1. cri apeals 302-11 & 479-11.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 302 OF 2011
Nilesh Vijay Dhumal ]
Age : 23 Years, Occ. : Nil, ]
Resident of Dhom Colony, Wai, ]
Dist. Satara. ]
At present lodged in Kolhapur Central Prison, ]
Kalamba, Dist. Kolhapur. ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
Through Police Inspector Wai Police Station, ]
District Satara. ] Respondent
WITH CRIMINAL APPEAL NO. 479 OF 2011 (For Enhancement of Sentence) The State of Maharashtra ] (Through Wai Police Station C.R. No. 118/2009 ] Appellant (Org. Complainant) Versus Nilesh Vijay Dhumal ] Age - 23 Years, Occu. : Nil ] R/a. Dhom Colony, Wai, Dist. Satara. ] Respondent (Org. Accused) Mr. Abhaykumar Apte, Appointed Advocate for the Accused Mrs. V.R. Bhonsale, APP for the State Pg 1 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc CORAM : SMT. V.K. TAHILRAMANI & MR. V.L. ACHLIYA, JJ DATE : NOVEMBER 13, 2013.
ORAL COMMON JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :-
1. The appellant-original accused has preferred Criminal Appeal No. 302 of 2011 against the judgment and Order dated 23.12.2010 passed by the Sessions Judge, Satara in Sessions Case No. 89 of 2010.
ig By the said judgment and order, the learned Judge convicted and sentenced the accused as under:-
Convicted Sentenced To
u/S
302 Imprisonment for life and fine of Rs. 50,000/- in
default to suffer five years R.I.
376(2)(f) Rigorous Imprisonment for 10 years and fine of
Rs. 50,000/- in default to suffer five years R.I.
363 Seven years rigorous imprisonment and fine of Rs. 25,000/- in default to suffer Three years R.I.
The learned Sessions Judge directed that the substantive sentences of imprisonment shall run concurrently.
Being aggrieved by the sentence of life imprisonment awarded for the offence under Section 302 IPC, the State has Pg 2 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc preferred Criminal Appeal No. 479 of 2011 for enhancement of sentence given to the accused and as such challenged the impugned judgment and order dated 23.12.2010. In view of this factual position, both the appeals are taken up for hearing and disposed off by this common judgment and order.
2. The prosecution case briefly stated, is as under:
(a) The first informant PW 4 Pandit was residing at Dhom Colony, Wai, Dist. Satara. He was residing there along with his mother and his niece i.e the victim girl. The victim girl was studying in 6th standard at the time of the incident. The accused was residing in the neighbourhood of PW 4 Pandit along with his parents and one brother, hence, PW 4 Pandit knew the accused.
The inmates of the house of PW 4 Pandit were known to the inmates of the house of the accused and vice versa. The mother of PW 4 Pandit i.e grandmother of the victim girl used to leave her at the school at 10.00 a.m. everyday and PW 4 Pandit i.e maternal uncle of the victim girl used to pick her up from the school at 05.00 p.m. PW 4 Pandit also knew PW 2 Kisan Renjar - a teacher, Pg 3 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc who was his neighbour. Kisan Renjar was a teacher in the school where the victim girl was studying. Since 5 to 6 months prior to the incident, Kisan Renjar started residing at a different place. As Kisan Renjar was residing in the same locality as the accused prior to six months, hence, he knew the accused.
(b) The incident took place on 27.11.2009 at about 04.00 p.m.
At about 03.45 p.m., the accused went to the school of the victim girl. At that time, PW 10 Jayashri was teaching Maths to the 6th standard class in which the victim girl was studying. The accused told PW 10 Jayashri that his name is Nilesh Dhumal and he is a friend of maternal uncle of the victim girl. The accused informed PW 10 Jayashri that the victim girl's maternal uncle had called her and therefore he had come to the class room. PW 10 Jayashri then inquired with the victim girl whether she knew that person whereupon the victim girl answered in the affirmative. PW 10 Jayashri informed the accused that without the consent of the parents and the class teacher, she would not allow the victim girl to go out of the class room but the accused again repeated his Pg 4 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc earlier request and requested Jayashri to send the victim girl with him. The accused then said that he knew teacher PW 2 Mr. Renjar, therefore, PW 10 Jayashri took the victim girl and the accused to PW 10 Mr. Renjar who was also a teacher working in the said school. PW 10 Jayashri then inquired with PW 2 Mr. Renjar whether he knew the accused. Thereupon, Mr. Renjar informed that he is well acquainted with the accused and he told Jayashri to permit the victim girl to go with the accused.
Accordingly, the victim girl left the class room with the accused with her school bag.
(c) At about 05.00 p.m. as usual, PW 4 Pandit went to the school to pick up the victim girl, however, he did not see the victim girl anywhere, hence, he returned home. He found that in the house also, the victim girl was not there. Then, he went to his brother and apprised him about the said fact. They both then went to the house of the teacher. They inquired with him about the victim girl, thereupon, the teacher informed him that the accused had been to the school at 04.00 p.m. and stated that the Pg 5 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc victim girl was called by her maternal uncle and the accused took the victim girl with him. Due to this, PW 4 Pandit went to the house of the accused and inquired with the parents of the accused about the victim girl and the accused as the accused had taken away the victim girl. The parents of the accused informed PW 4 Pandit that the accused had not come with the victim girl. PW 4 Pandit and others searched for the accused, however, they could not trace him. Then, PW 4 Pandit went to the Police Station and lodged a complaint stating that the accused had kidnapped the victim girl. Thereafter, investigation commenced.
(d) The accused was arrested on the same day i.e 27.11.2009 at about 10.00 p.m. Eight injuries were found on the person of the accused at the time of his arrest. During interrogation, the accused volunteered to show the place where he had hidden the dead body of the victim girl. Accordingly, he led the police and panchas to Shirgaon Ghat and showed the place where he had concealed the dead body of the victim girl.
The dead body of the victim girl was hidden in the shrubs and dry Pg 6 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc leaves. The accused removed the leaves from the body and showed the dead body of the victim girl. The body was found totally naked. Blood was seen coming out from the private part as well as from the nostrils of the victim girl. Thereafter, the accused volunteered to point out the place where the school bag of the victim girl was kept by him. Accordingly, he led the police and panchas to the place where the school bag of the victim girl was kept in some bushes. Notebooks were seen in the bag. The name of the victim girl was appearing in all the notebooks in the bag.
Meanwhile, the dead body of the victim girl was sent for postmortem. PW 5 Dr. Patil found a number of injuries on the dead body of the victim girl. He also found injuries on the private part which according to him were indicative of forcible penetration. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.
3. Charge came to be framed against the accused under Sections 363, 376(2)(f) and 302 of IPC. His defence is that of Pg 7 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc 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, hence, these appeals.
4. 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 the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the accused kidnapped the victim girl, raped her and thereafter committed her murder.
5. There is no eye witness in the present case and the case is based entirely on circumstantial evidence. The circumstances against the accused are as under:-
i. Kidnapping and taking victim girl from school by the appellant and thereafter, she was found dead;
ii. Last seen;
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1. cri apeals 302-11 & 479-11.doc iii. The school bag of the victim girl was recovered at the instance of the accused;
iv. The dead body of the victim girl was discovered at the instance of the accused;
v. The accused was arrested within five hours of the incident. Eight injuries were found on the person of the accused at the time of his arrest;
vi. Medical evidence shows that rape had been committed on the victim girl and thereafter she was murdered.
6. So far as the circumstances of kidnapping of victim girl and last seen are concerned, the evidence of PW 2 Mr. Renjar, PW 10 Jayashri and PW 9 Somnath is material. PW 10 Jayashri was the teacher in the school where the victim girl was studying. At about 03.45 p.m. on 27.11.2009, PW 10 Jayashri was teaching Maths to the 6th standard class in which the victim girl was studying. The accused told PW 10 Jayashri that his name is Nilesh Dhumal and he is a friend of maternal uncle of the victim girl. The accused informed PW 10 Jayashri that the victim girl's maternal uncle had called her and therefore he had come to the class room. PW 10 Jayashri then inquired with the victim girl whether she knew that person whereupon the victim girl answered in the affirmative. PW Pg 9 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc 10 Jayashri informed the accused that without the consent of the parents and the class teacher, she would not allow the victim girl to go out of the class room but the accused again repeated his earlier request and requested Jayashri to send the victim girl with him. The accused then said that he knew the teacher PW 2 Mr. Renjar, therefore, PW 10 Jayashri took the victim girl and the accused to PW 2 Mr. Renjar who was also a teacher working in the said school. PW 10 Jayashri then inquired with PW 2 Mr. Renjar whether he knew the accused. Thereupon, Mr. Renjar informed that he is well acquainted with the accused and he told Jayashri to permit the victim girl to go with the accused. Accordingly, the victim girl left the class room with the accused with her school bag. PW 10 Jayashri has identified the accused as the same person who took away the victim girl.
7. The evidence of PW 10 Jayashri is supported by the evidence of PW 2 Mr. Renjar who was also a teacher in the school where the victim girl was studying. PW 2 Mr. Renjar has stated that he knew the accused as well as the victim girl and her family as they were Pg 10 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc his neighbours. He has stated that at the relevant time, the victim girl was studying in 6th Standard in the school where he was a teacher. The school hours were 10.00 a.m. to 05.00 p.m. The victim girl used to attend the school and her grandmother used to leave her in the school and in the evening, her maternal uncle PW 4 Pandit used to pick her up from the school. At about 04.00 p.m., PW 10 Jayashri brought the victim girl and the accused to his class.
PW 10 Jayashri inquired with him whether he knew the accused to which PW 2 Mr. Renjar answered in the affirmative. At that time, the accused informed him that the victim girl was called by her maternal uncle. As PW 2 Mr. Renjar was knowing the accused, he sent the victim girl along with him. At about 06.30 p.m., the maternal uncle of the victim girl came to his house and inquired about the victim girl. He then informed them that at about 04.00 p.m., the accused had taken the victim girl under the pretext that the victim girl was called by her maternal uncle. This witness has stated that on the day of the incident, the victim girl was wearing a school uniform. Her skirt was of blue colour and blouse was having stripes.
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1. cri apeals 302-11 & 479-11.doc
8. PW 9 Somnath has also deposed on the aspect of the last seen. PW 9 Somnath has stated that he knew Shailesh, the brother of the accused since about 5 to 6 years as they were both doing the same business and as he was his friend. Due to this, he also knew the accused who was the brother of Shailesh since last 5 to 6 years. PW 9 Somnath has further stated that on 27.11.2009, he was proceeding towards Wai from Wathar in a Sumo. When he was near Shirgaon Ghat, he noticed the accused proceeding to Shirgaon Ghat on Hero Honda motor cycle. One girl was sitting behind the accused on the motor cycle. The girl was wearing school dress of Wai Municipality School and there was school bag on the back of that girl. This witness has identified the accused in the Court as the same person who was going to Shirgaon Ghat on Hero Honda motor cycle with a girl wearing school dress of Wai Municipality School sitting behind him and there was school bag on the back of that girl. It is pertinent to note that PW 10 Jayashri has stated that the victim girl left the class room with her school bag. PW 2 Mr. Renjar has stated that when the victim girl was brought by PW 10 Jayashri to the class Pg 12 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc room, she was wearing school uniform i.e skirt and blouse. Her skirt was of blue colour and blouse was having stripes. He has identified the school uniform as well as the books which were in the handwriting of the victim girl. It is pertinent to note that the school bag in which the books were found was recovered at the instance of the accused.
9. PW 3 Sanjay is the panch witness in relation to recovery of school bag of the victim girl at the instance of the accused. He has stated that on 29.11.2009 at about 11.30 a.m., he was called to the Police Station. The accused volunteered to point out the place where the school bag of the victim girl was kept by him.
The entire information given by the accused was recorded and memorandum was prepared by the police which is at Exh. 17.
Thereafter, the police and panchas boarded a jeep and the vehicle proceeded as per the instructions given by the accused. The accused took them upto the Shirgaon Ghat. Then, the accused got down from the vehicle and from the bushes, the accused took out the school bag of the victim girl. Notebooks and other articles Pg 13 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc were found in the school bag. The name of the victim girl was appearing on the notebooks. The clothes of the victim girl were also found in the bag. It can be stated at this stage that PW 2 Mr. Renjar has identified the notebooks of the victim girl which were recovered at the instance of the accused. He has also identified the handwriting of the victim girl in the notebooks which he was familiar with as he used to check books of the victim girl. PW 2 Mr. Renjar has also identified the school uniform of the victim girl.
10. PW 2 Mr. Renjar has stated that when the victim girl was brought by PW 10 Jayashri, at that time, the victim girl was wearing school uniform. He has described the school uniform. It is pertinent to note that PW 9 Somnath had seen the accused on motor cycle at Shirgaon Ghat with a girl sitting behind him in the school uniform of Wai Municipality School and there was a school bag on the back of the girl. This school bag had been recovered at the instance of the accused from Shirgaon Ghat area.
11. The next circumstance against the accused and very Pg 14 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc important one is that the dead body of the victim girl was discovered at the instance of the accused. PW 7 panch witness Amit has deposed on this aspect. PW 7 Amit has stated that on 27.11.2009 i.e on the day of the incident itself at about 10.00 p.m., he was called to Wai Police Station. When he reached the Police Station, the accused volunteered to discover the dead body of the victim girl. Accordingly, he led the police and panchas to Shirgaon Ghat and showed the place where he had concealed the dead body of the victim girl. The dead body of the victim girl was hidden in the shrubs and dry leaves. The accused removed the leaves from the body and showed the dead body of the victim girl.
The body was found totally naked. Blood was seen coming out from the private part as well as from the nostrils of the victim girl.
12. Another circumstance which points out to the involvement of the accused in the crime is that soon after the incident when he was arrested, he was found having a number of injuries on his person which show that they were caused due to resistance being put up by the victim girl when she was sexually assaulted. The Pg 15 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc accused was arrested on 27.11.2009 at 10.00 p.m. At the time of arrest, a number of nail marks were seen on the person of the accused. PW 1 Vishvas is the panch witness to the arrest panchnama. He has specifically stated that nail marks were noticed on the person of the accused. PW 8 Dr. Bhosale examined the accused on 28.11.2009 at about 10.00 a.m. He found eight injuries on the person of the accused. According to Dr. Bhosale, all the injuries were within 24 hours and they were caused by nails. The injuries are as under:-
(1)Linear abrasion single over forehead right side. 5 cm in length transverse in direction, fresh red in colour, (2)Linear abrasion over left side nose, vertical direction 2 and half cm, in length, red in colour, (3)Linear abrasion over left side nose one and 1/2 cm. in length, red in colour, (4)Linear abrasion over left mid thigh oblique in direction 4 cm in length, fresh red in colour, (5)Linear abrasion over lateral 1/3rd right thigh, red in colour, oblique in direction 2 and half cm, in length, (6)Linear abrasion over the left knee, vertical in direction, red in colour, 3 cm in length, (7)Linear abrasion over lower 1/3rd left thigh, dorsal aspect, fresh red in colour, (8)Linear abrasion over right scapula, one and half cm in length, red in colour, oblique in direction.
Dr. Bhosale has clearly opined that the injuries seen on the Pg 16 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc person of the accused are possible due to the victim resisting rape.
13. The evidence of PW 4 Pandit, PW 10 Jayashri and PW 2 Renjar clearly shows that the accused has committed an offence of kidnapping of the victim girl. The case against the accused is that he has committed an offence of rape in relation to a minor girl. The evidence of PW 10 Jayashri who was the teacher of the victim girl shows that the victim girl was studying in 6th standard at the relevant time. The evidence of PW 4 Pandit who is the uncle of the victim girl also shows that she was studying in 6th standard at the time of the incident. The evidence of PW 6 Kantabai who is the head mistress of the school in which the victim girl was studying shows that the date of birth of the victim girl was 07.07.1998. Thus, this shows that the victim girl was below 12 years at the time of the incident. The evidence of PW 7 Amit who is the panch witness in relation to the accused pointing out the place where he had concealed the body of the victim girl shows that when the accused showed the dead body of the victim Pg 17 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc girl, it was found totally naked, blood was seen coming out from the private part of the victim girl. In addition to this, the evidence of PW 5 Dr. Patil also shows that rape was committed on the victim girl. Dr. Patil conducted the postmortem on the dead body of the victim girl. He saw the following external injuries on the dead body of the victim girl:-
(1)Bleeding through right nostril;
(2)Ecchymosis over anterior aspect of neck whole area;
(3)Abrasions over back left side in lower coastal area, vertically placed 15 x 5 cm., irregular shape;
(4)Bruise over right thigh medial aspect proximal 1/3, 6 x 4 cm;
(5)Abrasion over left hand dorsal aspect 5 x .5 cm;
(6)Abrasion over right elbow postero medial aspect 3 x 3 cm;
(7)Left ankle abrasion lateral aspect 3 x 3 cm;
(8)Face appears cynosed.
Dr. Patil also noticed external injury to genital organs i.e bleeding through vagina present. Abrasion over external genitalia present. Labia majora and peripheral part odematous. Bleeding through introital area. Hymen tear at 3 O'clock position present.
Posterior vaginal wall tear at 4 O'clock position and clotted blood present. According to Dr. Patil all these injuries were anti mortem.
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1. cri apeals 302-11 & 479-11.doc Blood clots were found present in trachea and larynx, Contused in anterior part in neck area. Blood clots were seen in Bucal cavity.
Blood clots were present in uterus. On the basis of such injuries, Dr. Patil opined that cause of death is due to strangulation.
According to Dr. Patil, external injury No. 2 as disclosed by him in Column No. 17 is possible by pressing with the hands. Injury Nos.
3 to 6 are possible while resisting rape. The injuries on private parts are indicative of forceful penetration. Thus, the evidence of Dr. Patil clearly shows that the victim girl was subjected to rape and thereafter she was strangulated to death. This also shows the motive for the accused to commit the crime. The evidence on record especially of PW 4 Pandit, PW 10 Jayashri and PW 6 Kantabai clearly shows that the age of the victim girl was below 12 years and the medical evidence shows that rape was committed on the victim girl. The evidence on record clearly establishes that the appellant committed rape on the victim girl and thereafter murdered her, hence, the offence under Section 376(2)(f) and 302 of IPC is clearly made out.
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14. On going through the record of this case, we find that there is sufficient evidence on record to connect the accused with the crime and the learned Sessions Judge has rightly convicted the appellant under Sections 302, 363 and 376(2)(f) of IPC.
15. Now coming to the argument advanced on behalf of the State in the matter of Criminal Appeal No. 479 of 2011 for enhancement of the sentence given to the accused, 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 committed rape on a young girl and thereafter murdered her, it calls only for the death penalty.
16. In reply, Mr. Apte submitted that this cannot be said to be a case which would fall under rarest of rare category wherein the sentence of death can be awarded. He placed reliance on five decisions of the Supreme Court wherein in similar cases, the Supreme Court commuted the death sentence to life imprisonment. The said decisions are:
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1. cri apeals 302-11 & 479-11.doc i. Mohammed Chaman Vs. State (N.C.T. of Delhi) 1; ii. Amit alias Ammu Vs. State of Maharashtra 2; iii. Surendra Pal Shivbalakpal Vs. State of Gujrat 3;
iv. The State of Maharashtra Vs. Mansingh 4;
v. Rahul alias Raosaheb Vs. State of Maharashtra 5 Mr. Apte brought to our notice that in all the above cases, the accused were convicted for committing rape on a minor girl and murdering her. Thus, they were similarly situated as the accused in the present case.
17. So far as decision in the case of Mohd. Chaman (supra) is concerned, the accused had committed offence under Section 376 and 302 of IPC and he was sentenced to death for the offence under Section 302 of IPC. In the said case, the accused-appellant had committed rape on a child aged about one and half year. In the process of committing rape, injuries were inflicted on the liver which resulted in death of the child. The Supreme Court held that the case did not fall within the rarest of rare category. Mr. Apte pointed out that in Mohd. Chaman (supra), though a one and half year old child was raped by the appellant who was about 30 1 (2007) 2 SCC 28 2 2003 ALL MR (Cri) 2327 (S.C.) : (2003) 8 S.C.C. 93 3 (2005) 3 S.C.C. 127 4 (2005) 3 S.C.C. 131 : [2005 ALL MR (Cri) 2041 (S.C.)] 5 (2005) 10 S.C.C. 323 Pg 21 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc years of age and he caused death of the child, yet the Supreme Court did not feel that this was a case which fell within the rarest of rare category and commuted the death sentence to life imprisonment.
18. In the case of Amit alias Ammu (supra), the accused was convicted of rape and murder of a minor girl of about 11-12 years of age. The conviction was based only on circumstance of `last seen' and recovery of articles such as match box used for burning the school bag and other articles. Mr. Apte drew our attention to the fact that though in the case of Amit (supra), the accused had committed rape on a girl who was about 11 to 12 years and thereafter, committed her murder, the Supreme Court reduced the death sentence to life imprisonment.
19. In the case of Surinder Pal Jain (supra), the accused had raped a minor girl and committed her murder. In said case, the accused committed rape on a minor girl and thereafter, threw her body into a pond. The Supreme Court reduced the death Pg 22 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc sentence to life imprisonment. The Supreme Court observed that "the appellant who was accused therein was impecunious and a migrant labourer and there being no evidence that he was involved in any other case previously and held that it could not be said that he would be a menace to society as no material has been placed on record to draw such a conclusion." In view of these facts, the Supreme Court held that this was not a case of rarest of rare and death penalty was not warranted, hence the sentence of death was commuted to life imprisonment.
20. Reliance was placed by Mr. Apte on a decision in State of Maharashtra Vs. Mansingh6. This was also a case of rape and murder. The Supreme Court felt that it was not a fit case to award death penalty. It was observed therein as under:
"Now the question which arises is as to whether the present case would come within the ambit of rarest of the rare cases. In the facts and circumstances of the case, we are of the view that the trial court was not justified in imposing extreme penalty of death against the respondent and ends of justice would be met in case the sentence of life imprisonment is awarded against the respondent."
21. In the case of Rahul alias Raosaheb (supra), the accused 6 (2005) 3 SCC 131 : [2005 ALL MR (Cri) 2041 (S.C.)] Pg 23 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc raped a girl aged about 4-1/2 years and caused her death by inflicting cut injuries on her neck. Mr. Apte pointed out that in the case of Rahul (supra), the accused enticed a girl aged about four and half years and took her to a deserted place. He then committed rape on her and later caused her death. After causing death, he kept the body in a gunny sack and put it in a pit. In the said case, the Supreme Court observed that although it is true that appellant committed a serious crime in ghastly manner but the accused was aged 24 years at the time of the crime, hence, considering the age of the appellant and other circumstances i.e. he had no previous criminal record, death sentence was commuted to life imprisonment. Mr. Apte submitted that the facts in the case of Rahul alias Raosaheb and the facts in the present case are similar. Here also the accused is aged 24 years and other facts are also similar. In identical circumstances, the Supreme Court thought it fit to commute the sentence of death to life imprisonment. He also pointed out that the accused has no previous criminal record. Mr. Apte reiterated that the facts of the present case are identical to the case of Rahul (supra), hence, he Pg 24 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc submitted that this case cannot be said to be a case which would fall under rarest of rare category wherein the sentence of death can be awarded.
22. The crime committed is undoubtedly serious and heinous and the conduct of the accused is reprehensible. It reveals a dirty and perverted mind of a human being who has no control over his carnal desires. However 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 inclined to accept that the case can be appropriately called one of the "rarest of rare cases" deserving death penalty. We are also not satisfied that the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances.
23. We do not think that this is a "rarest of rare case" in which Pg 25 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc death penalty should be imposed on the accused. The facts of the case of the appellant and as that of Rahul (supra) are almost identical. The accused was aged 24 years at the time of the occurrence and there is no evidence that the accused had been involved in any other criminal case previously. The accused is a poor person and living in impecunious circumstances which can be seen from the fact that as he could not afford a lawyer, he was provided one at State expense from the legal aid panel. No material is placed before us to draw a conclusion that he would be a menace to society in future. Hence, we do not think that the death penalty is warranted in this case.
24. Though we are not inclined to enhance the punishment, 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 @ Murali Manohar Mishra Vs State of Karnataka7. In the said case also the accused had been sentenced to death. The Supreme Court felt that it was not a fit 7 AIR 2008 SC 3040 : [2008 ALL SCR 2381] Pg 26 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc 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 substituted the death sentence by imprisonment for life and Pg 27 of 32 ::: Downloaded on - 06/01/2014 04:03:13 :::
1. cri apeals 302-11 & 479-11.doc directed the accused shall not be released from prison till the rest of his life.
25. We may also make useful reference to two decisions of the Supreme court i.e Ronny Vs State of Maharashtra8 and Ravindra Trimbak Chouthmal Vs State of Maharashtra 9 . 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 8 (1998) 3 SCC 625 : [1998 ALL MR (Cri) 898 (S.C) 9 (1996) 4 Supreme Court Cases 148 Pg 28 of 32 ::: Downloaded on - 06/01/2014 04:03:14 :::
1. cri apeals 302-11 & 479-11.doc and thereafter to cause the evidence of the crime to disappear, he had cut the body into pieces and thrown it in the creek.
26. In the case of The State of Maharashtra Vs. Kamlakar Tanaji Shinde10, 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 case of Sunil Anandrao Sawant Vs Government of Maharashtra 11 wherein this Court directed that the sentence of three years RI under Sections 307 shall run consecutively after serving the sentence for the offence of murder. In the case of State of Maharashtra Vs. Babu @ Ravindra Suresh Kamble 12, this court had convicted the accused under Sections 302 and 376(2)(f) of IPC.
For the offence under Section 302 of IPC, he was sentenced to death and for the offence under Section 376(2)(f) of IPC, he was sentenced to 10 years rigorous imprisonment and fine of Rs.
1000/-. In the said case, the death sentence under Section 302 10 2010 ALL MR (Cri) 3415 11 2010 ALL MR (CRI) 1723 12 2011 ALL MR (Cri) 1 Pg 29 of 32 ::: Downloaded on - 06/01/2014 04:03:14 :::
1. cri apeals 302-11 & 479-11.doc was commuted to life by this Court and the sentence under Section 376(2)(f) of 10 years rigorous imprisonment was directed to run consecutively after the sentence under Section 302 of IPC was undergone.
27. 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 circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases. Hence, we are not inclined to award death sentence and instead we direct that the sentence of imprisonment under Section 376 (2)(f) shall run consecutively after the sentence of life imprisonment under Section 302 has run its course. Having regard to the totality of the circumstances, we pass the following order:
ORDER i. The appeal filed by the accused is dismissed and the appeal filed by the State is partly allowed.
ii. The conviction and sentence of imprisonment of the Pg 30 of 32 ::: Downloaded on - 06/01/2014 04:03:14 :::
1. cri apeals 302-11 & 479-11.doc accused under Sections 302, 376(2)(f) and 363 of IPC is maintained.
iii. The sentence of imprisonment under Section 376(2)(f) of IPC shall run after serving the life sentence under Section 302 of IPC.
iv. The sentence of imprisonment under Section 363 of IPC shall run concurrently with above sentences of imprisonment.
28. Office to communicate this order to the concerned prison Authorities and to the accused who is in jail.
29. At this stage, we must record our appreciation for Advocate Mr. Abhaykumar Apte who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the accused in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at ` 4500.
[MR. V.L. ACHLIYA, J ] [SMT. V.K. TAHILRAMANI, J ] Pg 31 of 32 ::: Downloaded on - 06/01/2014 04:03:14 :::
1. cri apeals 302-11 & 479-11.doc jfoanz vkacsjdj Pg 32 of 32 ::: Downloaded on - 06/01/2014 04:03:14 :::