Bombay High Court
At Present In Kolhapur Central ... vs The State Of Maharashtra on 10 December, 2010
Bench: Ranjana Desai, V.K. Tahilramani
1 CONF-1-2009
jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRI.CONFIRMATION CASE NO. 1 OF 2009
(REFERENCE MADE BY ADDL. SESSIONS JUDGE, KOLHAPUR)
IN
SESSIONS CASE NO. 73 OF 2008
The State of Maharashtra ]
through Karveer Police Station ]...Complainant
Vs.
Babu alias Ravindra Suresh Kamble
ig ]
Aged about 23 years, Occ: Labourer, ]
R/o Nerli, Taluka Karveer, ]
District Kolhapur ]..Accused
---
Mrs. Mankunwar Deshmukh APP for the State
Mr. Abhaykumar Apte Adv. (appointed) for Accused
---
WITH
CRIMINAL APPEAL NO. 78 OF 2010
Babu alias Ravindra Suresh Kamble ]
Aged about 23 years, Occ: Labourer, ]
R/o Nerli, Taluka Karveer, ]
District Kolhapur ]
At present in Kolhapur Central Jail ]..Appellant
Vs.
The State of Maharashtra, at the instance ]
of Karveer Police Station, CR 222/2007 ]...Respondent
::: Downloaded on - 09/06/2013 16:41:11 :::
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....
Mr. Abhaykumar Apte Adv. (appointed) for Appellant-accused
Mrs. Mankunwar Deshmukh APP for the Respondent-State
....
CORAM : SMT.RANJANA DESAI AND
SMT.V.K.TAHILRAMANI, JJ.
DATE OF RESERVING
THE JUDGMENT : AUGUST 13, 2010
DATE OF PRONOUNCING
THE JUDGMENT : DECEMBER 10 , 2010
JUDGMENT: [PER SMT.V.K.TAHILRAMANI,J.]:
1 By judgment and order dated 5.3.2009 in Sessions Case No.
73 of 2008, the learned Additional Sessions Judge, Kolhapur convicted
the accused for the offence punishable under Section 302 of IPC and
sentenced him to capital punishment of death. By the very same
judgment and order the accused was also convicted under Sections
363, 376(2)(f) and 201 of IPC. For the offence under Section 363 of IPC
the accused was sentenced to RI for three years and fine of Rs.1000/- in
default RI for one month. For the offence under Section 376(2)(f) he
was sentenced to suffer RI for ten years and to pay a fine of RS.1000/-
in default RI for one month and for the offence punishable under Section
3 CONF-1-2009
201 of IPC, the accused was sentenced to RI for three months and to
pay a fine of Rs.1000/- in default RI for one month. The learned
Sessions Judge directed that all the substantive sentences shall run
concurrently. As sentence of death was imposed on the accused, the
learned Sessions Judge made a reference to this Court for confirmation
of death sentence. The appellant-original accused being aggrieved by
the very same judgment and order, preferred Criminal Appeal No.781 of
2010. As both the confirmation case and the appeal were directed
against the very same judgment and order, hence, both these matters
were heard together.
2 The prosecution case briefly stated is as under:
PW 9 Ashok and PW 4 Sangita are the parents of victim girl
Chakuli. They resided in village Nerli, District Kolhapur. They had three
children i.e. daughter Aparna, son Ajit and daughter Chakuli aged 5
years. The mother of Ashok also resided in the same village but in a
separate house. The grand mother of the accused and the mother of
PW 9 Ashok were acquainted with each other, hence, the accused used
to visit the house of Sangita and Ashok.
On 24.10.2007 at about 7.30 p.m. the accused came to the
4 CONF-1-2009
house of Sangita to tell her that she should come for work on the next
day. At that time, Chakuli and Ajit were playing outside the house. At
about 8.15 p.m. Ajit came inside the house. Sangita enquired with Ajit
about the whereabouts of Chakuli whereupon, he said that he did not
know as he had gone to view TV programme. Hence, they made
announcement on the loudspeaker in the village that Chakuli was
missing. Thereafter, Ashok and Sangita searched for Chakuli in the
village but they were not able to trace Chakuli. On the next day also
they searched for Chakuli but she could not be found. Thereafter,
Ashok lodged missing report in Karveer police station. Accordingly,
entry no.6 of 2007 was made in the register maintained for missing
persons.
On 29.10.2007 at about 9.00 a.m. one PW 6 Ravindra Patil
was ploughing the field of Anil Patil near the Nerli-Kagal road, where
sugarcane crop was standing in some part of the field. At that time, he
noticed that a dog had dragged some object upto the embankment of the
field and dirty smell emanated from the object. Hence, he went to the
spot and he noticed a naked dead body of a girl with bangles on the left
hand. He also saw a frock, underwear, plastic bangles, underwear and
banyan of a male, one empty liquor bottle and lid lying scattered in the
5 CONF-1-2009
nearby area. He recollected the announcement made on 24.10.2007
about Chakuli being missing, hence, he went to the house of Ashok. At
that time, only Sangita was present in the house. Ravindra Patil
disclosed the incident to her. Thereafter, all family members of Ashok
and others went to the spot and they identified the dead body of Chakuli
on the basis of bangles, frock etc. Thereafter police patil of Nerli village
informed this incident to the police at about 11.15 a.m. A.D. Case No.
222 of 2007 under Section 174 of Cr.P.C. came to be registered at
Karveer Police Station. PW 3 ASI Chigare along with constable
proceeded to the spot. By that time, other police personnel also reached
the spot. ASI Chigare prepared inquest panchnama and spot
panchnama in the presence of panchas. He seized 11 articles found in
the nearby area. He sought help of dog squad. The dog squad arrived
at about 2.00 p.m. When the dog was given smell of banyan and
knicker, the dog led the police to the house of Chakuli and then to the
house of accused. On enquiry with Ashok father of Chakuli, ASI
Chigare came to know that the accused had come to their house on
24.10.2007 and since then Chakuli was missing. Hence, ASI Chigare
inferred that the accused might have raped Chakuli and committed her
murder, hence, he lodged complaint on behalf of the State against the
accused. Accordingly, CR No.253 of 2007 was registered for the
6 CONF-1-2009
offence under Sections 363, 376, 302 and 201 of IPC. The dead body of
Chakuli was sent for postmortem. Dr. Reshma Patil who conducted post
mortem noticed that there was tear of hymen with injury to perineum. In
the opinion of P.W. 23 Doctor Reshma Patil the cause of death was due
to throttling with multiple fractures of ribs. It transpired during the
investigation that the accused had kidnapped the minor girl Chakuli,
committed rape on her and then committed her murder. After
completion of investigation, the charge sheet came to be filed against
the accused.
3 Charge under Sections 302, 376(2)(f), 363 and 201 of IPC
came to be framed against the accused. The accused pleaded not guilty
to the said charge and claimed to be tried. His defence is that of total
denial and false implication. After going through the evidence adduced
by the prosecution, the learned Sessions Judge convicted and
sentenced the accused as stated in para 1 above.
4 We have heard the learned counsel Mr. Abhaykumar Apte for
the accused and Mrs. Deshmukh, the learned APP for the State of
Maharashtra. We have perused the judgment and order passed by the
learned Sessions Judge. We have also perused the evidence on record.
7 CONF-1-2009
After carefully considering the matter, for the reasons stated herein
below, we are of the opinion that the judgment and order of conviction
passed by the learned Sessions Judge does not call for any interference.
5 There is no eye witness in the present case and the case
depends only upon circumstantial evidence. In order to prove its case,
the prosecution has relied on the following incriminating circumstances,
which according to the prosecution conclusively prove the guilt of the
accused:
(a) Chakuli was missing from about 8 p.m. of 24.10.2007 (PW 9);
(b) Deceased was last seen in the company of the accused on
24.10.2007 between 8 p.m. to 8.30 p.m. ; (PWs 11, 12, 13 and 16).
(c) Previous conduct of the accused and preparation on his part
i.e. purchasing bottle of liquor and purchasing chocolate to give the
same to Chakuli and thus lure her away; (PW 7, PW 14 and PW 15)
(d) Subsequent conduct of the accused i.e. he was seen
sweating and in a frightened condition by witnesses (PW 5 and 8).
(e) Finding of wrapper of chocolate pursuant to memorandum
statement given by the accused; (PW 10)
(f) The evidence of PW 18 Dr. Patil who has stated that
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accused had a 4 to 7 days old scar on his private part;
6 As far as the first circumstance as stated above is concerned,
it is not disputed by the defence that from 24.10.2007 Chakuli was
missing. However, Mr. Apte submitted that the accused had nothing to
do with the disappearance or murder of Chakuli.
7 On the aspect of last seen, the prosecution has examined
four witnesses i.e. PW 11 Vandana, PW 12 Gangubai, PW 13 Dipali and
PW 16 Suresh. They are all residents of Village Nerli. The house of PW
11 and 13 is situated near the house of Chakuli. PW 11 Vandana is
the first witness on the aspect of last seen. She is the neighbour of
Chakuli. Vandana has stated that she knew the accused as well as
Chakuli. On 24.10.2007 at about 8 p.m. while she was sitting in the
doorway of her house, in the light of electric bulb outside her house as
well as in the moon light, she saw that her son and Chakuli were
playing infront of her house. At that time, accused came from Bhairoba
temple side and he called Chakuli towards him saying that he will give
her sweetmeat. When Chakuli reached near the accused, accused gave
her a chocolate. Thereafter, accused and Chakuli went towards Shirol
Nala side.
9 CONF-1-2009
8 PW 12 Gangubai is the next witness on the aspect of last
seen. She has stated that on 24.10.2007 at about 8 p.m. to 8.30 p.m.
she was answering the call of nature. At that time, she saw one man
coming towards that side with a girl. One motorcycle passed by that
side and in that light, she saw that the man was the accused and the girl
was Chakuli. This witness has stated that the accused was telling
Chakuli to walk fast.
The next witness on the aspect of last seen is PW 13 Dipali.
Her house was near the house of Chakuli. She has stated that on
24.10.2007 at about 8.15 p.m. when she was standing on the road
infront of her house, the accused came towards her. Accused enquired
with Dipali whether she would accompany him to his house. She did not
give any reply. At that time, Chakuli was nearby. Dipali saw the
accused proceeding ahead and Chakuli following him. Thereafter, she
went to sleep.
10 PW 16 Suresh is a resident of village Nerli. He has stated
that on 24.10.2007 at about 8.30 p.m. he was returning back to Nerli on
his motor cycle. When he reached near the boundary of his village, he
saw accused taking Chakuli with him towards Kagal road. He saw them
10 CONF-1-2009
in the light of his motor cycle. He also saw two ladies who were
attending the call of nature by the side of the road. PW 12 Gangubai
has stated that when she went to attend call of nature, in the light of a
motorcycle which was passing by, she saw the accused and Chakuli
coming towards their side. The evidence of PW 16 Suresh thus stands
corroborated by the evidence of Gangubai who has stated that when she
was answering call of nature, a motorcycle passed by and in the light of
the motorcycle she saw the accused and Chakuli. PW 16 Suresh has
also stated that when he reached boundary of the village, he saw the
accused and Chakuli and at that time, two ladies were answering the call
of nature by the side of the road. All these witnesses are residents of
village Nerli and being residents of village Nerli, all these witnesses
knew the accused as well as Chakuli. Nothing has been elicited in the
cross-examination of any of these witnesses so as to disbelieve their
testimony that on 24.10.2007 between 8.00 p.m. to 8.30 p.m. they saw
the accused and Chakuli together.
11 Mr. Apte stated that as per the prosecution Chakuli was
missing from the night of 24.10.2007. He drew our attention to the
evidence of Ashok who is the father of Chakuli wherein he stated that an
announcement was made that very night in the village from the speaker
11 CONF-1-2009
at Bhairavnath temple about Chakuli being missing. Mr. Apte submitted
that in such case, all these four witnesses would have informed Ashok or
Sangita that they had seen accused and Chakuli together. The very
fact that they did not inform Ashok or Sangita that they had seen
accused and Chakuli together on 24.10.2007 means that none of these
witnesses had actually seen the accused and Chakuli together on
24.10.2007 and only in order to support the prosecution, they have been
set up by the prosecution and their statements were recorded later on.
He also pointed out that the statements of these witnesses were
recorded belatedly, therefore, they cannot be relied upon.
12 As far as PW 11 Vandana is concerned, she has stated that
she did not hear any announcement on the speaker about Chakuli being
missing as she had gone to sleep by that time. She has stated that
parents of Chakuli had not made any enqiury with her about
Chakuli. On the next day, she had gone for Yatra and came back only
after four days. Then she learnt that the accused had raped and
committed murder of Chakuli. Obviously, as this witness was not
available in the village, her statement could be recorded only when she
came back to the village. As she had gone for yatra the very next day.
She did not know Chakuli was missing till she came back and hence,
12 CONF-1-2009
there was no question of her telling anything to parents of Chakuli.
13 PW 12 Gangubai has also stated that she had not heard
announcement on the speaker on the night of 24.10.2007. As far as
Suresh PW 16 is concerned, he has stated that he had not heard
announcement on the speaker in the night about Chakuli being missing
as he was viewing TV programme. On the next day, he had gone to
Pune. He came back to the village from Pune on 1.11.2007 only in the
night, hence, he did not know Chakuli was missing. It is observed that
these witnesses themselves have explained as to why their statements
were recorded late by the police. Evidence of PW 13 Dipali does not
show that she had heard any announcement. It is also to be noted that
none of these witnesses or the Investigating Officer were asked any
question categorically on the point of delay in recording their statements.
On the point of delay in recording statements, we may make useful
reference to a decision of the Supreme Court in State of Uttar Pradesh
Vs. Satish, AIR 2005 S.C. 1000, wherein it is observed as under:
" A s regards delayed examination of certain witnesses, this
Court in several decisions has held that unless the
Investigating Officer is categorically asked as to why there
was delay in examination of the witnesses the defence cannot
13 CONF-1-2009
gain any advantage therefrom. It cannot be laid down as a
rule of universal application that if there is any delay in
examination of particular witness the prosecution version
becomes suspect. It would depend upon several factors. If
the explanation offered for the delayed examination is
plausible and acceptable and the Court accepts the same as
plausible there is no reason to interfere with the conclusion" .
We may also refer to the case of Raju Raghunath Vs. State of
Maharashtra, reported in 2008 All MR (Cri.) 2160 wherein it is observed
that " m erely because witness had not come forward to give his
statement on the very same day that would not be a sufficient ground to
discredit his testimony." Thus, as none of these witnesses has heard
about the announcement therefore, there was no question of them
informing Ashok or Sangita that they had seen the accused and
Chakuli together on 24.10.2007.
14 In any event, accused and his family were well known to
Chakuli and her family. This is clear from the evidence of PW 9 Ashok
father of Chakuli. Ashok has stated that his mother and grand mother of
accused were acquainted with each other and accused used to visit their
14 CONF-1-2009
house frequently. As the family of accused and Chakuli were well known
to each other, hence, no one suspected that there was anything amiss
when they saw the accused and Chakuli together. They would not find
anything strange nor would they suspect anything when they saw the
accused and Chakuli together. It was only if they had seen something
which according to them, was unusual then they would have gone and
informed the parents of Chakuli. For all these witnesses seeing Chakuli
with the accused was not an unusual occurrence, hence, they did not
find anything strange so as to inform the parents of Chakuli.
15 Mr. Apte contended that a conviction cannot be based on the
point of " l ast seen" and circumstance of " l ast seen" cannot be said to
be an incriminating circumstance. To support this contention, he has
placed reliance on the decision in the case of Seth Pal Vs. State of
Himachal Pradesh (2003) 12 S.C.C. 169. We have carefully perused
the decision. The Supreme Court observed that the conviction of
appellant (brother of deceased) was based on circumstances that (i)
before recovery of dead body, deceased, appellant and G (brother in law
of appellant) were seen together at a tea stall by PW 1 and (ii) appellant
was thereafter not seen in the locality. In the said case, as both
deceased and accused were closely related, the first circumstance of
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`last seen' was , held not an incriminating one and second circumstance
in the facts of the case did not amount to abscondence, hence,
appellant was acquitted. It is observed that in the peculiar facts of that
case, the observations were made that `last seen' is not an incriminating
circumstance. The Supreme Court in the said decision did not lay down
by way of universal application that circumstance of last seen is not an
incriminating circumstance.
On the aspect of last seen, Mr. Apte also placed reliance
upon the decisions in the following cases:
(1) Eradu and others Vs. State of Hyderabad; AIR 1956 SC 316.
(2) Gambhir Vs. State of Maharashtra; (1982) 2 S.C.C. 351;
(3) K. Sukumaran Vs. State of Kerala; (2000) 10 S.C.C. 365;
(4) Dinesh Borthakur Vs. State of Assam; (2008) 5 S.C.C. 697;
(5) State of Uttar Pradesh VS. Ram Balak and another; (2008) 15
S.C.C. 551;
In the decision in Eradu (supra) it was observed that " w here
the accused enticed away the deceased on the evening of the day of
murder and the deceased was found hanging in the backyard of his
house, these circumstances by themselves, are not enough, without
16 CONF-1-2009
anything more, to connect the accused with the crime."
In the decision of Gambhir (supra), it was observed that " on
scrutiny the only thing established is that the accused and other persons
used to visit the house of Laxmi during the absence of her husband and
that he was again seen in the company of Laxmi on February 26, in the
night till before dinner time. This single circumstance by itself is too
feeble to connect the accused with the murder of Laxmi and her
children" . In both these decisions, it appears that the only circumstance
is that of `last seen' hence, these observations were made. However, in
the present case, " l ast seen" is not the only circumstance against the
accused hence, both these decisions would not be applicable.
17 In the decision of K. Sukumaran (supra), it was observed that
though circumstance of last seen together was proved, but as a most
vital circumstance that is the alleged clothes of the accused on which
blood of the same group as of the deceased was found actually
belonged to the accused was not established, on facts, it was held that
the charge of murder against the accused-appellant could not be proved
beyond reasonable doubt, hence, the accused was entitled to acquittal.
17 CONF-1-2009
From the above observations it becomes at once clear that the only
circumstance against the accused therein was " l ast seen" and in the
facts of the said case, it was not found to be sufficient. It is reiterated
that in the present case, there are many other circumstances besides
the circumstance of " l ast seen" .
18 Reliance was also placed by Mr. Apte on the observations in
the decision in Dinesh Borthakur (supra).
ig On going through the said
decision, we found that the circumstance of last seen was not relied
upon as in that case no proper evidence was brought on record and
there was improper and ineffective investigation and prosecution
hence, it was held, no suspicion can be raised that the appellant had
committed the crime." This case is entirely distinguishable on facts. As
the facts in the case relied upon and the present case are entirely
different, this decision would not be applicable to the present case.
19 In the decision in Ram Balak (supra), it was held that
" m erely because the accused were seen near the place of incident, that
cannot be a ground to show their involvement. There was no evidence
to show that accused were last seen in the company of the deceased."
In the present case, the evidence of PWs 11, 12, 13 and 16 clearly
18 CONF-1-2009
shows that the accused was `last seen' in the company of the deceased.
The accused has made no attempt to explain where the deceased went
thereafter i.e. when and where he and the deceased parted company.
Thus, in the facts of this case, the circumstance of `last seen' is a strong
circumstance against the accused.
20 On the aspect of last seen, the learned APP placed reliance
on a decision in the case of Barku Bhaskar Vs State of Maharashtra
reported in 2006(1) Bom.C.R. (Cri) 353. She has placed reliance on
para 10 wherein it is observed as under:
" Time gap between last seen and discovery of dead body is
immaterial. By larger time gap between last seen and death
also the evidence of witnesses need not be discarded in the
light of the illustration quoted herein above and the evidence
of last seen together can be worthless, only if, defence
creates a probability of somebody having seen the victim
alive, after the point of time about which the witnesses speak
of last seen together. In the matter at hands, there is no such
possibility created by the defence. In the circumstances, the
evidence of Ranjana and Rajendra, at least, rolls the ball into
the Court of the accused and it was necessary for him to
explain as to when did he part the company of the victim. On
reference to answers to question nos. 7, 8 and 13 during the
statement under Section 313 of the Cr.P.C., the accused does
not seem to have utilized the opportunity for offering any
19 CONF-1-2009
plausible explanation. We are, therefore, not inclined to
accept the submission of the learned Advocate for the
appellant that evidence of Ranjana and Rajendra, on the point
of last seen together is worthless any utility."
21 Learned APP also brought to our notice that in the present
case, there is no suggestion to any witness that the victim was seen
alive by anybody after having parted company with the accused. On the
point of `last seen' the learned APP has also placed reliance on the
decision in the case of Joseph s/o. Kooveli Poulo Vs State of Kerala
reported in AIR 2000 SC 1608 wherein the Supreme Court observed
that the formidable incriminating circumstances against the appellant, as
far as could be seen are that the deceased was taken away from the
Convent by the appellant under a false pretext and she was last seen
alive only in his company and that it is on the information furnished by
the appellant in the course of investigation that the jewels of the
deceased were seized. She pointed out that it was only on the basis of
these two circumstances that the charge under Sections 302 and 392
came to be upheld.
22 The learned APP pointed out another circumstance against
the accused. She stated that prior to the incident between 7.30 p.m. to 8
20 CONF-1-2009
p.m. accused purchased liquor as well as coffee bite chocolates. She
submitted that bottle of liquor was purchased by the accused to give a
boost to his courage to commit the offence. The purchase of chocolates
by the accused shows that the offence was preplanned as the accused
purchased chocolates with the intention that he would offer it to Chakuli
and Chakuli being 5 to 6 years old, would accept the chocolate and
would do his bidding. The evidence of PW 14 Dagadu shows that on
24.10.2007 at about 8 p.m. the accused came to his shop and
purchased quarter size Santra liquor. It is pertinent to note that quarter
size santra liquor bottle (article 3) and cap (article 4) were found near the
dead body which is evident from the evidence of Pancha witness PW 2
Dipak Kamble and the panchnama (Exh.14).
23 PW 7 Baliram Patil is the grocery shop owner in village Nerli.
He has stated that on 24.10.2007 at about 7.30 p.m. the accused came
to his shop and purchased Chocolates. Witness has identified the
wrapper of chocolate (article 15) of coffee bite as similar to the one sold
by him to the accused. This wrapper of coffee bite chocolate was found
near the scene of incident.
24 This conduct of the accused prior to the incident shows that
21 CONF-1-2009
he had prepared the plan in his mind to lure Chakuli so that he could
commit rape on her and pursuant to this, he went to shop of PW 7
Baliram and purchased chocolates. PW 11 Vandana has stated that at
about 8 p.m. the accused called Chakuli and gave her chocolate and
then took her towards Shirol Nala side. Thus, the accused purchased
chocolate from PW 7 Baliram which chocolate he gave to Chakuli which
was witnessed by PW 11 Vandana and wrapper of coffee bite chocolate
was found near scene of incident. This circumstance also connects the
accused with the crime.
25 The learned APP drew our attention to the subsequent
conduct of the accused which has been deposed to by PW 5 Vaishali
and PW 8 Pujari. PW 5 Vaishali has stated that on 24.10.2007 at about
8.30 p.m. to 9.30 p.m. she heard announcement on the loudspeaker of
the temple in their village about Chakuli being missing. At about 9.30
p.m. when she was proceeding towards temple, the accused met her on
the way. She enquired with the accused whether he had seen Chakuli
who was reported to be missing, on that, the accused got frightened and
replied in the negative. This witness has specifically stated that when
the accused met her he was terrified and he was sweating.
22 CONF-1-2009
26 PW 8 Tamma Pujari is also a resident of village Nerli. He has
stated that on 24.10.2007 at about 9.15 p.m. he saw the accused
coming from Kagal road side towards the village. He noticed that
accused was in a hurry and he was frightened and was sweating. Thus,
both these witnesses i.e. PW 5 Vaishali and PW 8 Pujari have seen the
accused at about 9.15 p.m. to 9.30 p.m. on 24.10.2007 and both of them
have categorically stated that the accused was in a frightened condition
and he was sweating. Thus, the subsequent conduct on the part of the
accused lends further assurance to the prosecution case that at about
8.30 p.m. the accused took away Chakuli and committed rape on her
and murdered her.
27 Thereafter, the prosecution has relied on the evidence of PW
10 Nivrutti who is panch witness to the panchnama (Exh.26) wherein
the accused stated that he will show the place where he gave chocolate
to Chakuli. Pursuant to the said statement made by the accused, the
accused led the police and panchas towards the spot near village Nerli.
The accused went near a thorny bush and took out a wrapper of a
chocolate from the said bush. The wrapper of chocolate (article 15)
came to be seized and sealed. PW 7 Baliram has identified the wrapper
(Exh. 15) as being similar to that of the chocolate purchased by the
23 CONF-1-2009
accused from him at about 7.30 p.m on 24.10.2007.
Mr. Apte submitted that this cannot be held to be a recovery
under Section 27 of the Evidence Act because the accused had not
stated that he would show the wrapper to the police but he had only
stated to the police that he would show the place where he gave the
chocolate to Chakuli.
According to the learned APP, fact discovered embraces the
place from where the object is produced and the knowledge of the
accused as to this. She relied on the decision of the Supreme Court in
the case of Inspector of Police, Tamilnadu Vs Bala Prasanna
reported in (2008) 11 Supreme Court Cases 645. In the said decision,
in relation to Section 27 of the Evidence Act, it is observed as under:
" The scope and ambit of Section 27 of the Evidence Act had been
stated and restated in several decisions of this Court. However, in
almost all such decisions reference is made to the observation of
the Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC
67). It is worthwhile to extract such quoted observation:
" It is fallacious to treat the 'fact discovered' within the section as
equivalent to the object produced; the fact discovered embraces
the place from which the object is produced and the knowledge of
the accused as to this and the information given must relate
24 CONF-1-2009
distinctly to this fact. Information as to past user or the past
history, of the object produced is not related to his discovery in the
setting in which it is discovered. Information supplied by a person
in custody that 'I will produce a knife concealed in the
roof of my house' does not lead to the discovery of the knife;
knives were discovered many years ago. It leads to the
discovery of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to have
been used in the commission of the offence, the fact discovered is
very relevant... ... .
It was further observed :
" A t one time it was held that the expression "fact discovered" in
the section is restricted to a physical or material fact which can be
perceived by the senses, and that it does not include a mental
fact, now it is fairly settled that the expression "fact discovered"
includes not only the physical object produced, but also the place
from which it is produced and the knowledge of the accused as to
this, as noted in Pulukuri Kottaya's case (supra).
From the above decision, it is clear that fact discovered also covers the
place from which it is produced and the knowledge of the accused as to
this. The accused knew where he gave the chocolate to Chakuli. The
finding of a chocolate wrapper at the spot further corroborates the
prosecution case. The finding of chocolate wrapper at the spot was in
consequence of the information received from the accused which
25 CONF-1-2009
coupled with the evidence of PW 11 Vandana and PW 7 Baliram is
another circumstance against the accused.
29 On this point, learned advocate for the accused vehemently
argued that wrapper of chocolate was found at an open place and such
seizure is of no consequence. As far as the aspect of recovery of
incriminating article i.e. chocolate wrapper from the place which is open
and accessible to others is concerned, the learned A.P.P. cited the case
of State of Maharashtra Vs. Bharat Fakira Dhiwar, reported in (2002) 1
SCC 622, wherein the case of State of Himachal Pradesh Vs. Jeet
Singh, reported in (1999) 4 SCC 370 is referred to and it is observed as
under:
" T here is nothing in section 27 of the Evidence Act, which
tenders the statement of the accused inadmissible if the
recovery of the articles was made from any place which is
" o pen or accessible to others" it is a fallacious notion that
when recovery of any incriminating articles was made from a
place which is open or accessible to others, it would vitiate
the evidence under Section 27 of the Evidence Act, any
object can be concealed in places which are open or
accessible to others. For example, if the article is buried in
26 CONF-1-2009
the main roadside or if it is concealed beneath dry leaves
lying on public places or kept hidden in a public office, the
article would remain out of the visibility of others in normal
circumstances. Until such article is disinterred, its hidden
state would remain unhampered. The person who hid it alone
knows where it is until he discloses that fact to any other
person. Hence, the crucial question is whether it was
ordinarily visible to others. If is not, then it is immaterial that
the concealed place is accessible to others."
In the case in hand also the wrapper was found in thorny
bushes away from the main road and it was found only after the place
was pointed out by the accused. So in our view, the prosecution has
proved seizure of the wrapper of chocolate Art. No.15 under
panchnama Exh. 26. This is an additional circumstance against the
accused. It might be a fact that similar wrapper of chocolate is a
common article. But the fact that such wrapper was found consequent
to the disclosure statement made by the accused is of great significance.
30 Learned APP further submitted that in case of seizure of
wrapper, not only the evidence of panch witness PW 10 Nivrutti can be
27 CONF-1-2009
relied upon but the evidence of police officer on the said aspect can also
be relied upon to support the seizure. She has placed reliance on a
decision of the Supreme Court in the case of Akamal Ahmad Vs State
of Delhi reported in (1999)3 SCC 337 wherein it was held that the
evidence of police officer relating to seizure can be safely relied upon.
In the said case, the Supreme Court relied on the factum of seizure of
revolver only on the basis of evidence of PW 8 who was a Sub-Inspector
of Police whose evidence was not supported by any other witness other
than police personnel.
She also placed reliance on a decision in the case of
Lopchand Naruji Jat & Anr Vs State of Gujarat reported in (2004) 7
SCC 566 wherein the Supreme Court observed that when the
investigating officer was found to be trustful and in spite of incisive
cross-examination, nothing material has been brought to discredit his
evidence, the trial court was justified in recording conviction on his
evidence alone.
31 Mr. Apte submitted that when the body of Chakuli was found
on 29.10.2007 at that time, the body was in a highly decomposed state.
He submitted that fleshy part of face was decomposed, thus, it was not
28 CONF-1-2009
possible for anyone to identify the body. He has placed reliance on a
decision in Ravindra Prakash and Another Vs. State of Haryana reported
in (2002) 8 SCC 426. In the said case, it was observed that body was
found in highly decomposed state and looking to the state of
decomposition, identification was not acceptable. In such case, the link
in the chain of circumstances was broken. However, on careful perusal
of the said decision, it is noticed that in the said case there was a
material discrepancy between the height of the dead body stated by the
Doctor and height of the person mentioned in the complaint to be
missing. Hence, the Supreme Court observed that in such case, it was
incumbent on the part of the witness identifying the dead body to state
how he recognized the dead body and as PW 3 and PW 4 have not
stated so, hence, the identification of the dead body which was in highly
decomposed state, was found to be unreliable.
32 In reply, the learned APP submitted that even though the
body was de-composed, PW 9 Ashok and PW 4 Sangita who were
parents of Chakuli, have identified the dead body to be that of Chakuli.
She stated that they being the parents of the deceased girl, they would
be in a position to identify that dead body was that of their daughter
Chakuli. PW 9 Ashok has stated that he had identified the dead body on
29 CONF-1-2009
the basis of bangles (article 6 and 12) in the left hand, frock (article 10),
knicker (article 5) which were lying near the dead body. Looking to the
evidence in this case, the decision in the case of Ravindra Prakash
(supra) is distinguishable on facts.
33 The learned APP placed reliance on a decision reported in
the case of State of H.P. Vs Vilas Maruti Sutar reported in 1998 S.C.C.
(Cri) 354 wherein the Apex Court has accepted the identification of dead
body by relatives of deceased on the basis of clothes on the dead body.
In the said case, mother of the deceased identified those clothes which
were on the person of the deceased. The Apex Court held that
identification of the dead body on the basis of clothes could not be
doubted. The learned APP also relied on the case of Atmaram
Shende Vs State of Maharashtra reported in 2001(5) Bom. C.R. 334
wherein this Court observed that identification of the dead body by the
witnesses on the basis of clothes cannot be doubted. She submitted
that the parents of Chakuli identified the dead body from the clothes and
bangles, which identification can be safely relied upon.
34 Reliance was also placed by the learned APP on a decision of
the Supreme Court in the case of Gokaraju Raju Vs State of A.P.
30 CONF-1-2009
reported in 1993 Supp(4) SCC 191. In the said case, the learned
counsel had contended that the identity of the dead body was highly
doubtful because the dead body was found in a highly decomposed
state and that the identity of the deceased was beyond recognition. It
was contended that simply because some wearing apparels could be
recognized by the relations lying near the dead body, it cannot be held
beyond all reasonable doubt that the dead body of the deceased was
recognized. In the said case, the Supreme Court did not accept the
submissions made by the learned counsel for the accused that the
factum of murder could not be established beyond reasonable doubt
because the body exhumed was highly decomposed and could not be
properly identified. The Supreme Court observed that the father and
near relations had identified the body and it appears that despite
decomposition,it was possible to be identified by near and dear ones.
35 Mr. Apte submitted that PW 9 Ashok has not identified the
body from the features of the face but from the bangles found in the
hands of the dead body and clothes found at the spot. Mr Apte drew our
attention to the missing report (Exh.24) lodged by PW 9 Ashok wherein,
it is stated that Chakuli was wearing a chocolate colour T-shirt and
knicker of black colour whereas on the spot, what was found was a
31 CONF-1-2009
green and red colour dress and underwear which was not black in
colour. He submitted that clothes found at the spot did not tally with the
description of the clothes given in the missing complaint, in such case, it
cannot be said that the dead body was that of Chakuli.
36 It is to be noted that it is nobody's case that any other girl
than Chakuli was missing from the village so that it is possible that the
dead body might be of some other girl. It cannot be said that the body
was of some other girl from any neighbouring village and it was brought
to Nerli village by some one. So there is no force in the contention that
the dead body was not that of Chakuli.
It can be seen from the evidence on record that PW 9 Ashok
Kamble, who lodged missing report had come back home from his place
of work in another village at about 7.30 to 8.00 p.m. and casually saw
that Chakuli was playing outside the house. At that time, it would be
dark. He gave a cursory look towards her during such night hours.
Thus, it is possible that he may not have noticed what was the exact
dress on the person of Chakuli when she was playing outside the house.
That is why he might have stated in the missing report " T " shirt in place
of frock and might have stated about the colour which he recollected
having seen during that night. In our view, it is not a material
32 CONF-1-2009
contradiction. That apart, it is natural that the mother will have more
knowledge and information about the dress on the person of her
daughter than the father. Moreover, PW 4 Sangita (mother) PW 9
Ashok (father) categorically stated that on the basis of the frock, nicker,
bangles i.e. article Nos. 10, 5 and 6 to 12 they identified the dead body
as that of Chakuli. It is most pertinent to note that during the cross-
examination of these witnesses, it is no where suggested that the dead
body was not that of Chakuli. Thus, looking to the evidence on record,
we have no manner of doubt that the dead body was that of Chakuli.
37 Mr. Apte submitted that no semen was found on the clothes
of the accused or the deceased. So also no semen was found in the
vaginal smear, swab and the nail clippings of Chakuli. Thus, the
prosecution case that rape was committed on Chakuli is totally false.
As far as offence of rape is concerned, it is not necessary that there
should be presence of any semen. Even partial penetration amounts to
an offence of rape. In a decision in State of U.P. Vs. Babul Nath;
(1994) 6 SCC 29, it is held that " i ngredients which are essential for
proving a charge of rape are the accomplishment of the act with force
and resistance. To constitute the offence of rape neither Section 375 of
IPC nor the Explanation attached thereto require that there should
necessarily be complete penetration of the penis into the private part of
33 CONF-1-2009
the victim/prosecutrix. In other words to constitute the offence of rape it
is not at all necessary that there should be complete penetration of the
male organ with emission of semen and rupture of hymen. Even partial
or slightest penetration of the male organ within the labia majora or the
vulva or pudenda with or without any emission of semen or even an
attempt at penetration into the private part of the victim would be quite
enough for the purpose of Sections 375 and 376" . So also in State of
Himachal Pradesh Vs. Raghubir Singh; (1993) 2 S.C.C. 622, the
Supreme Court observed in para 6 that the absence of spermatozoa
could not be at all said to be a circumstance in favour of the accused.
38 As far as the offence of rape is concerned, the evidence of
PW 23 Dr. Reshma Patil who carried out post mortem examination on
the dead body of Chakuli shows that Chakuli was raped. Dr. Patil stated
that on external examination she noticed perineum tear at middle about
1 cm. And infiltration of blood in subcutaneous tissue around injury. The
injury noticed by this witness was ante mortem. This witness further
stated that on internal examination, she noticed tear of hymen with injury
to perineum. The post mortem report is at Exh.63. The medical
evidence thus totally supports that Chakuli was subjected to rape.
34 CONF-1-2009
39 The prosecution has examined PW 18 Dr. Mrunalini Patil who
has examined the accused and issued the report Exh.44 wherein she
has opined that the accused is capable of sexual intercourse, she has
further observed that she noticed one old scar admeasuring 0.3 x 0.1
over penis of accused and which might be 4 to 7 days old. It may be
noted that Chakuli was missing since the night of 24.10.2007 and the
accused was medically examined after his arrest on 29.10.2007. The
accused is a man of 24 years whereas Chakuli was a small girl of about
5 years. In such case, if rape is committed by him on Chakuli, there is
every possibility of injury to his private part. Though Dr. Patil has not
given any specific opinion whether that scar was the result of the rape,
but a 4 to 7 day old scar in the light of the other evidence on record
suggests that the accused must have committed rape on Chakuli on
24.10.2007. This injury on the private part of the accused is another
corroborative piece of evidence against the accused.
40 From the evidence of PW 23 Dr. Reshma Patil & the injuries
on the body of Chakuli, it can safely be concluded that Chakuli met a
homicidal death. In the opinion of PW 23 Dr. Reshma Patil, the cause of
death is throttling with multiple fracture of ribs. The said opinion is at
Exh. 64. The defence has not disputed that the death was homicidal in
35 CONF-1-2009
nature.
41 Learned APP stated that when the dead body was found,
some clothes of a girl and banyan of a male was found at the spot,
hence, a dog squad was called on the spot. She pointed out that after
taking initial sniff of banyan and knicker found on the spot, the dog led
upto the house of the accused and to the house of deceased which is
an incriminating circumstance against the accused.
It is a matter of record that when PW 6 Ravindra noticed the
dead body, he informed PW 4 Sangita and PW 9 Ashok, who identified
the dead body as that of Chakuli. The police were called and
accordingly, PW 3 ASI Chigari arrived at the spot who prepared inquest
panchnama Exh. 13 in presence of panch witness PW 2 Dipak. ASI
Chigari also requested for dog squad and accordingly, PW 19 ASI
Ramesh reached the spot. He is the head of tracking dog handler. He
categorically stated as to how he reached the spot at about 2 p.m. along
with dog `Chetak' and how after giving smell of one banyan and knicker
lying near the dead body, the dog set off and tracked upto the house of
the deceased. Smell of banyan was again given to the dog whereupon
36 CONF-1-2009
the dog tracked to the house of the accused. The dog was again taken
500 meters away and then smell of banyan was again given to the dog
and the dog again tracked to the house of the accused. Accordingly,
this witness prepared the report Exh. 46. It may be noted here that
though PW 2 Dipak was panch for the inquest and spot panchnama, he
was also cross-examined on the point of dog tracking . He has also
stated how the dog after taking smell of banyan tracked upto the house
of the deceased and then to the house of the accused. The evidence of
PW 19 ASI Ramesh is also corroborated by the evidence of PW 3 ASI
Chigari and PW 9 Ashok Kamble. On that basis, after making inquiry
with PW 9 Ashok Kamble and PW 4 Sangita, ASI Chigari then lodged
the complaint against the accused. On the point of evidence of tracker
dog, the learned APP referred to the case of Pandian Kanappan Nadar
Vs. State of Maharashtra reported in 1993, Cri. Law Journal page 3883
wherein in relation to the evidentiary value of dog tracking evidence, it is
observed as under:
" J udicial notice must be taken of the fact that the training
skills and the special qualities that are found in the police and the special
qualities that are found in the police Dogs are now recognized as being
of such a high caliber that in case such as detection of explosives, drugs
etc. they are found superior and more effective than the most
37 CONF-1-2009
sophisticated instruments. In this background, one needs to take
cognizance of the fact that for the purpose of tracking down a criminal,
that special faculties, qualities and skills of the dog are aspects of which
serious note must be taken. Where the police rely on such evidence,
Courts would be more than fully justified in accepting it provided that it
passes the test of complete scrutiny" .
42 She also placed reliance on a decision of this Court in the
case of Babu Magbul Shaikh Vs The State of Maharashtra reported in
1993(3) Bom.C.R. 309 wherein it is observed as under:
"It is scientifically accepted that dogs are rated as extremely
intelligent animals and that some of their sensibilities are very
highly developed and are extremely reliable. It is also to be
noted that there are some breeds of dogs and some strains
which are specifically utilized for hunting and tracking because
of their abnormally high talents. If the dog belongs to one of
these categories and if it is shown to the Court that it has been
specially trained for purposes of detection, not only would the
dog tracking evidence be admissible, but it will have to be
relied upon as being evidence of a very high caliber."
43 Mr. Apte pointed out that panch witness PW 2 Dipak has
stated that police collected all the articles found on the spot inclusive of
banyan of a male person and a knicker separately in plastic bags, then
38 CONF-1-2009
the articles were sealed, after that the articles were not opened in his
presence. After the panchnama the police and other persons dispersed
from the spot. Pointing out this statement, Mr. Apte vehemently argued
that then there is no question of tracker dog coming to the spot and
taking smell of these two articles i.e. banyan and knicker as by then the
banyan and knicker had already been sealed. However, it is noted
that, in his further cross-examination itself PW 2 Dipak has stated that,
the police had already brought dog squad at the spot and the dog sniffed
clothes and thereafter the dog led to the house of Chakuli and then to
the house of the accused. Thus, we do not find any contradiction in the
evidence. It may be noted here that though PW 2 Dipak was panch for
the inquest and spot panchnama, he was cross-examined on the point of
dog tracking also. He has also stated how the dog after taking smell of
banyan tracked upto the house of the deceased and then to the house of
the accused. In view of the evidence of this witness, it cannot be said
that as the articles were already packed and sealed, it was not possible
for the dog to smell the clothes and lead the police to the house of the
accused.
44 Mr. Apte submitted that according to the prosecution, the
sniffer dog came to the spot at about 2 p.m. He submitted that this case
39 CONF-1-2009
of the prosecution cannot be believed as the spot panchnama which was
carried out from 1.10 p.m. to 2.15 p.m. does not mention the presence of
tracker dog. As far as this submission is concerned, it is observed that
spot panchnama is prepared in relation to what was seen on the spot of
the incident and hence, only those details would be mentioned in the
panchnama. Moreover, dog squad came at about 2 p.m. as this has
nothing to do with the spot panchnama it would not find mention in the
spot panchnama. Thus, we find no merit in this submission.
45 Mr. Apte submitted that there is no evidence to show that
banyan found at the spot belonged to the accused as no witness has
identified the said banyan belonged to the accused. No doubt, no
witness has identified that banyan belonged to the accused but the dog
when given smell of the banyan, tracked upto the house of the accused.
In his statement under Section 313 of Cr.P.C. accused has nowhere
stated that the banyan found on the spot did not belong to him.
46 Mr. Apte, learned counsel for the accused thereafter
submitted that the Dog tracking evidence is necessarily evidence of a
weak character and that the Court should not place any reliance on it.
He has submitted that there are various possibilities whereby this
40 CONF-1-2009
evidence could go wrong. Mr. Apte has submitted that in the present
case the theory of dog tracking, cannot be relied upon as it would be
difficult to believe such tracking. To support this submission, he has
placed reliance on the decision in Abdul Razak Murtaza Dafadar Vs.
State of Maharashtra, reported in AIR 1970 SC 283 wherein it was held
that " the tracker dog's evidence cannot be likened to the type of
evidence accepted from scientific experts describing chemical reactions,
blood tests and the actions of bacilli, because the behaviour of
chemicals, blood corpuscles and bacilli contains no element of
conscious volition or deliberate choice. Dogs are intelligent animals with
many thought processes similar to the thought processes of human
beings and wherever there are thought processes there is always the
risk of error, deception and even self-deception. In the present state of
scientific knowledge evidence of dog tracking, even if admissible, is not
ordinarily of much weight."
It is pertinent to note that these observations were by way of
obiter. Their Lordships however, did not express any concluded opinion
or lay down any general rule with regard to tracker dog evidence or its
significance or its admissibility as against the accused. Thus, this
decision will be of no help to the accused.
It is also observed in the aforesaid decision in Abdul Razak
41 CONF-1-2009
(supra) that " a survey of the cases however, reveals that most Courts in
which the question of the admissibility of evidence of trailing by blood-
hounds has been presented take the position that upon a proper
foundation being laid by proof that the dogs were qualified to trail human
beings, and that the circumstances surrounding the trailer were such as
to make it probable that the person trailed was the guilty party, such
evidence is admissible and may be permitted to go to the jury for what it
is worth as one of the circumstances which may tend to connect the
defendant with the Crime."
Thus, it is noticed that it is observed that as far as dog
tracking evidence is concerned, it can be one of the circumstances,
which may tend to connect the accused with the crime.
47 Mr. Apte has further placed reliance on a decision in Surinder
Pal Jain Vs. Delhi Administration, reported in AIR 1993 SC 1723,
wherein it was held that " t he possibility that the entire case was built up
after the dogs of the dog squad pointed towards the appellant cannot be
ruled out. Since, the appellant had slept in the verandah near the cot
where the dead body of his wife was found, had locked the collapsible
door with the recovered lock before going to sleep and had himself been
close to the dead body before the police came, the picking up of smell by
42 CONF-1-2009
the dogs and pointing towards the accused could not be said to be a
circumstance which could exclude the possibility of guilt of any person
other than that of the appellant or be compatible only with hypothesis of
guilt of the appellant. The pointing out by the dogs could as well lead to
a misguided suspicion that the appellant had committed the crime. The
explanation of the appellant regarding the injuries on his person as
having been caused by the police is also quite plausible" . However, as
the facts in the case relied upon are entirely different from the present
case, this decision can have no application to the present case.
48 Thereafter, Mr. Apte placed reliance on a decision in Gade
Lakshmi Mangraju alias Ramesh Vs. State of A.P. reported in AIR 2001
SC 2677 wherein the Supreme Court observed that the evidence based
on sniffer dogs has inherent frailties. The possibility of error on the part
of the dog or its master is the first among them. The possibility of
misunderstanding between the dog and its master is close to its heels.
The possibility of a misrepresentation or a wrong inference from the
behaviour of the dog could not be ruled out. The last, but not the least,
is the fact that from a scientific point of view, there is little knowledge and
much uncertainty as to the precise faculties which enable police dogs to
track and identify criminals. Police dogs engaged in these actions by
43 CONF-1-2009
virtue of instincts and also by the training imparted to them. Criminal
Courts need not bother much about the evidence based on sniffer dogs
although we cannot disapprove the investigating agency employing such
sniffer dogs for helping the investigation to track down criminals. Thus, it
is seen that the Apex Court has observed that sniffer dogs can be
employed for investigation purpose.
49 In Gade Laksmi, the Supreme Court observed that as per the
dog handler, PW 14 after the dog smelt the dead body and materials at
the scene of offence, it led them to the house of the accused no.1 and
scratched the ground and barked. Thereafter, it went to the house of the
accused no.2 and stopped near the door of the house and scratched.
This evidence was found not sufficient to show that there was any
positive identification of the criminal by the police dog. It was observed
that as the house of the accused no.1 is next to the house of deceased,
possibility of the dog stopping in front of the house of the accused no.1
cannot be ruled out. In their view, in the absence of incriminating
materials like dog actually catching hold of the accused, this material
was insufficient to hold that the dog had pointed out the accused as
culprits. The Supreme Court further observed that what is surprising is
the admission of the Investigating Officer and the mahazar witnesses
44 CONF-1-2009
that no article belonging to the accused was found lying near the dead
body; if that is so, it is rather improbable for the sniffer dog to catch the
smell of the accused and track them down. Hence, in the peculiar facts
of that case the Supreme Court observed that this evidence of the
prosecution relating to identification of the accused by the dog was very
weak.
50 It is worthwhile to note that in Gade Lakshmi, it is also
observed that " t here are basically three kinds of police dogs- the tracker
dogs, the patrol dogs and sniffer dogs, Recent trends show that hounds
belonging to certain special breeds sheltered in specialized kennels and
imparted with special training are capable of leading investigating
agency to very useful clue in crime detection and thereby help detectives
to make a breakthrough in investigation. English Courts have already
started treating such evidence as admissible. In Canada and in
Scotland such evidence has become, of late, admissible though in
United States the position is not uniform in different States" . Thus, on
going through this decision, it cannot be said that use of sniffer or
tracking dogs is a worthless or futile exercise.
51 Mr. Apte has also placed reliance on a decision in Sridhara
45 CONF-1-2009
and another Vs. State of Karnataka reported in 2005 Cri. L.J. 3014
wherein the evidence of dog tracking was not relied upon. The tracker
dog's evidence was not relied upon as the dog after smelling dead body
stopped near accused persons house situated nearby and the dog did
not actually catch the accused persons. Moreover, the Court observed
that " n o articles belonging to accused were found near dead body,
hence, it is improbable for sniffer dog to track smell of accused, hence,
the dog tracking evidence was not
ig relied upon." However, in the
present case, banyan of a male was found near the dead body, after
giving smell of the banyan to the dog, it led to the house of the accused.
In the case relied upon, no article of the accused was found at the spot.
Moreover, in the present case the accused was not in the house, hence,
there was no question of the dog catching the accused. Thus, this
decision being distinguishable on facts, would not apply to the present
case.
52 Judicial thinking worldwide, even in the U.K. has undergone a
complete change and later judicial decisions from all over indicate that
the courts have taken cognizance of certain other factors the first of
them being that as far as the tracker dog is concerned, it happens to be
an animal of a particular pedigree which is selected on its special
46 CONF-1-2009
qualities such as skill, alertness and intelligence. It is not that any and
every dog is picked up by the police for these purposes. There are
special rules which prescribe the manner in which the dog is required to
be selected. In this context, we may refer to the Maharashtra State
Police Dog Squad Manual, a perusal of this indicates that not only is the
dog very carefully selected but that it goes through a rigorous process of
training at the hands of experts. Its training takes place over a period of
time where the dog is made absolutely proficient in the finer points of
detection by experts in the field on the basis of well settled principles of
training. Even after the skills are communicated to the dog, it is put
through a rigorous process of exercise in order to satisfy the police
authorities that the dog has not only learnt but is able to carry out these
skills with a high degree of precision, and that it does not go wrong,
under any circumstances. In the course of daily training the dog is put
through regular exercises in order to eliminate any possibility of an error.
We need to also observe that judicial notice must be taken of the fact
that the training skills and special qualities that are found in the Police
Dogs are now universally being recognized as being of such a high
caliber that in cases such as detection of explosive drugs etc., they are
found superior and more effective than the most sophisticated
instruments. In this background, one needs to take cognizance of the
47 CONF-1-2009
fact that for the purpose of tracking down a criminal, special faculties,
qualities and skills of the dog are aspects of which note must be taken.
One needs to take cognizance of this factor. It would be extremely
difficult under these circumstances and on this ground to brush aside
this evidence. We need to record in this context that we are not placing
complete and implicit reliance with regard to the identification of accused
only on the dog tracking evidence. We have accepted this last head of
evidence in addition to the earlier evidence in so far as it completely
supports the same.
53 To support his contention that evidence of sniffer dog
cannot be relied upon, Mr. Apte also placed reliance on the observations
in the case of Dinesh Borthakuar Vs. State of Assam reported in (2008)
5 SCC 697 wherein it was observed that " c onviction of the accused on
the major ground of sniffer dog going near the appellant was held
improper" .
54 In the present case, the conviction is most certainly not based
only or mainly on the dog tracking evidence. There are various other
circumstances which have been proved against the appellant, which we
have discussed in detail above. Hence, we do not feel it necessary to
48 CONF-1-2009
rely on the evidence of dog tracking except to feel that it leads further
assurance to the circumstances already proved.
55 Where the entire case hinges on circumstantial evidence,
great care must be taken in evaluating circumstantial evidence to ensure
that the circumstances on which the prosecution relies are wholly
consistent with the sole hypothesis of the guilt of the accused. When a
case rests on circumstantial evidence, such evidence must satisfy oft
quoted tests viz: (1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established; (2) those
circumstances should unerringly point towards the guilt of the accused;
(3) the circumstances taken cumulatively should form a chain so
complete that there is no escape from the conclusion that within all
human probabilities the crime was committed by the accused and none
else; (4) the circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis than
that of the guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should also be inconsistent
with his innocence.
56 Legal principles with regard to circumstantial evidence in
49 CONF-1-2009
criminal trial have been explained by the Supreme Court time and
again. A recent case in a long line of cases being Pawan and Ors Vs
State of Uttaranchal, 2009(3) Bom.C.R. (Cri.) 194 which has more or
less reiterated the principles in an earlier decision of the Supreme Court
in the case of Shankarlal Gyarasilal Dixit Vs State of Maharashtra,
1980 Criminal Law Journal 325 : 1981(2) SCC 35. In the said case,
the Supreme Court observed as under:
"....It is not to be expected that in every case depending on
circumstantial evidence, the whole of the law governing
cases of circumstantial evidence should be set out in the
judgment. Legal principles are not magic incantations and
their importance lies more in their application to a given set
of facts than in their recital in the judgment. The simple
expectation is that the judgment must show that the finding
of guilt, if any, has been reached after a proper and careful
evaluation of circumstances in order to determine whether
they are compatible with any other reasonable hypothesis."
It needs to be emphasized that while evaluating circumstantial
evidence, which of course has to be done carefully, the circumstances
must be of such a nature as to be capable of supporting the exclusive
hypothesis that the accused is guilty of the crime of which he is charged
and the circumstances so shown by the prosecution are compatible with
no other reasonable hypothesis. Keeping these principles in mind, we
50 CONF-1-2009
have evaluated the evidence.
57 In addition to the six circumstances mentioned in para 5
above, which have been relied upon by the prosecution, we find that the
accused has not made any attempt at all to explain in any manner, the
incriminating circumstances against him, which were brought to his
notice. Most of these circumstances are such that they could have been
explained only by the accused and none else. However, he has failed to
give any explanation or clarification. In this connection we may refer to
the evidence of PW 11 Vandana who has categorically stated that at
about 8.00 p.m. the accused called Chakuli towards him and gave her a
chocolate. Thereafter the accused and Chakuli went towards Shirol
Nala side. The accused has not given any explanation as to where
Chakuli went thereafter or where he left Chakuli thereafter. Throughout
to all the questions asked to the accused under Section 313 of Cr.P.C.
he has replied either in the negative or he has stated that he did not
know anything. In Amit alias Ammu VS. State of Maharashtra reported
in (2003) 8 SCC 93, the accused was convicted of rape and murder.
The circumstantial evidence was that accused was seen together with
the victim a young school girl of about 11 to 12 years, by two witnesses.
The Supreme Court observed that close proximity of place and time
51 CONF-1-2009
between the event of the accused having been last seen with the victim
girl and factum of death, in such circumstances, the burden was on the
accused to explain how and in what circumstances, the girl suffered
death. No explanation was offered by the accused in statement under
Section 313 of Cr.P.C. In such case, the conviction for rape and murder
came to be upheld.
58 Learned APP drew our attention to the fact that the accused
in his statement under Section 313 of Cr.P.C. has not provided any
explanation but he has only answered, " I do not know" or " I t is false" .
She submitted that this fact provides a link in the chain of incriminating
circumstances against the accused. She placed reliance on a decision
of the Supreme Court in case of Joseph s/o. Kooveli Poulo Vs State
of Kerala reported in (2000)5 SCC 197 wherein it is observed as under:
"During the time of questioning under Section 313 Cr. P.C.,
the appellant instead of making at least an attempt to
explain or clarify the incriminating circumstances inculpating
him, and connecting him with the crime by his adamant
attitude of total denial of everything when those
circumstances were brought to his notice by the Court not
only lost the opportunity but stood self-condemned. Such
incriminating links of facts could, if at all, have been only
explained by the appellant, and by nobody else, they being
personally and exclusively within his knowledge. Of late,
52 CONF-1-2009
courts have, from the falsity of the defence plea and false
answers given to court, when questioned, found the missing
links to be supplied by such answers for completing the
chain of incriminating circumstances necessary to connect
the person concerned with the crime committed.
That missing link to connect the accused-appellant, we find
in this case provided by the blunt and outright denial of
every one and all the incriminating circumstances pointed
out which, in our view, with sufficient and reasonable
certainty on the facts proved, connect the accused with the
death and the cause for the death of Gracy.
59 Similar view has been taken by the Supreme Court in
Damodar Vs. State of Karnataka reported in (2000) 10 Supreme
Court Cases 328 and in the case of State of Maharashtra Vs Suresh
(2000)1 SCC 471.
On this point we may also refer to the decision in the case of
Deonandan VS. State of Bihar, reported in AIR 1955 SC 801 wherein it
is observed that " s uch absence of explanation or false explanation
would itself be an additional link which completes the chain. We find that
these decisions are all perfectly applicable to the present case.
60 In the present case, since the prosecution has established
last seen together theory, a burden is cast upon the accused to prove
53 CONF-1-2009
that in what circumstances and when he parted company with deceased.
He has to explain as to how and when parted company as required
under Section 106 of the Evidence Act. Unfortunately, he has not given
any explanation. If we have a look to his statement under section 313 of
Cr.P.C. the accused has nowhere explained this aspect. In such
circumstances, it can safely be said that he has not discharged the
burden cast upon him. When the said fact was within the special
knowledge of the accused, he was under obligation to explain to show
his innocence, but unfortunately, he has not discharged this onus. We
may advantageously quote a ruling reported in case of Ranjyotsingh
Gurudayalsingh Vs. State of Maharashtra, 2009 Cri. L.J. 2530. In that
matter, it was argued that circumstance that the accused was last seen
together with deceased at the International Air Port at Delhi on
12.2.2001, is not sufficient to bring home the charge of murder because
over 60 hours had elapsed thereafter until his body was found at
Mumbai on 15.2.2001. It has been urged that the prosecution has not
been able establish as to what transpired in the interregnum, etc. we
would like to refer hereto paragraph 25 of this citation, which reads as
under:
" S ection 106 of the Evidence Act provides that when any fact
is especially within the knowledge of any person, the burden
54 CONF-1-2009
of proving that fact is upon him. In several recent decisions,
the Supreme Court has held that the principles which
underlies Section 106 of the Evidence Act can be applied in
the context of the last seen theory when certain facts are
especially within the knowledge of a person. In the State of
Rajasthan Vs. Kashi Ram (2006) 12 SCC 254: (AIR 2007 SC
144), the Supreme Court held as follows:
" T hus, if a person is last seen with the deceased,
he must offer an explanation as to how and when he parted
company. He must furnish an explanation which appears to
the Court to be probable and satisfactory. If he does so he
must be held to have discharged his burden. If he fails to
offer an explanation on the basis of facts within his special
knowledge, he fails to discharge the burden cast upon him by
Section 106 of the Evidence Act. In a case resting on
circumstantial evidence if the accused fails to offer a
reasonable explanation in discharge of the burden placed on
him, that itself provides an additional link in the chain of
circumstances proved against him. Section 106 does not shift
the burden of proof in a criminal trial, which is always upon
the prosecution. It lays down the rule when the accused does
55 CONF-1-2009
not throw any light upon facts which are specially within his
knowledge and which could not support any theory or
hypothesis compatible with his innocence, the Court can
consider his failure to adduce any explanation as an
additional link which completes the chain" .
In the above case, the Supreme Court followed its
earlier decisions in Joseph Poulo Vs. State of Kerala (2000)
5 SCC 197 : (AIR 2000 SC 1608) and Sahadevan Vs. State
(2003 1 SCC 534: AIR 2003 SC 215). We have in the
preceding paras reproduced the observations in Joseph
Poulo.
In Sahadevan's case, the Supreme Court held thus:
" T herefore, it has become obligatory on the
appellants to satisfy the Court as to how, where and in what
manner Vadivelu parted company with them. This is on the
principle that a person who is last found in the company of
another, if later found missing, then the person with whom he
was last found, has to explain the circumstances in which
they parted company. In the instant case, the appellants
have failed to discharge this onus. In their statements under
56 CONF-1-2009
Section 313 of Cr.P.C. they have not taken any specific stand
whatsoever" .
The principle of law which has been laid down in the citations
quoted above squarely applies on all fours to this case. It is obvious
from the evidence in this case, which we have discussed above, that the
accused was seen in the company of the deceased by Pws 11, 12, 13
and 16 on 24.10.2007 at about 8 to 8.30 p.m. It needs to be noted that
this factual aspect has not even been denied by the defence. We may
state at the risk of repetition that when the accused parted company of
the deceased, where the accused and/or deceased went thereafter has
remained unexplained. In fact, it was his duty to explain all these facts in
detail, as required under section 106 of Evidence Act. So also, as stated
earlier, the facts and principles of citation (supra) squarely applies to this
case. We would like to reproduce few lines and the observations from
paragraph 26 in the case of Ranjyotsingh Gurudayalsingh Vs. State of
Maharashtra, which are as under:
" T here is absolutely no reason or justification to discard the
testimony of PW 8. The defence of appellant in his statement
under section 313 is one of a blunt and complete denial.
What happened after the evening of 12.2.2001, particularly
57 CONF-1-2009
when if at all the appellant parted with company with the
deceased, were facts within the special knowledge of the
appellant. It was for the appellant to explain those facts, but
he chose instead a complete denial in his statement under
section 313 of Cr.P.C. 1973. The additional link that connects
the appellant with the crime and completes the chain is
provided by his blunt and outright denial of every one of the
incriminating circumstances. It was for the appellant who was
last seen in the company of the deceased to explain the
circumstances in which they parted company. The failure of
the appellant to do so must weigh in the balance as a failure
to explain facts which were within his special knowledge" .
61 As against all these incriminating circumstances, there is no
probable or plausible explanation given by the accused as to why all
these witnesses are deposing falsely against him. The accused in his
statement under Section 313 of Cr.P.C. has tried to make out a case that
he had some dispute with one Appaso Dhangar in relation to work done
for him by the accused. Appaso is the brother of landlord of PW 9
Ashok, therefore, he is falsely implicated in this case. It is pertinent to
note that it is nowhere suggested to any witness except PW 12
58 CONF-1-2009
Gangubai that they are relatives of Appasaheb or that they are deposing
falsely at his instance. It is the case of the accused that he had dispute
with one Appasaheb Dhangar and he lodged N.C. Case against
Appasaheb. The accused has produced on record in defence at Exh. 71
the extract of N.C. Case register of Karveer Police Station at Sr. No. 985
relating to an entry dated 12.12.2006 wherein the accused is the
complainant and one Appa Pujari is shown as accused. The incident is
dated 12.12.2006 and the details given are that some amount was due
from Appasaheb to accused on account of work of excavation of pit and
when accused demanded that amount Appasaheb abused him and
threatened to assault him. According to the accused, Appasaheb is the
brother of Narayan and Narayan is the landlord of PW 9 Ashok Kamble.
It is difficult to believe that on the basis of such dispute Appasaheb
would falsely implicate the accused in this crime with the help of all
these witnesses. Moreover, the incident relating to Appaso was a trivial
dispute over some small amount of money, which incident had taken
place on 12.12.2006 i.e. more than 10 months prior to the incident which
took place on 24.10.2007 It cannot be believed that the whole village
will go against the accused on account of such flimsy dispute at the
instance of Appasaheb. So such explanation on the face of it is
unacceptable and clearly appears to be an after thought. In view of the
59 CONF-1-2009
incriminating facts and circumstances as discussed above, it can safely
be concluded that they are incompatible with innocence of the accused
or guilt of any other person.
62 Keeping in mind the legal principles in relation to
circumstantial evidence, we are of the opinion that the circumstances
taken cumulatively form a chain which is so complete that it leads to the
conclusion that within all human probabilities, the crime was committed
by the accused and none else. On going through the evidence adduced
by the prosecution, we find that there is sufficient evidence to sustain a
conviction under Sections 302, 376(2)(f), 363 and 201 of IPC which
leaves for our consideration that all important question that is, whether
the death sentence should be confirmed.
63 A convict hovers between life and death when the question of
gravity of the offence and award of adequate sentence comes up for
consideration. Mankind has shifted from the state of nature towards a
civilized society and it is no longer the physical opinion of the majority
that takes away the liberty of a citizen by convicting him and making him
suffer a sentence of imprisonment. Award of punishment following
conviction at a trial in a system wedded to the rule of law is the outcome
60 CONF-1-2009
of cool deliberation in the court room after adequate hearing is afforded
to the parties, accusations are brought against the accused, the
prosecuted is given an opportunity of meeting the accusations by
establishing his innocence. It is the outcome of cool deliberations and
the screening of the material by the informed man i.e the Judge that
leads to determination of the sentence.
64 The principle of proportion between crime and punishment is
a principle of just desert that serves as the foundation of every criminal
sentence that is justifiable. As a principle of criminal justice it is hardly
less familiar or less important than the principle that only the guilty ought
to be punished. Indeed, the requirement that punishment not be
disproportionately great, which is a corollary of just desert, is dictated by
the same principle that does not allow punishment of the innocent, for
any punishment in excess of what is deserved for the criminal conduct is
punishment without guilt.
65 The criminal law adheres in general to the principle of
proportionality in prescribing liability according to the culpability of each
kind of criminal conduct. It ordinarily allows some significant discretion to
the Judge in arriving at a sentence in each case, presumably to permit
61 CONF-1-2009
sentences that reflect more subtle considerations of culpability that are
raised by the special facts of each case. Judges in essence affirm that
punishment ought always to fit the crime; yet in practice sentence are
determined largely by other considerations. Sometimes, it is the
correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes, the desirability of keeping him out of circulation.
66 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 defenceless
girl and thereafter murdered her, it calls only for the death penalty. She
placed reliance on a decision of the Supreme Court in the case of
Dhananjay Chatterjee Vs State of West Bengal reported in (1994) 2
SCC 220 wherein it is observed as under:
"In our opinion, the measure of punishment in a given case
must depend upon the atrocity of the crime, the conduct of the
criminal and the defenceless and unprotected state of the
victim. Imposition of appropriate punishment is the manner in
which the courts respond to the society's cry for justice
against the criminals. Justice demands that courts should
impose punishment befitting the crime so that the courts
reflect public abhorrence of the crime. The courts must not
only keep in view the rights of the criminal but also the rights
of the victim of crime and the society at large while
62 CONF-1-2009
considering imposition of appropriate punishment."
Learned APP pointed out that in the said case, the accused
who was a security guard had committed rape on a school going girl and
thereafter, murdered her. The Supreme Court observed that a cold
blooded preplanned brutal murder, without any provocation, after
committing rape on an innocent and defenceless young girl by the
security guard certainly makes this case a "rarest of rare case" which
calls for capital punishment. In that case, the accused was a security
guard of the building in which the deceased resided, hence, he was duty
bound to protect her. The accused in the present case is not similarly
situated, hence, this case is distinguishable on facts.
67 On the point of death sentence, the learned APP placed
reliance on a decision of the Supreme Court in the case of State of U.P.
Vs Satish reported in (2005)3 SCC 114. She pointed out that in the
said case, the accused had committed rape on a minor girl of about six
years of age and thereafter, committed murder of the girl. While
confirming the death sentence, the Supreme Court observed that the
case falls in the rarest of rare category and death sentence awarded by
trial court was appropriate.
63 CONF-1-2009
68 The learned A.P.P. also placed reliance on another decision
of the Supreme Court in the case of Shivaji @ Dadya Shankar Alhat
Vs State of Maharashtra reported in (2008) 15 SCC 269 wherein the
accused had committed rape and murdered a young girl of 9 years of
age. After referring to Bachan Singh Vs State of Punjab reported in
(1980) 2 SCC 684 and Machi Singh Vs State of Punjab reported in
(1983) 3 SCC 470, the Supreme Court held that the case at hands falls
in the rarest of the rare category and calls only for death sentence.
69 Learned A.P.P. submitted that the victim in the present case
is an innocent child and as the accused was known to her, he was like
an uncle to her and hence, the accused was in a dominating position.
She submitted that in such case, when the victim was an innocent child,
death sentence is called for. She placed reliance on the decision in the
case of Sushil Murmu Vs State of Jharkhand reported in AIR 2004 SC
394.
70 Lastly, on the point of death sentence, reliance was placed by
learned A.P.P. on a decision of the Supreme Court in the case of
Sevaka Perumal & Anr Vs State of Tamil Nadu reported in (1991) 3
64 CONF-1-2009
SCC 471 wherein it is observed as under:
"Therefore, undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine the
public confidence in the efficacy of law and society could not
long endure under serious threats. If the courts did not protect
the injured, the injured would then resort to private vengeance.
It is, therefore, the duty of every court to award proper sentence
having regard to the nature of the offence and the manner in
which it was executed or committed etc."
However, this decision is entirely dissimilar to the facts in the
present case. As in the case of Sevaka Perumal, murder of four young
innocent boys was committed by the accused persons. The crime of
murder was committed by the accused for gain as a means of living.
Such are not the facts in the present case, hence this decision would be
of no help to the learned A.P.P.
71 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 or confirmed. 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:
65 CONF-1-2009
1) Mohammed Chaman Vs. State (N.C.T. Of Delhi); (2007) 2 S.C.C. 28;
2) Amit alias Ammu Vs. State of Maharashtra; (2003) 8 S.C.C. 93;
3) Surendra Pal Shivbalakpal Vs. State of Gujarat; (2005) 3 S.C.C. 127;
4) The State of Maharashtra Vs. Mansingh;(2005) 3 S.C.C. 131;
5) Rahul alias Raosaheb Vs. State of Maharashtra; (2005) 10 S.C.C.
323;
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.
72 So far as decision in 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
66 CONF-1-2009
about 30 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.
73 In Amit alias Ammu, 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.
74 In Surinder Pal Jain (supra), the accused had raped a minor
girl and committed her murder. In the said case, the accused
committed rape on a minor girl and thereafter, threw her body into a
pond. The Supreme Court reduced the death sentence to life
imprisonment. The Supreme Court observed that " t he 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
67 CONF-1-2009
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.
75 Reliance was placed by Mr. Apte on a decision in State of
Maharashtra Vs. Mansingh reported in (2005) 3 SCC 131. 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:
" N ow 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."
76 In Rahul alias Raosaheb (supra), the accused 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
68 CONF-1-2009
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 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 and the facts in the
present case are absolutely similar. Here also the accused is aged 23
years. The age of the victim girl is also similar 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 submitted that this is a fit case to reduce the
sentence of death to life imprisonment.
77 The crime committed is undoubtedly serious and heinous and
the conduct of the appellant is reprehensible. It reveals a dirty and
perverted mind of a human being who has no control over his carnal
69 CONF-1-2009
desires. Then the question is: whether the case can be classified as of a
" r arest of rare" category justifying the severest punishment of death.
Testing the case on the touchstone of the above decisions and
balancing the aggravating and mitigating circumstances, we are not
persuaded to accept that the case can be appropriately called one of the
" r arest of rare cases" deserving death penalty. We are 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.
78 We do not think that this is a " r arest of rare case" in which
death penalty should be imposed on the appellant. We say so because
the case of the appellant and Rahul (supra) is identical. The appellant
was aged 23 years at the time of the occurrence and there is no
evidence that the appellant had been involved in any other criminal case
previously. The appellant is a poor labourer 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. We confirm conviction of the
70 CONF-1-2009
appellant on all the counts, but the sentence of death penalty imposed
on him for the offence under Section 302 IPC is commuted to life
imprisonment.
79 Though we are not inclined to confirm the sentence of death
and are instead inclined to commute it to life imprisonment, however,
we are inclined to make the sentences of imprisonment under Sections
302 and 376 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 Karnataka reported in AIR 2008 SC
3040. In the said case also the accused had been sentenced to death.
The Supreme Court felt that it was not a fit case to award a death
sentence but the Supreme Court observed that a sentence of life
imprisonment which, subject to remission, normally works out to a term
of 14 years would be grossly disproportionate and inadequate. The
Supreme Court further observed that in such case, the court's
option is limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more than 14 years
and the other death, in which case the Court may feel tempted and find
itself nudged into endorsing the death penalty. Such a course would
indeed be disastrous. A far more just, reasonable and proper course
71 CONF-1-2009
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 ig Court substituted the death sentence
by imprisonment for life and directed the accused shall not be released
from prison till the rest of his life.
80 We may also make useful reference to two decisions of the
Supreme court i.e Ronny Vs State of Maharashtra, (1998) 3 SCC
625 and Ravindra Trimbak Chouthmal Vs State of Maharashtra, (1996)
4 Supreme Court Cases 148. 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
72 CONF-1-2009
after the sentence of life imprisonment is over. So also, in the case of
Ravindra Chouthmal (Supra), the Supreme Court directed that the
sentence of seven years RI for the offence under section 201 of the
I.P.C. be directed to run consecutively after the sentence of life
imprisonment had run its course. In the case of Ravindra Chouthmal,
the accused had murdered his wife and thereafter to cause the evidence
of the crime to disappear, he had cut the body and thrown it in the creek.
In decision dated 7.9.2010 in Confirmation Case No. 4 of
2009 (The State of Maharashtra Vs. Kamlakar Tanaji Shinde), the
Division Bench of this Court directed that sentence of imprisonment
under Section 364 of IPC shall be served after serving sentence of
imprisonment under Section 302 of IPC. Similar view was taken by this
Court in its judgment dated 23rd April, 2010 in Criminal Appeal No. 760
of 2003, Sunil Anandrao. Sawant Vs Government of Maharashtra
[Coram : Smt. Ranjana Desai & Smt. V.K. Tahilramani, JJ] wherein this
Court directed the sentence of three years RI under Sections 307 shall
run consecutively after serving the sentence for the offence of murder.
82 There can be no doubt that the offence committed by the
appellant deserves severe condemnation and is a heinous crime, but
73 CONF-1-2009
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 confirm the sentence of death and instead
for the offence under Section 302, we are inclined to sentence the
accused to life imprisonment and 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
1. The conviction of the accused under Sections 302, 376(2)(f), 363
and 201 of IPC is maintained.
2. The sentence of imprisonment and fine and in default sentence
under Section 376(2)(f), 363 and 201 is maintained.
3. The sentence of death is commuted to life imprisonment, in
addition thereto, fine of Rs. 1000/- in default simple imprisonment
for two months.
74 CONF-1-2009
4. The sentence of imprisonment under Section 376(2)(f) of IPC
shall run after serving the life sentence under Section 302 of IPC.
5. The sentence of imprisonment under Sections 363 and 201 of IPC
shall run concurrently with above sentences of imprisonment.
6. Thus, the reference is answered accordingly and appeal is partly
allowed.
[SMT. RANJANA DESAI, J.]
[ SMT. V.K.TAHILRAMANI, J.]
