The State Of Maharashtra, Through ... vs Mr. Rahul Alias Raosaheb Dashrath ...
2003 Latest Caselaw 1152 Bom

JUDGMENT

A.S. Aguiar, J.

1. Both the matters arise out of the same facts and a common impugned judgment. We, therefore, dispose of both the matters by one judgment.

2. The matter arises before us for confirmation of the sentence of death imposed upon the Accused for committing the murder of one "Guddu" (victim girl) and for hearing and disposing of the appeal of the Accused against his conviction under Section 302 of the Indian Penal Code and the sentence of death as well as against the orders of conviction and sentence under Section 363 of the Indian Penal Code for kidnapping the victim girl, for the offence of rape of the minor victim girl under Section 376(2)(f) of the Indian Penal Code, for having carnal intercourse against the order of nature under Section 377 of the Indian Penal Code, and for causing disappearance of the evidence of offence under Section 201 of the Indian Penal Code.

3. Briefly stated, it is the Prosecution case that on the evening of 24-11-1999, the victim girl Guddu was playing outside her house while her mother was cooking the evening meal. After completing her work, she found that Guddu was missing. A search was launched by the mother and one Rohana wife of and uncle of the victim girl. Akbar Shaikh, the father of the victim girl returned home from work at 8 P.M. and on being informed of the missing of Guddu, he along with his brother went in search of Guddu in the Zopadpatti area, but to no avail; Thereupon Akbar Shaikh, the father of the victim girl, lodged a missing report (Exhibit 27).

4. The next day morning, i.e. on 25.11.1999, at about 10-15 A. M., Ramesh Patole (P. W. 4), a social worker, who was at Ambedkar High School, Yeravada, was informed by a boy, who had gone to the nearby stream to ease himself, that he has seen a dead body in a gunny bag lying in a pit near the stream. Upon verifying this fact, Ramesh Patole informed the local Police Chowky, Ramwadi on phone. Police Sub-Inspector Malekar (P.W. 22), on receiving the call, immediately informed the Police Station at Yervada on phone and thereafter went to the spot where he found the dead body of the child in a gunny bag. On receiving information, Police Inspector Madhukar Mote (P. W. 23) of the Yervada Police Station and the staff immediately left for the spot where the dead body of the child was found. Since no one identified the dead body, he directed P.S.I. Malekar to an Inquest Panchanama on the dead body at the spot. Police Inspector Mote (P. W. 23) returned to the Police Station and on verifying the record of missing persons found the missing Report of Guddu. Accordingly, Akbar Shaikh (P. W. 1), the father of the victim girl, was informed.

5. On instructions of Police Sub-inspector Malekar, a photographer was called and the dead body in the plastic bag and gunny bag was photographed. On removing the gunny bag and the plastic bag, it was found that the legs and hands of the dead body were tied with a rope. An Inquest Panchanama was prepared of the dead body. Out injuries were found on the neck and a bleeding injury on the right side of the cheek. Muscle was noticed protruding from the private parts of the deceased child. Zahir Shaikh, the brother of Akbar Shaikh, identified the dead body as that of his niece Guddu. The dead body was sent for post-mortem examination to the Sasoon Hospital. Police Sub-inspector Malekar filed a complaint (Exhibit 76), which he sent to the Yervada Police Station along with his report (Exhibit 77). A Panchanama was prepared of the spot where the dead body was found and the articles seized thereunder. On the basis of the complaint, an offence was registered as C. R. No. 377 of 1999 under Section 363, 302 and 201 of the Indian Penal Code.

6. On 25.11.1999, Dr. Patil (P.W.17) and Dr. Wase did the autopsy on the dead body and issued post-mortem notes (Exhibit 64) showing the cause of death as shock due to cut-throat injury with the evidence of vaginal and anal injuries. From the medical certificate issued by the Medical Officer (P.W. 17), it is found that the victim girl Guddu was violently molested, ravished, raped and sodomized and murdered by her throat being cut with a knife.

7. On 26.11.1999, the Accused was apprehended by the Police from the house of one Shobha Andrak (P.W.19), a cousin sister of the Accused, where the Accused had gone to seek shelter. On personal search of the Accused under a Panchanama (Exhibit 58), a key- chain with two keys were recovered from his possession. The Accused made a discovery statement and led the Police and the Panchas to his house and opened the lock by obtaining the key from Police Inspector Mote and showed the Police the scene of offence. Partly folded guilt was found on the cot. Two small bangles of a girl, a chocolate wrapper and chocolate unwrapped were also found on the guilt. The bed was stained with blood. The Accused also showed the clothes which he was wearing at the time of the commission of the crime and which were kept near the curtain in his house. All the aforesaid articles were seized under Panchanama (Exhibit 61).

8. On 28.11.1999, the Accused - Rahul was referred for medical examination. Samples of pubic hair, blood and semen were taken and sent to the Chemical Analyser, Pune. On 29.11.1999, pursuant to the disclosure statement made by the Accused Rahul, the knife (Article 27) hidden under a big stone was recovered. Thereafter statements of witnesses were recorded and, on completion of the investigation, Police Inspector Madhukar Mote (P.W. 23) submitted the charge-sheet against the Accused before the Court of the Judicial Magistrate, First Class, Court Room No. 5, Pune. The case was thereafter committed to the Court of Session. The Accused was tried before the Court of Session and by judgment and order dated 31.8.2002, the Accused was convicted of the aforesaid offences and sentenced to death.

9. The case of the Prosecution rests on circumstantial evidence. The following are the circumstances:

1. Motive.

2. Last seen together.

3. Medical evidence.

4. Conduct of the accused.

5. Extrajudicial confession.

6. Discovery of scene of offence.

7. Blood-stained articles and other articles found in the house of accused.

8. Recovery of weapon and bicycle at the instance of accused.

9. False defence.

10. C. A. reports.

10. On the basis of the evidence led and after hearing the arguments, the learned Additional Sessions Judge, Pune framed points for consideration and answered all of them in the affirmative after a fairly detailed discussion and evaluation of the evidence on record.

11. In support of its case, the Prosecution has examined witnesses who had last seen the Accused with the victim girl before the commission of the crime, namely, (1) P.W.2 Narayanlal Choudhary, owner of the grocery shop from where the Accused Rahul purchased chocolates for the victim girl Guddu, (2) Gangubai Sakharam Gorakh (P.W. 3) from whom the Accused obtained the keys of his house and who claims to have seen the Accused proceeding to his house along with Guddu. Other witnesses who had seen the Accused on the night of the incident are Shobha Jadhav (P.W. 4), who saw the Accused washing the floor of his house at night; Mansing Rajput (P.W. 5) who saw the Accused carrying a stuffed gunny bag on his bicycle the same evening.

12. One Wilson Raghuvilu (P. W. 6) had met the Accused on the next day on learning of the discovery of the dead body expressed his desire to the Accused to go and see the dead body. The Accused informed him that he would be returning back after fetching his bicycle and accompany P.W. 6 to the place where the dead body was kept. However, the Accused failed to return.

13. Another very important witness examined on behalf of the Prosecution is Shobha Murlidhar (P. W. 19), cousin sister of the Accused at whose house the Accused sought shelter informing her that he had committed a crime. The Prosecution has relied on the evidence of P. W. 19 as proving the Extra Judicial Confession made by the Accused admitting his guilt.

14. The Accused has challenged the judgment and order of conviction claiming that the witnesses are not telling the truth, that their evidence does not support the Prosecution case and pointing out various discrepancies and shortcomings in their evidence. It is also the contention of the defence that the Prosecution has failed to prove the chain of circumstances, and that in view of the missing links in the evidence proving the Prosecution story, the same cannot be accepted and, therefore, the Accused must be given the benefit of doubt and acquitted.

15. Furthermore, the Defence has examined one witness Mangal Navnath Chawan (D. W. 1), real sister of the Accused, who claims that on the evening of 24.11.1999, at about 6 P. M., she had gone to the house of her brother Rahul at Gandhi Nagar for preparing his meal. At that time, her brother Rahul- the Accused was in the house while she was preparing the meal. She claims to have left the house after taking the meals with her brother, the Accused, and left the house and went back to her own house only after 9-00 P. M.

16. In connection with the circumstances of the Accused and the deceased being last seen together, attention of this Court is drawn to the evidence of Akbar Shaikh (P. W. 1), the father of the deceased girl, who in his examination-in-chief in paragraph (9) had stated that he had made enquiry at the shop of Narayanlal Choudhary told him that he did not know anything about Guddu. However, Narayanlal Choudhary (P.W. 2) in paragraph (2) of his examination-in-chief has stated as under:

"I saw Guddu the daughter of Akhar (father) on 24-11-1999 for the last time At about 6.30 p.m. on that day i.e. 24.11.1999 the accused had been to my shop with Guddu for purchasing chocolates. He purchased chocolates for Guddu. I gave him 5 chocolates. I asked Rs. 3/= from him i.e. Rs. 2.25 P. price of the chocolate and 75 ps. balance due from the accused. He said that he will give afterwards. Proceeded with Guddu toward his house. When the accused came to my shop and when I saw him, his eyes were red and it appeared that he had consumed liquor. On that night I closed my shop at 9.30 P. M."

17. The learned Advocate for the Accused, referring to the evidence of Akbar Shaikh (P.W.1), contended that if Narayanlal Choudhary (P.W. 2) had seen the Accused along with Guddu that evening, he would surely have informed Akbar Shaikh when Akbar Shaikh and his brother, who were searching Guddu on the night of 24.11.1999, enquired with him. It is pointed out that Akbar Shaikh (P.W.1) has admitted in his cross-examination that he and his brother were searching for Guddu and while making search they also enquired with Narayanlal Choudhari, but Narayanlal Choudhary did not tell them anything about Guddu. Further Narayanlal Choudhary in his cross-examination has denied that on 24.11.1999 Akbar Shaikh (P.W. 1) had been to his shop and made enquiry with him about Guddu. It is the contention of the learned Advocate for the Accused that the evidence of Narayanlal Choudhary (P. W. 2), who stated that the Accused Rahul had come to his shop along with Guddu and had purchased Chocolates for her cannot be relied upon as his evidence is an afterthought. Clearly, there is no substance in this contention. It is possible that on the night of 24.11.1999 when Akbar Shaikh (P. W. 1) was making enquiry about his daughter Guddu, Narayanlal Choudhari (P. W. 2) may have not been aware of the fact that Guddu was missing. Therefore, the mere fact of the Accused Rahul having come to his shop and bought chocolates for Guddu may have not struck him as unusual. It was only on the next day when the news of the dead body of Guddu having been found became known to him that it must have struck Narayanlal Choudhari (P. W. 2) that he had last seen Guddu in the company of Rahul, the Accused, and, therefore, he had stated to the Police that he had seen Guddu along with the Accused at about 6-30 P. M. on the previous day, i.e., on 24.11.1999, and that Rahul had purchased chocolates for Guddu. It is also possible that Narayanlal Choudhary might have remembered that Rahul had come to his shop with Guddu and purchased chocolates, but he did not think it necessary or advisable to inform Akbar Shaikh (P. W. 1). However, on the next day when he got the news of the dead body of Guddu having been found that it became necessary for him to disclose this information to the Police, and probably more so, because he had also come to know that Rahul was also missing from the neighbourhood. There is nothing inherently contradictory in the evidence of Akbar Shaikh (P. W. 1), the father of the deceased Guddu, and Narayanlal Choudhary (P. W. 2) so as to disbelieve the evidence of Narayanlal Choudhary (P. W. 2).

18. A further infirmity referred to by the learned Advocate for the Accused in the evidence of Narayanlal Choudhary (P. W. 2) in his examination-in-chief is his statement that after purchasing the chocolates, Rahul proceeded with Guddu towards his house. Much time and effort has been spent by the Defence Advocate in quizzing this witness to demonstrate that it would not have been possible for Narayanlal Choudhary (P. W. 2) to have seen Rahul proceeding with Guddu to his house after buying chocolates from the shop of Narayanlal Choudhary. It must be noted that Narayanlal Choudhary (P. W. 2) only stated that he saw Rahul proceeding towards his house accompanied by Guddu. He did not say that he saw the Accused entering his house and taking Guddu alongwith him. He might have noticed the general direction in which Rahul was proceeding with Guddu, and assumed that Rahul was going to his house. He had no particular reason to note that Rahul was taking Guddu along with him to his house. So far as these two witnesses who have been examined in support of the circumstance of the Accused and the deceased being last seen together is concerned, it must be pointed that there is nothing contradictory in the evidence of Akbar Shaikh (P. W. 1) and Narayanlal Choudhary (P. W. 2) as in his cross-examination Narayanlal Choudhary (P. W. 2) has stated that on 24.11.1999 Akbar Shaikh had not been to his shop to enquire whether he had seen Guddu. Akbar Shaikh (P.W.1) has, in his examination in chief, stated that he had gone alongwith his brother in search of Guddu in the Zopadpatti, but Guddu was not found. In the cross-examination Akbar Shaikh (P. W. 1) has stated that when enquiry was made with Narayanlal Choudhary (P. W. 2), he had not disclosed anything about Guddu. On the other hand, Narayanlal Choudhary (P.W. 2) has in his cross-examination stated that on 24.11.1999, Akbar Shaikh (P.W.1) had not been to his shop to enquire about Guddu. A suggestion was made by the Defence to Narayanlal Choudhary (P. W. 2) that Akbar Shaikh (P. W. 1) had been to his shop on 24.11.1993. The suggestion cannot replace the assertion of Narayanlal Choudhary (P. W. 2) that Akbar Shaikh (P. W. 1) had not been to his shop. What Akbar Shaikh had also stated in his cross-examination is that when enquiry was made with Narayanlal Choudhary (P. W. 2), he had disclosed nothing about Guddu. Akbar Shaikh has not said that he personally made enquiry with (P.W.2) Narayanlal Choudhary. The enquiry need not have been made only by Akbar Shaikh (P. W. 1), but could have been made by anyone else including the brother of Akbar Shaikh who had accompanied him in search of Guddu.

19. So far as Gangubai Sakharam Gorakh (P. W. 3) is concerned, it is pointed out that Gangubai Gorakh (P. W. 3) in her examination in chief has stated that she saw Guddu with the Accused when he asked her for the keys. In her cross-examination she has admitted that she had not disclosed in her statement to the Police that Guddu was with the Accused. Furthermore, in her examination-in-chief, she stated that the Accused proceeded towards his house. The learned Advocate for the Accused has contended that the evidence of Gangubai Gorakh (P. W. 3) must be disbelieved, because if she had, in fact, seen Guddu with the Accused, she would have informed the family members of Guddu immediately the same evening when the news of Guddu's missing had spread in the entire Gandhi Nagar Area and the father, the uncle and others were in search of Guddu.

20. The further contention of the learned Advocate for the Defence that Gangubai Sakharam Gorakh (P. W. 3) has to be disbelieved because if she had seen Guddu with the Accused on that evening prior to the incident, she would have informed the family members of Akbar Shaikh (P.W.1) immediately when the news about Guddu's missing had spread in the entire Gandhi Nagar Area. Failure on the part of Narayanlal Choudhary (P. W. 2) to communicate and inform the family members of Guddu that she had last seen Guddu with the Accused Rahul cannot be a factor to disbelieve her as it is possible that Gangubai Gorakh (P. W. 3) herself might not have been at home that evening and, therefore, not learnt about the missing of Guddu. Nothing has been brought on record to show that (P. W. 3) was in the house after 6-30 P. M. after the family members of Guddu started searching for her. It is also possible that Gangubai Gorakh (P. W. 3) might not have suspected the Accused Rahul being in any way responsible for the missing of Guddu. After all he was also a neighbour. Hence the mere silence on the part of Gangubai Gorakh (P.W. 3) cannot be the reason for disbelieving her evidence on oath that she had seen Guddu with the Accused at about 6-30 P. M. when the Accused Rahul came to collect the keys of his house from her. The contention of the learned Advocate for the Accused is that although the news of Guddu's missing had spread in the locality on the night of 24.11.1999, yet Gangubai Gorakh (P. W. 3) did not inform Akbar Shaikh (P. W. 1) or any of his relatives that she had seen Guddu with the Accused Rahul and therefore her testimony must not be believed. There is no substance in this submission for the simple reasons that there is nothing on record to show that Gangubai Gorakh (P. W. 3) was at home that evening after she had handed over the keys to Rahul, nor is there anything to show that she was aware of the missing of Guddu on the night of 24.11.1999.

21. Thus, the so-called infirmity in the evidence of Narayanlal Choudhary (P. W. 2) and Gangubai Sakharam Gorakh (P. W. 3) does not damage the Prosecution case of the Accused having been last seen with the deceased Guddu prior to the commission of offence.

22. The next incriminating circumstances against the Accused is his unnatural and suspicious conduct as deposed to by Shobha Jadhav (P. W. 4) and Mansing Rajput (P. W. 5). Shobha Jadhav, who is a resident of Gandhi Nagar and a neighbour of the Accused has deposed that on 24.11.1999 when she as washing clothes at the tap on the road in front of her house, she saw the Accused Rahul washing the floor of his house. He was cleaning the floor inside the house. She further stated that at that time the Accused was alone in the house as his parents had gone to the village on account of death of some relative. She further stated that she enquired with the Accused as to why he was doing the household work when none of his family members were present, the Accused replied that he was cleaning the floor "just like that". It is pointed out that in cross-examination, (P. W. 4) has stated that the door of the house of the Accused is not exactly in front of the tap and that if she stands outside her house, she is not in a position to see inner portion of the house of the Accused.It is, thus, contended by the learned Advocate for the Accused that the admission on the part of Shobha Jadhav (P. W. 4) shows that she was deliberately making a false statement that she saw the Accused cleaning the floor of the house from the place at the water tap outside her house. Clearly, there is no merit in the submission of the learned Advocate for the Accused as the same assumes that Shobha Jadhav (P. W. 4) was glued to one position at the water tap and did not move away from it to a position from where she could see the Accused in his house. There is no reason to assume that Shobha Jadhav (P. W. 4) stood transfixed at the water tap in front of her house while washing clothes. She could have moved around to a point from where she could have seen the Accused in his house. What is to be noted from the testimony of (P. W. 4) is the conduct of the Accused of doing some unusual thing, namely, cleaning floor at his house at an odd hour when none of his family members were present. The unnatural conduct on the part of the Accused creates a spicion and seems to confirm the Prosecution case that the Accused was cleaning the floor on account of the blood stains on the floor of the house after he had murdered the victim girl. Furthermore, there is no reason why Shobha Jadhav (P. W. 4), who is a neighbour of the Accused, would falsely implicate him.

23. The suspicious conduct of the Accused can also be seen from the evidence of Mansing Rajput (P.W.5), who has stated that at about 8 or 8-15 P.M. on the same evening he was standing near Durgamata Mandir along with one Jaffar Shaikh, his friend, and he saw the Accused carrying something on his bicycle. There was a gunny bag tied on the carrier of the bicycle and he was been proceeding towards the Nagar Road. Again, here the learned Advocate for the Accused has pointed out some minor discrepancy in the evidence of Mansing Rajput (P.W. 5), namely, that he had not stated before the Police that he was standing near the Durgamata Mandir, but that he informed the Police that he was standing in front of his house along with one Abdul Gafoor Khan. It is further pointed out by the learned Advocate for the Accused that the distance between the house of the Accused and that of the witness was more than 300 feet and that from the house of Mansing Rajput (P.W. 5), it would not be possible to see the lane in front of the house of the Accused. Despite the discrepancies in the evidence, which are minor, the same do not discredit the witness so as to be dubbed as a got up witness. The evidence of (P.W. 5) as a whole has a ring of truth about it and, therefore, there is no reason to discard his evidence, for if he were a got up witness, he would have been tutored to give evidence as per the say of the Police. The minor discrepancies/contradictions, in fact, go to prove that the witness is not tutored and, therefore, there is no reason to discard his testimony of having seen the Accused at the relevant time carrying a gunny bag on his bicycle.

24. Again, the evidence of Wilson Raghuvilu (P.W.6), if believed, is an indication of the unnatural and suspicious behaviour or conduct of the Accused. Wilson Raghuvilu has stated that on the night of 24.11.1999, he learnt that the daughter of Akbar Shaikh (P.W.1) was missing and on the next day when the Accused met him one lady Sayeeda Appa told them that a dead body was found. On Wilson Raghuvilu (P.W.6) requesting the Accused to accompany him to see the dead body, the Accused told him that he would go and fetch his bicycle, but never returned. Subsequently, Wilson Raghuvilu (P.W.6) learnt from Sayeeda Appa that the dead body was of Guddu, daughter of Akbar Shaikh (P.W.1).

25. It is contended by the learned Advocate for the Accused that Wilson Raghuvilu (P.W. 6) is also a got up witness as Wilson Raghuvilu did not go to the house of the Accused to enquire as to why he had not come to meet him to go and see the dead body and hence no adverse inference can be drawn from the conduct of the Accused. Even if no adverse inference can be drawn, nevertheless, the behaviour of the Accused in not returning is indicative of an unnatural behaviour and would, in conjunction with other circumstances be material in deciding the guilt of the Accused.

26. It is the case of the Prosecution that the Accused Rahul enticed the victim girl Guddu by purchasing chocolates for her from the shop of Narayanlal Choudhary (P.W. 2). He further enticed her into his house where he was staying alone on that day since his parents had gone to Village Bakhtakli where a close relative had expired after committing suicide. After enticing the girl to the house, the Accused Rahul violently molested, ravished, and sodomised her and cut her throat and caused other injuries to her resulting in her death. Thereafter he tied the legs and hands of Guddu with a rope and stuffed the body into a plastic bag which he put into the gunny sack and then took the body in the sack on his bicycle to a place at some distance and dumped the body in a ditch. These facts are substantiated by eh recoveries made by the Police at the instance of the Accused. The articles in the house where the offence is alleged to have taken place and seized under the Panchanama (Exhibit 61) are chocolate, chocolate wrappers, plastic bangles of small female child, plastic papers, rope, clothes of the Accused and quilt with blood stains. Pursuant to his disclosure statement, the Accused took the Police to his house and opened the lock on the door of his house by taking the keys from the Police Inspector More (P.W. 23), who had seized the key from the Accused after his arrest and personal search. In the room, the Police and the Panchas who had accompanied them found a bedding partly folded on the cot, washed and wet clothes of the Accused having blood stains hung for drying and other articles like chocolates, chocolate covers, plastic bangles, etc.

27. The Accused in his statement under Section 313 of the Code of Criminal Procedure, 1973 has not been able to explain as to how the plastic bangles and chocolates came to be found on his cot. The learned Advocate for the Accused has challenged the said recovery contending that the recoveries were of no evidential value since the Police had earlier taken possession of the house of the Accused. It is pointed out that two Police Constables were deputed near the house of the Accused to keep watch since the Accused was found missing in the village, but this by itself does not mean that the Police had entered the house since it must be remembered that the house was locked and the key of the house was with the Accused. Therefore, the Police could not have entered the house without breaking open the lock which is not the case of the defence. Furthermore, after the disclosure statement made by the Accused, the Accused took the key from Police Inspector Mote (P.W.23) and opened the lock of his house. The keys were seized earlier from the Accused under Arrest Panchanama (Exhibit 58). Thus, there is no question of the Police having entered the house of the Accused or seen or planted the said articles prior to the discovery panchanama and seizure of the articles in the house under Exhibit 61.

28. Before this Court, the learned Advocate for the Accused had pointed out that the parents of the Accused Rahul had returned to their house on the next day, i.e., on 25.11.1999, and on their return they were detained by the Police till the Accused was arrested 27.11.1999. It is, therefore, contended that the Police had entered the house of the Accused for the purpose of interrogating the parents of the Accused. He also contended that since the parents had returned on 25.11.1999, it is difficult to accept that the articles seized under the Panchanama (Exhibit 61) would have been found lying in the room as left by the Accused prior to his departure from the room.

29. It is further pointed out that if the parents of the Accused were in the house, then their presence would have been shown in the seizure panchanama. All this is mere guess-work. The moment the parents returned to their house, they were taken for interrogation by the constables to the Police Station without even allowing them to enter the house. Since it is an admitted position that the parents of the Accused were detained at the Police Station till his arrest, it is clear that the parents of the Accused had no opportunity to enter the house without the Police. It is also possible that if the parents had entered the house, seeing the articles scattered in the house, they might have felt it best not to disturb the same as they were not aware of what actually had taken place in the house. There were no blood-stains which they could have seen as it is on record that the Accused had washed the flooring of the house and had also washed his clothes which were blood-stained. Therefore, there is no substance in the challenge by the Defence to the recoveries of the incriminating articles under the Panchanama (Exhibit 61).

30. The learned Advocate for the Accused has also pointed out the discrepancy in the timing of the memorandum of disclosure statement (Exhibit 60) and starting of seizure panchanama under Exhibit (61). It is pointed out that the house of the Accused is at a considerable distance from the Police Station where the Accused made the disclosure statement. The time of the memorandum of disclosure (Exhibit 60) is shown as 3-45 P.M. and the time of starting the seizure panchanama (Exhibit 61) is also shown as 3-45 P.M. Hence it is contended that both these panchanama are false and cannot be relied upon.

31. Quite clearly, there is an error in recording the time of the starting of the seizure panchanama as it would have taken at least five minutes to reach the house of the Accused from the Police Station. However, this by itself is not fatal to the Prosecution case as the Police might have mistakenly recorded the starting time of the seizure panchanama or the same might have been wrongly shown by the scribe, but that does not detract from the genuineness of the contents of the panchanama as the same has been proved by the evidence of Police Officers recording the Panchanamas as well as the Panchas who accompanied the Police.

32. Coming to the weapon of assault (Suri Article 27), the same was recovered under Panchanama Exhibits 70 and 71 under Section 27 of the Evidence Act. The Article was removed by the Accused from underneath a big stone in front of Wadia Farm on the Pune - Nagar Road. It is the contention of the Defence that the discovery of the weapon from an open place which is accessible to all is not admissible in evidence and has supported his contention by relying upon the judgment of Abdul Sattar v. Union Territory, Chandigarh, . However, the mere fact that the knife (Article 27) was recovered from a road does not destroy the evidential value of the recovery as the knife was hidden underneath a stone. This fact was known only to the Accused and no one else and, therefore, the recovery of the knife (Article 27) at the instance of the Accused cannot be said to be from the open place although it is accessible to all since no one else had the knowledge of the knife hidden beneath the stone. This is made abundantly clear by the Supreme Court in the case of State of Himachal Pradesh v. Jeet Singh (1999 ALL M.R.CR. 806 (Supreme Court) Furthermore, it cannot be said that there was any delay in the discovery of the weapon as the same was done within two days from the date of arrest of the Accused who was arrested on 27.11.1999. The discovery was made on 29.11.1999.

33. The Defence has also challenged the Prosecution case that the Accused cut the throat of Guddu with the knife (Article 27) by relying on a certain cut marks in the medical evidence pertaining to the injuries which he contends are inconsistent with the nature of the weapon (Article 27) allegedly used for cutting the throat of the victim girl. It is pointed out by the learned Advocate for the Defence that Dr. Prashant Patil (P.W. 17) was admitted in paragraph (14) of his evidence that it is correct that when the margin of injuries are clean cut, then the weapon by which injuries are caused must have sharp edge. If edge of weapon is not sharp, then the margin of injury are irregular. Dr. Patil has admitted that injury No. 4 in column 17, i.e., cut throat injury is clean cut injury. It is further pointed out that P.W. 17 has stated on seeing the article 27 that the central portion of the knife is sharp but irregular; whereas the forward portion of the weapon is sharp and it is correct that the tip of the Article 27 is not sharp. Placing reliance on the description of the knife, it is the contention of the Defence that injury No. 4 which is clean cut sharp injury could not have been caused by the knife Article 27. However, it must be pointed out that P.W. 17 is an expert witness and in his examination in chief he has clearly stated that injury No. 4, i.e., cut throat injury is possible by the weapon Article 27 which is produced before the Court. In the face of this clear cut opinion given by Dr. Prashant Patil (P.W.17), there is no scope left for the defence to point out that the injuries were not possible with the knife Article 27. Even if the knife had irregular edges, much will depend on how the knife was used while cutting the throat. There is no reason to disbelieve the evidence of Dr. Prashant Patil (P.W. 17).

34. Coming back to the Prosecution case of recovery of the incriminating articles, the bicycle (Article 28) on which the Accused was seen carrying the gunny sack by witness Mansing Rajput (P.W. 5), and proceeding towards Nagar Road has been recovered under seizure panchanama (Exhibit 74). Pursuant to the memorandum (Exhibit 73), the Accused took the Police and the Panchas to Wadarwadi locality and showed them the bicycle which was kept by the side of the hut of his sister Mangal Chavan (D.W. 1). The Police seized the bicycle under seizure panchanama (Exhibit 74). The bicycle had bloodstains of blood group "AB" being the blood group of the deceased Guddu as seen from the Chemical Analyser's Report (Exhibit 17). The carrier of the bicycle was disconnected from the bicycle and seized separately under Panchanama Exhibit 50).

35. Again the seizure of the bicycle under panchanama is challenged as it is contended that the same was done from an open place adjacent to the hug belonging to the sister of the Accused, and, therefore the recovery of the bicycle is not admissible evidence. Furthermore, it is contended by the Defence that the Police were aware about the place from where the bicycle was seized since the Police had visited the house of the sister of the Accused before the recovery of the bicycle on 4.12.1999. A mere visit of the Police to the house of the Accused does not make the recovery of the bicycle inadmissible as it is not the case of defence that the Police when they visited the house of the sister of the Accused had seen the bicycle kept there or even if they had seen it, they were aware that this was the bicycle which was used by the Accused for transporting the dead body of the deceased Guddu to the place where it was dumped.

36. The panchanama of the seizure of the bicycle is also challenged on the ground of discrepancies in the time of the memorandum and the time of starting the seizure panchanama. It is pointed out that the place from where the bicycle was seized under Panchanama (Exhibit 74) is at a considerable distance from the Police Station where the memorandum of panchanama (Exhibit 73) was prepared. Exhibit 73 indicates that it was complected on 4.12.1999 at 3-45 P.M.; whereas the seizure panchanama also shows that it started at 3-45 P.M. There is an obvious error on the part of the Police in recording the timing, but this by itself does not destroy the evidential value of the recovery unless it can be shown that the Panchas were not truthful and there some reason to disbelieve the Panchas. Thus, except for some minor discrepancies in the timing and other trivial circumstances, it cannot be said that the recovery of the incriminating articles from the house of the Accused under the seizure panchanama (Exhibit-61) and of the knife (Article 27) from underneath a stone near "Khusboo Nursery" under the seizure panchanama (Exhibit-71) and the bicycle from the house of the sister of the Accused under the panchanama (Exhibit-74) cannot be accepted. These recoveries substantiate the Prosecution story that the offence was committed by the Accused in his house after which he took the body in a gunny sack on his bicycle and dumped it at a spot far from his house and that murder of the deceased girl was committed by him by the knife (Article 27). The said recoveries, in fact, go to prove the Prosecution case beyond doubt.

37. Coming to the medical evidence, it must at the outset be stated that the said medical evidence proves beyond the shadow of doubt that the deceased Guddu was raped, violently molested, ravished. Sodomised and brutally murdered. The evidence of Dr. Prashant Narayan Patil (P.W. 17) corroborates the post-mortem notes made by him (Exhibit 64) that the cause of the death was shock due to a cut throat injury and vaginal and anal injuries. The post-mortem conducted by Dr. Prashant Patil on the dead body of Guddu, aged 4 1/2 years, discloses the following external injuries.

i) Contusion fresh on right frontal region 1 cm. above the right eyebrow 1x1 cm.

ii) Semi circular fresh contused abrasion on lateral aspect of the right angle of mouth, 5x1.5 c.m. with two lacerations 0.5 x 2 cms. on each on lower lip.

iii) Semi circular fresh contused abrasion 4x2 cms. on the right cheek with two lacerations 0.5 x 2 cms. each.

iv) Cut throat injury with clean cut margin transverse below the level of thyroid cartilage, showing division of trachea oesophagus and bilateral great vessel (Carotid and Jugular veins) 15x1.5 cm.

v) Fresh abrasion on the right side of neck 2 cms. above and parallel to injury No. 4, 4.4 x 1 c.m.

vi) Fresh abrasion on the right side of the neck lateral to injury No. 4, 2x1 c.m.

vii) Vaginal and perineal tears present at 5.6 and 7 "O" Clock position, 1/2 to 1 cm.

viii) Anus shows laceration at 6, 7 and 8 "O" Clock position, 5 cms.

ix) Posterior vaginal wall shows ceration near posterior fornix 3x1 cm.

x) Anterior Vaginal wall shows brusing on the right side, 2x1 cm.

All these external injuries were ante-mortem and recent.

38. On opening the dead body for internal examination of the head it revealed haematoma over the left parietal region 1x2 cm. and right frontal region 1x1 cm.:

i) On examination of larynx and trachea revealed cut at the level of corresponding to injury No. 4 in col. 17.

ii) Cut section of lung shows evidence of blood aspiration.

iii) Oesophagus is cut at the level corresponding to injury No. 4 in col. No. 17; food material oozing from cut end of oesophagus.

iv) Stomach contained 100 cm. solid semi digested banana like food material, mucosa sell.

Dr. Patil stated that he preserved the blood for grouping, scale hair finger nail and vaginal and rectal swab for analysis. Injury No. 1 in col. No. 17 caused by hard and blunt object, injury No. 2 and 3 consistent with teeth bite mark, injury No. 4 caused by sharp cutting object, injury No. 5 and 6 caused by hard and blunt object, injury No. 7 to 10 would have been caused by forceful intercourse. Accordingly P.W. 17 Dr. Patil has given the cause of death as shock due to cut throat injury with evidence of vaginal and anal injury. Dr. Patil has further opined that external injury No. 4 and corresponding internal injury mark in col No. 20 at Exhibit 64 are possible by the weapon which is Article No. 27 before the Court. Injury No. 7 to 10 in col. 17 of P.M. Note are possible by violent intercourse. In ordinary course of nature injury No. 4 described in col. No. 17 of P.M. Notes along with corresponding internal injury in col. No. 20 are sufficient in ordinary course of nature to cause death. In case of young girl injury No. 7 to 10 described in col 17 are fatal and can cause death i.e. these injuries by themselves, in absence of further injuries, are sufficient to cause death.

39. Dr. Patil has opined that injuries Nos. 7 and 8 described in column 17 of the post-mortem notes found at the vaginal and anal parts are possible by violent intercourse and without such molestation, the said injuries could not have resulted on the vaginal and anal parts of the deceased child. Further, injuries Nos. 2 and 3 are consistent with the teeth marks on the mouth and indicate that the Accused violently sexually attacked the minor girl, clearly driven by animal lust.

40. Dr. Prashant Patil (P.W. 17) has further opined that the external injury No. 4 and the corresponding internal injury mark in column No. 20 at Exhibit 64 are possible by weapon like the knife (Article 27) and further that in the ordinary course of nature injury No. 4 along with the corresponding internal injury are sufficient in the ordinary course of nature to cause death. Further, in the case of a young girl, injuries Nos. 7 to 10 are fatal and can result in death even in the absence of other injuries.

41. The learned Advocate for the Defence has, however, disputed that the victim girl was subjected to rape relying upon some of the admissions of the medical officer (P.W. 17), namely, that if there was violence in sexual intercourse, there would have been contusion, congestion and swelling on the vaginal parts and on the vulva labia Majorca and also Minorca and spermatozoa would have been detected. It is pointed out that Dr. Prashant Patil (P.W. 17) found that no signs of these were present and in the absence of such medical evidence, it cannot be concluded that the victim girl was subjected to rape or violent sexual intercourse. Clearly, there is no merit in this submission as the medical evidence clearly describes serious injuries to the private parts of the deceased girl. Injuries Nos. 7 to 10 in column No. 17 of the post-mortem notes could not have taken place unless the girl was violently ravished, raped and sodomised. It is in the evidence of the Investigating Officer that the dead body of Guddu was found in a gunny bag and on examination of the body it was noticed that some 'muscle' was protruding from the anal part. Furthermore, there were circular teeth marks on the mouth of the deceased indicating an assault driven by animal lust. The mere absence of spermatozoa on the vaginal part of the victim girl by itself does not disprove a sexual assault. It must be remembered that the vagina and anal parts of the deceased girl child were so small even an attempt at forceful entry might have caused damage to the vagina and anus of the girl. Probably the attempt at forceful intercourse also caused damage to the male organ of the Accused. It is on record that semen stains were found on several articles recovered from the house of the Accused, namely bed-sheet, quilt, clothes of the Accused, knife, etc.

42. Thus, the contention of the Defence that since no spermatozoa was detected on the vagina of the victim girl the medical evidence must be rejected, is without substance. The Supreme Court in the case of State of Himachal Pradesh v. Gianchand 2001 S.C.R. (Cri.) S.C. 557, has observed that presence of spermatozoa in the vagina of the victim is not essential to establish penetration as there are several factors which may negative the presence of spermatozoa. The medical evidence and the observations of Dr. Prashant Patil (P.W. 17) while carrying out the post-mortem of the victim of rape clearly outlining the damage to the private parts of the victim are sufficient to establish rape.

43. In the present case, it is also contended by the Defence that the Prosecution has not established that the Accused himself had suffered any injury on his private organ as a consequence of the forceful penetration as normally happens in such cases and that no medical evidence was produced to prove any injury or swelling on the penis of the Accused. If injuries were sustained by the Accused, the medical certificate would have reflected the same. However, in the absence of medical certificate, the contention of the defence is that the Prosecution has failed to establish the same. However, it must be noted that three days had elapsed between the time of the incident and the medical examination of the Accused within which period any minor injuries on the private part of the Accused might have been healed and no trace left. The Supreme Court also in the case of State of Himachal Pradesh v. Gian Chand (supra) observed that injury to the penis was not a necessary consequence of forceful penetration.

44. The medical evidence produced by the Prosecution to connect the Accused with the rape and ravishment of the victim girl Guddu is further corroborated by the Chemical Analyser's Report (Exhibit 20) which shows the blood group of the deceased Guddu as that of "AB" group. Further the Chemical Analyser's Report (Exhibit 17) shows that blood stains of blood group "AB" of the said deceased Guddu were found on the Articles at serial Nos. 14 to 17, i.e., shirt, full pant, banian and underwear of the Accused. In addition to the blood stains of "AB" group on the nicker (Article 13). which is at serial No. 13 in the C.A. report (Exhibit 17), antigens of "A", "B" and "O" group in the blood and semen stains were detected. Blood stains of "AB" group were also found on the Articles, i.e., mattress, curtain and polythene paper which are shown at serial Nos. 19, 21 and 22 of the Chemical Analyser's Report (Exhibit 17). These Articles were seized from the house of the Accused Rahul under the seizure panchanama Exhibit 61, but no explanation is given by the Accused in his statement under Section 313 of the Code of Criminal Procedure, 1973 as to how these articles came to be stained with blood and that too of the blood group "AB". It is further established that the polythene (plastics) paper (Article 4) in which the dead body was found wrapped and recovered under panchanama (Exhibit 42) and the piece of polythene paper (Article 22) found in the house of the Accused and recovered under Panchanama Exhibit 61 are identical and both were having blood stains of "AB" group as can be seen from the Chemical Analyser's Report (Exhibit 17). Furthermore, the knife (Article 27), the alleged weapon of assault, and the bicycle carrier (Article 24) shown in the Chemical Analyser's Report (Exhibit 17) were also found with the blood-stains of "AB" group.

45. Thus, the medical evidence corroborates the Chemical Analyser's Report and discovery of several articles under various panchanamas coupled with the evidence pertaining to the Articles seized from the scene of offence, i.e., the house of the Accused constitute a well-knit case against the Accused leading to the conclusion that it was the Accused and the Accused alone who committed the murder of Guddu and the offence of rape and sodomy on her. The Accused in his Defence has, of course, denied that he had committed the offences and has also examined his real sister Mangal Chavan (D.W. 1) to disprove the Prosecution case that he had committed the offence in his house when none of his family members were present. According to Mangal Chavan (D. W. 1), she had gone to the house of the Accused and her parents on 24.11.1999 in order to prepare meals for her brother, Accused Rahul, as her parents had gone to Village Balam-takali and that she had stayed in the house with her brother till 9 P. M.; that after the preparation of the meals she and Rahul took their meals together and she left only thereafter. The evidence of Mangal Chavan (D. W. 1) is clearly false. It is an afterthought with a view to shelter her brother from the rigour of the law.

46. The first objection to her evidence is that she is an interested witness, being the real sister of the Accused. The Defence has examined her as an afterthought in order to dislodge all the evidence that has come on record against the Accused by a mere statement that she was present in the house at the relevant time when the offence was committed. It must be noted that the Defence of the Accused is not one of alibi. In effect, the evidence of Mangal Chavan (D. W. 1) establishes that the Accused was present in his house at the relevant time. The evidence brought on record by the Prosecution establishes beyond doubt that it was the Accused and the Accused alone who committed the offence and if according to Mangal Chavan (D.W.1), the sister of the Accused, she was present in the house at that time, then she would be an accomplice to the offence. Even the Accused has not, in his statement under Section 313 of the Code of Criminal Procedure, 1973, stated anything about the visit of his sister Mangal Chavan (D. W. 1) to his house on the evening of 24.11.1999. The Defence put up is clearly a false one and an afterthought and is a further incriminating circumstance in the chain of circumstances implicating the Accused.

EXTRA JUDICIAL CONFESSION

47. A final nail in the coffin of the Accused is the extra - judicial confession made by him to his cousin sister, Shobha Murlidhar Andrak (P. W. 19). Shobha Andrak (P.W.19) has stated that on 27.11.1999 at about 5-15 A.M., Rahul had come to her house. He looked frightened and asked her for Rs. 100/= as he wanted to travel to some other place. On being asked why he wanted to do so, he told her that he had committed some offence and Police were looking for him. Thereupon she asked the Accused to sit in the house and on the pretext that she would get the amount from the neighbour she left the house after putting the chain on the outer door and, informed Sojarbai, the lady who had given her information that the Police were on the look-out for Rahul. In an short while, the Police arrived and nabbed the Accused. The evidence of Shobha Andrak (P.W.19) has gone unchallenged.

48. Furthermore, the Accused in his statement under Section 313 of the Code of Criminal Procedure, 1973 has not denied that he told his sister Shobha that Police is in search of him. No doubt, the Accused had not specified the nature of offence, but there can be no doubt from the other circumstances that the only offence that Rahul was talking about was the offence of murder and rape of Guddu. It is not the case of the Defence that the Accused had committed any other offence and, therefore, mere omission on the part of the Accused to inform his sister Shobha Andrak (P. W. 19) of the exact nature of the offence committed by him and to disclose the name of the victim girl does not make the confession vague or ambiguous.

49. We have scrutinized the judgment of the learned trial Judge and find that the various circumstances pertaining to the offence have been discussed threadbare by the learned trial Jude and he has properly appreciated the facts in the light of the law applicable and necessary for establishing the circumstantial evidence. We do not find any infirmity in the reasoning and, therefore, see no reason to interfere with the judgment and order convicting the Accused of the offence of murder of the minor child Guddu and of having committed rape on her, sodomised her and ravished her and sexually assaulted her like a beast. We accordingly uphold the order of conviction.

50. Coming to the question of sentence, it is seen that the learned trial Judge has convicted the Accused and has sentenced him for the offence punishable under Section 302 of the Indian Penal Code of death by hanging and for the offence punishable under Section 363 of the Indian Penal Code, namely, abducting the minor girl, to undergo rigorous imprisonment for five years and fine, for the offence under Section 376(2)(f) of the Indian Penal Code to suffer rigorous imprisonment for life and fine, for the offence punishable under Section 377 of the Indian Penal Code to imprisonment for life and fine, and for the offence punishable under Section 201 of the Indian Penal Code to rigorous imprisonment for five years and fine. All the sentences are directed to run concurrently. Since the Accused has been sentenced to suffer death by hanging, the matter has come up for confirmation to this Court under Section 366 of the Code of Criminal Procedure, 1973. It appears that before imposing the sentence, the learned trial Judge had heard the accused on the point of sentence. It was submitted on behalf of the Accused that he is unmarried, that his parents are old, that his two elder brothers are married and are residing separately and that the responsibility of maintaining his old parents is on him and hence he may be shown leniency. On the question of sentence of death by hanging, it was submitted that this is not 'a rarest of rare cases' calling for death sentence.

51. Reference is made to the following mitigating circumstances.

i) That the offence was committed under the influence of liquor. (That he had consumed liquor is seen from the evidence of Narayanlal Choudhary (P. W. 2))

ii) That he is a young man 24 years of age.

iii) That he has no previous conviction.

The learned A.P.P., had argued that none of the aforesaid circumstances could be pressed into service as mitigating circumstances for not imposing the death penalty. The learned trial Judge has consequently imposed the death sentence.

52. So far as the case of the Defence that the offence was committed under the influence of alcohol is concerned, it is pointed out that this was not the case of the defence during the trial. Furthermore, just because the Accused was seen by Narayanlal Choudhary (P. W. 2) with his eyes reddish in colour, no inference could be drawn that he had consumed liquor or that he had temporarily lost his mental balance. The act appears to be premeditated and pre-planned as the Accused enticed the victim girl with chocolates. He was fully aware that he was alone at home as his parents had gone out and, therefore, it cannot be said that he was not in a proper state of mind.

53. On the plea of comparative youth of the Accused is concerned, the Supreme Court has in the following cases

(i) Ram Deo Chauhan and Anr. v. State of Assam and Anr., 2002 ALL MR (Cri) 1890,

(ii) Jai Kumar v. State of Madhya Pradesh, 1999 ALL MR (Cri) 987;

and

(iii) Sunil Baban Pingle v. State of Maharashtra (2000 ALL MR (Cri) 344;

held that the young age by itself cannot be a mitigating factor.

54. The fact of the Accused not having any previous conviction becomes irrelevant, if it can be shown that the offence committed is itself heinous, brutal and cold-blooded.

55. Before the trial Court, it was submitted by the Public Prosecutor that this is the rarest of the rare cases as there was sufficient evidence on record to show that the Accused committed a heinous offence in a cold-blooded and brutal manner and placed reliance on the decision of the Supreme Court in the case of Macchi Singh and Ors. v. State of Punjab, . However, the learned Defence Counsel had submitted that this is not the rarest of the rare cases and relied upon the decision of the Supreme Court in the case of Bantu v. State of M.P., 2002 Cri. L. J. 211. However, the learned trial Judge has found no force in the submission of the Defence Advocate since in the case of Banu v. State of M.P. (supra), the murder of the victim was committed after rape by gagging her mouth and pressing her nostrils in order to prevent the victim from shouting or screaming or raising alarm. Further, in that case the age of the Accused was about 22 years.

56. In our view, the appellant - Rahul alias Raosaheb Dashrath Bhongale deserves the sentence of death. In our opinion, this case would fall in the category of "the rarest of rare cases" warranting the imposition of the sentence of death. There is sufficient evidence on record to show that the Accused acted in a cold-blooded, premeditated and heartless manner. The fact there was prior planning is manifest from the fact that the Accused, in order to carry out his nefarious plan, did not attend his duty at Rathi Chemicals. The Accused had telephoned his office on 24.11.1999 and informed the accountant that he would not be attending his duties as his sister had committed suicide by taking poison. Despite taking leave on the said ground, the Accused Rahul did not accompany his parents who went to the house of the sister who had committed suicide. On the contrary, knowing that Guddu would be playing around in the neighbourhood and after ensuring that his parents had left the house, the Accused started executing his nefarious plan and enticed Guddu by purchasing chocolates for her and taking her to his house knowing fully well that Guddu would be unsuspecting of his intention.

57. The manner in which the act of rape and sodomy of a child hardly 4 1/2 years old was committed resulting in serious injurious to the vagina and anus of the child and the extreme ferocity with which the child was sexually assaulted, which fact is manifest from the circular teeth marks on the mouth of the child, discloses the depravity of the Accused. Brutally cutting the throat of the child with the knife is a clear indication that the Accused did not do so marks in order to prevent the victim from shouting or raising any alarm, out of perversity and depravity of mind. Furthermore, the subsequent act of the Accused in tying the hands and legs of the child and stuffing the body in plastic bag and thereafter putting it in a sack and taking it on a bicycle to a far away place indicates not just depravity of nature but a calculated and cold-blooded act on the part of the Accused to commit the offence and thereafter cause disappearance of the evidence.

58. Unlike the case of Bantu v. State of M.P. (supra), the murder of Guddu was committed by cutting her throat with the knife (Article 27). Clearly the intention of the Accused was not merely to prevent the girl from shouting or screaming or raising alarm, but his action of cutting her throat with the knife clearly indicates the depravity of mind of the accused.

59. Again in the case of Bantu v. State of M.P. (supra), the victim girl was 22 years old while in the present case, she was just 4 1/2 years old. Rape and sodomy of a child of such tender age by a grown- up man would by itself result in death of the victim as has been deposed to by Dr. Prashant Patil (P. W. 17), who has stated that the injuries Nos. 7 and 10 in column 17 of the post-mortem notes corresponding with the internal injuries in column 20 are sufficient in the ordinary course of nature to cause death and that in case of a young girl, the said injuries would be fatal even in the absence of any other injuries.

60. The Supreme Court in paragraph (26) of the decision in the case of E. Anamma v. State of A. P., , has observed as under:

"On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, halpless state of the victim, and the like, steel the heart of the law for a sterner sentence."

61. We may also advert to the observations of the Supreme Court in the case of Bachan Singh v. State of Punjab, , wherein, in paragraph (200) in the context of aggravating circumstances relating the imposition of death sentence, the Supreme Court observed thus:

"Aggravating circumstances: A Court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

62. In the instant case, we find the case of the appellant - Accused Rahul alias Raosaheb Dashrath Bhongale would fall both under (a) and (b) above and hence the sentence of death would be the only proper sentence.

63. Before us, Smt. Bhosale, the learned A.P.P., has referred to and relied upon several decisions of the Apex Court wherein the victim girl was raped and murdered either by strangulation or by sharp-edged weapon. In the case of Dhananjoy Chatterjee v. State of W.B., , the Apex Court has held as follows

There are no extenuating or mitigating circumstances whatsoever in the case. A real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence to death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenceless young girl of 18 years, by the security guard certainly makes this case a "rarest of the rare" cases which calls for no punishment other than the capital punishment."

64. Again in the case of Laxman Naik v. State of Orissa, (1944) 3 Supreme Court Cases 381, the Apex Court in paragraph (28) of the judgment observed as follows:

The evidence of Dr. Pushp Lata, PW 12, who conducted the post-mortem 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 which she was subjected to while committing rape on her. The victim of the age of Nitina could not have even 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 cases 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 facts of the present case are akin to the above-mentioned case.

65. Again, the in case of Kamta Tiwari v. State of M.P., , where the appellant kidnapped the deceased committing rape on her, strangulating her to death and throwing the dead body in a well, the Court held that in these circumstances of the case the appellant deserved the death sentence.

66. Again, in the case of Molai v. State of M. P., 2000 Cri. L. J. 392, where a teen aged girl was all alone in the house preparing for her examination, the Accused taking advantage of the same committed rape on her and strangulated her by using her underwear and causing injuries on the person with sharp edged weapon and thereafter throwing the dead body into a septic tank at the rear of the house, held that it was the rarest of the rare cases and capital punishment was rightly awarded to each of the Accused.

67. Drawing a parallel with the above-mentioned cases, the Supreme Court was of the opinion that death sentence was the only appropriate sentence in those circumstances. The facts of the present case also call for the death sentence as we do not find any mitigating circumstances which would attract the mercy of law.

68. After concluding the hearing but before passing the final order, we came across a recent Supreme Court ruling in the case of Amit v. State of Maharashtra, 2003 AIR SCW 3980, where a young school girl about 12 years of age was abducted, raped and then murdered by strangulated her to death. The Accused there was a young man of 20 years. The Apex Court taking into consideration the youth of the accused and the fact that there was no record of any previous heinous crime committed by him and also no evidence that he would not be a danger to the society, if the penalty of death was not awarded, while condemning the crime modified the death penalty to one of life imprisonment. The facts of the present case also disclose that the Accused is a young man of 24 years (at the time of offence), that there is no record of any previous conviction for any offence, heinous or otherwise, and also there is no evidence on record that he will not be a danger to the society if the death penalty is not awarded. However, looking to the facts of the offence, it is seen that there was premeditation and preparation on the part of the Accused to commit the offence. Rape, sodomy and sexual molestation of the child just 4 1/2 years would, as stated above, indicate a perverted and depraved mind. The medical evidence on record shows that even if there were no other injuries, the injuries resulting from the forceful sexual assault on the child were by themselves enough to cause death of the child. But apart from that, the Accused also committed brutal murder of the child by cutting her throat with a knife. If the intention of the Accused was only to prevent the child from raising an alarm or if his intention was to do away with the evidence of rape, the same could have been accomplished by less heinous act, like strangulating the child. In the present case, the Accused thought it fit to cut her throat with the knife indicating that he derived sadistic pleasure out of the act. The facts of the present case are too gruesome and the enormity of the crime militates against any mercy being shown to the Accused.

69. In the result, we pass the following order.

(a) The Reference made by the learned Additional Sessions Judge, Pune for confirmation of the death sentence of Rahul alias Raosaheb Dashrath Bhongale is accepted.

b) Criminal Appeal No. 1085 of 2002 is dismissed.

Certified copy of this judgment and order be supplied to the Accused free of cost immediately.