape and murder of a young girl aged 9 years. The Supreme Court held that the case falls within rarest of rare category and awarded the death sentence.
Thereafter, reliance was placed on the decision in the case of Mohd. Mannan (supra). In the said case, the accused had committed rape and murder of a child aged 7 years. The Supreme Court confirmed the death penalty in view of the gruesome manner in which an innocent child was raped. The Supreme Court observed that such cruelty towards a young child was appalling and the accused had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Observing thus, the death penalty was confirmed.
In the case of Rajendra Wasnik (supra), the accused aged 31 years committed rape on a three year old minor girl and thereafter committed her murder. Learned APP pointed that in the said case, the death sentence was confirmed.
In the decision in the case of Rajendra Wasnik (supra), after considering the earlier decisions relating to the sentencing policy in cases of death sentence, it was observed that the Court then would draw a balance-sheet of aggravating and mitigating circumstances. Both aspects have to be given their respective weightage. The Court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. It was also so observed in the landmark decision by the Constitution bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab, . In the case of Bachan Singh (supra), the Supreme Court observed that death sentence ought to be given in the rarest of rare cases and only after drawing a balance sheet of aggravating and mitigating circumstances.
Lastly, learned APP relied on a decision of this Court in the case of Raju Paswan (supra). The death sentence was awarded as the accused had committed rape and murder of a 9 years old girl. Learned APP pointed out that in the said case, on the circumstance of last seen and the fact that the accused showed the dead body of the deceased, the Supreme Court confirmed the death sentence.
In reply, Mr. Apte submitted that this case cannot be said to be a case which would fall in rarest of rare category wherein the sentence of death can be awarded or confirmed. He placed reliance on five decisions of the Supreme Court and one decision of this Court wherein, according to him, in similar cases, the Supreme Court and this Court commuted the death sentence to life imprisonment. The decisions of the Supreme Court are as under:-
Rameshbhai Chandubhai Rathod Vs. State of Gujarat, ;
Rajesh Kumar Vs. State through Govt. of NCT of Delhi, ;
Sandeep Vs. State of U.P., ;
Sangeet and Another Vs. State of Haryana, ;
Rajkumar Vs. State of M.P.1
Mr. Apte also placed reliance on one decision of this Court in the case of The State of Maharashtra Vs. Babu alias Ravindra Suresh Kamble, .
The first decision in which reliance was placed is the case of Rameshbhai Rathod (supra). Mr. Apte pointed out that in the said case, the accused had committed rape and murder of a girl who was 10 years old. In the said case, the death sentence was commuted to life imprisonment.
The next decision on which Mr. Apte placed reliance is in the case of Rajesh Kumar (supra). He pointed out that in the said case, the accused had in fact murdered two minor girls, yet the Supreme Court commuted the death sentence to life imprisonment.
The next case on which reliance was placed by Mr. Apte is the case of Sandeep (supra). The Supreme Court after examining various earlier decisions of the Supreme Court in the case of Bachan Singh (supra), Machhi Singh and Others Vs. State of Punjab, and other cases and following the decisions of the Supreme Court in the case of Swamy Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka, commuted the death sentence and held that the accused must serve minimum sentence of 30 years in jail without remission before consideration of his case for premature release.
In the case of Sandeep (supra), it was observed that in view of the dictum of the Constitution Bench in Bachan Singh (supra), the mitigating circumstances must be given due consideration. Mr. Apte pointed out that in the present case, the mitigating circumstances are that the accused is admittedly suffering from HIV which is seen from the Medical report and medical record of the accused which have been produced by the learned APP. Medical report is marked Exh. X5 & medical record is marked Exh. X6. He further pointed out that, according to the prosecution, the accused is involved in two other cases that is C.R. No. 40/11 under Section 379 of IPC and C.R. No. 305/09 under Section 406 of IPC. Mr. Apte pointed out that it is also an admitted fact that the accused has been acquitted in both the cases. In such case, it can be said that the accused has a clean record. Mr. Apte submitted that looking to all these mitigating circumstances, in the present case also, the death sentence ought to be reduced to life imprisonment.
Thereafter, Mr. Apte placed reliance on the decision of the Supreme Court in the case of Sangeet (supra). On going through the facts of this case, we find that they are not at all similar to the facts of the case in hand, hence, they cannot be made applicable to the present case.
Mr. Apte then relied on the decision in the case of Rajkumar (supra) in which the accused had committed rape and murder of a young girl. In the said case, the Supreme Court observed that before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime. The balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before option is exercised. It is further observed that it is evident that for awarding the death sentence, there must be existence of aggravating circumstances and the consequential absence of mitigating circumstances. Reliance was placed on the decision in the case of Swami Shraddananda (supra) wherein the Court set aside the sentence of death and awarded life imprisonment but further explained that in order to serve the ends of justice, the accused would not be released from prison till the end of his life. After considering the mitigating factors and the decision in the case of Swami Shraddananda (supra), the Supreme Court in the case of Rajkumar (supra) set aside the death sentence and awarded life imprisonment, however, the Supreme Court clarified that the accused must serve a minimum of 35 years in jail without remission before consideration of his case for premature release.
Lastly reliance was placed by Mr. Apte on the decision of this Court in the case of Babu @ Ravindra Kamble (supra). Mr. Apte pointed out that in this case, the accused committed rape on a 5 year old girl and thereafter, murdered her, yet the death sentence was commuted to life after observing as under:
The crime committed is undoubtedly serious and heinous and the conduct of the appellant is reprehensible..........
Then the question is: whether the case can be classified as of a "rarest of rare" category justifying the severest punishment of death. Testing the case on the touchstone of the above decisions and balancing the aggravating and mitigating circumstances. We are not persuaded to accept that the case can be appropriately called one of the "rarest of rare cases" deserving death penalty
This Court after considering the mitigating circumstances, commuted the death sentence to life imprisonment.
The Constitution bench of the Supreme Court in Bachan Singh (supra) has observed that before the death sentence is imposed, a balance sheet of aggravating and mitigating circumstances should be drawn and thereafter, the decision whether or not the death sentence is to be imposed should be taken. Similar view is taken in a catena of decisions by the Supreme Court including Rajendra Wasnik and Sandeep (supra). In this view of the matter, we have proceeded to examine the aggravating and mitigating factors in this case. The aggravating factors in this case are that the accused has brutally raped a young, innocent, helpless and defenceless girl and thereafter, murdered her. According to the prosecution, the accused is habitually involved in illegal activities. Two cases were relied upon by the prosecution to show involvement of the accused in other offences i.e. C.R. No. 40/11 of Chinchvad Police Station, Pune under Section 379 of IPC relating to motorcycle theft and C.R. No. 305/09 under Section 406, however, it is seen from the judgments in these two cases which are produced by the learned APP and which judgments are marked "X3" and "X4" for identification that the accused has been acquitted in both the cases. Thus, in view of these acquittals, it has to be held that the accused has a clean record.
The mitigating factors are that the accused is suffering from HIV which is clear from the medical report and medical records (marked "X5 & X6") produced by the learned APP. The accused has been acquitted in the two cases relied upon by the prosecution to show that he is habitually involved in illegal activities. In view of the mitigating factors, we are not inclined to confirm the death sentence.
Though we are not inclined to confirm the sentence of death, we are instead inclined to commute it to life imprisonment, however, we are inclined to make the sentences of imprisonment under Sections 302 and 376(2)(f) consecutive. While taking this view, we may refer to a decision of the Supreme Court in case of Swamy Shraddananda (supra). In the said case also the accused had been sentenced to death. The Supreme Court felt that it was not a fit case to award a death sentence but the Supreme Court observed that a sentence of life imprisonment which, subject to remission, normally works out to a term of 14 years would be grossly disproportionate and inadequate. The Supreme Court further observed that in such case, the court''s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, in which case the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e., the vast hiatus between 14 years'' imprisonment and death. The Court, therefore, can substitute a death sentence by life imprisonment for rest of life of convict or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual terms as specified in the order, as the case may be. Observing thus, the Supreme Court substituted the death sentence by imprisonment for life and directed the accused shall not be released from prison till the rest of his life.
We may also make useful reference to two decisions of the Supreme court i.e. Ronny @ Ronald James Alwaris Etc. Vs. State Of Maharashtra, and Ravindra Trimbak Chouthmal Vs. State of Maharashtra, . In the case of Ronny (Supra), the accused persons had committed gang rape on a lady and murder during the course of the same incident. In this case, the Supreme Court felt it appropriate that the sentence under section 376(2)(g) of I.P.C. for gang rape shall run consecutively after serving the sentence for offence of murder i.e. the Supreme Court directed that the sentence of imprisonment under section 376(2)(g) of 10 years RI shall be served after the sentence of life imprisonment is over. So also, in the case of Ravindra Chouthmal (Supra), the Supreme Court directed that the sentence of seven years RI for the offence under section 201 of the I.P.C. be directed to run consecutively after the sentence of life imprisonment had run its course. In the case of Ravindra Chouthmal, the accused had murdered his wife and thereafter to cause the evidence of the crime to disappear, he had cut up the body and thrown the head in the creek.
In the decision of this Court in the case of The State of Maharashtra Vs. Kamlakar Tanaji Shinde, , the Division Bench of this Court directed that sentence of imprisonment under Section 364 of IPC shall be served after serving sentence of imprisonment under Section 302 of IPC. Similar view was taken by this Court in the decision in the case of Sunil Anandrao Sawant Vs. Government of Maharashtra, wherein this Court directed the sentence of three years RI under Sections 307 shall run consecutively after serving the sentence for the offence of murder.
Similar view was taken by this Court in the case of Babu @ Ravindra Kamble (supra). In the said case also, the accused was convicted under Sections 302, 376(2)(f), 363 and 201 of IPC. In the said case also, considering the mitigating circumstances, this Court commuted the death sentence to life imprisonment, however, the sentence of life imprisonment under Section 302 and sentence of imprisonment of 10 years under Section 376(2)(f) were directed to run consecutively.
There can be no doubt that the offence committed by the accused deserves severe condemnation and is a heinous crime but on looking to the cumulative facts and on balancing the aggravating and mitigating circumstances of the case, we do not think that the case falls in the category of rarest of rare cases. Hence, we are not inclined to confirm the sentence of death. However, as stated earlier by us, we are inclined to make the sentence of imprisonment u/ss. 302 and 376(2)(f) consecutive. We enquired with the Doctors who produced medical reports relating to the accused and who are present before us i.e. Dr. Bhirur of Arthur Road Jail and Dr. Gutte of Yeravada Central Prison, Pune. We asked the Doctors what would be the estimated lifespan of the accused and both stated that life span of the accused would be that of an ordinary person provided he continues with his medicines. Having regard to the totality of the circumstances, we pass the following order:
ORDER
i. The conviction of the accused under Sections 302, 376(2) (f), 363 and 201 of IPC is maintained.
ii. The sentence of imprisonment and fine and in default sentence under 363 and 201 is maintained.
iii. The sentence of death is commuted to life imprisonment, in addition thereto, fine of Rs. 1000/- in default simple imprisonment for two months.
iv. The sentence of life imprisonment u/s. 376(2)(f) of IPC is reduced to 10 years rigorous imprisonment, however, this sentence shall run after serving the life sentence u/s. 302 of IPC.
v. The sentence of imprisonment under Sections 363 and 201 of IPC shall run concurrently with above sentences of imprisonment.
vi. Thus, the reference is answered accordingly and appeal is partly allowed.
Before we part with the Judgment, we must place on record our appreciation for the valuable assistance rendered by Mrs. Mankuwar M. Deshmukh, the learned APP. We must also appreciate the sincere and dedicated efforts taken by Mr. Abhaykumar Apte who was appointed by the High Court Legal Services Committee to appear on behalf of the accused. Legal fees to be paid to Mr. Abhaykumar Apte in this matter by the High Court Legal Services Committee are quantified at Rs. 30,000/-.
1 Decision dt. 25-2-14 in Cri. Appeal 1419-1420 of 2013 (Coram: Dr. B.S. Chauhan & M.Y. Eqbal, JJ)