Bombay High Court
Chandrabhan @ Aaba Jagan Salunke vs The State Of Mah on 18 December, 2015
Bench: S.V. Gangapurwala
crapl485.12
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 485 OF 2012
Chandrabhan @ Aba Jagan Salunke
Age 25 years, Occ.
R/o. Baudh Wada, Chincholi
Tq. Yawal, District Jalgaon ...Appellant
versus
The State of Maharashtra
Through the PSO,
Yawal Taluka Police Station,
Yawal, District Jalgaon ...Respondent
.....
Mr. N.B. Suryawanshi, advocate for the Appellant
Mr. D. R. Kale, A.P.P. for respondent-State
.....
CORAM : S. V. GANGAPURWALA AND
V. K. JADHAV, JJ.
Date of Reserving
the Judgment : 26.11.2015
Date of pronouncing
the Judgment : 18.12.2015
JUDGMENT (PER V.K. JADHAV, J.) :-
1. In this appeal, the challenge is to the judgment and order of
conviction and sentence passed by the learned Additional Sessions
Judge, Jalgaon, dated 8.6.2012 in Sessions case No. 183 of 2011,
thereby convicting the appellant/accused Chandrabhan @ Aba
Jagan Salunke, for the offence punishable under Section 363 of
I.P.C. and sentencing him to suffer R.I. for seven years and to pay
crapl485.12
fine of Rs.1000/-, i/d to suffer further R.I. for six months, for the
offence punishable under Section 376 of I.P.C. and sentencing to
suffer imprisonment for life and to pay fine of Rs.5000/-, i/d to suffer
R.I. for one year, for the offence punishable under section 302 of
I.P.C. and sentencing to suffer imprisonment for life and to pay fine of
Rs.5000/-, i/d to suffer R.I. for one year and for the offence
punishable under Section 201 of I.P.C. and sentencing to suffer R.I.
for seven years and to pay fine of Rs.1000/- i/d to suffer R.I. for one
year. The learned Additional Sessions Judge Jalgaon further
directed that the substantive sentenced shall run concurrently.
2. The prosecution version, as unfolded during trial, is as under:-
The parents of victim Chandni were residing at Surat. Due to
their poor financial condition, the victim Chandni alongwith her sister
Pooja were residing with maternal grand father P.W.3 Prakash
Tayade at village Chincholi, Tq. Yawal, District Jalgaon. On
10.3.2011, deceased Chandni was playing with her girlfriend P.W.2
Manisha Salunke. At that time, the accused came near them and
offered gram to them on condition that if they accompany him.
Thereafter, the accused lifted deceased Chandni in his arms and
started proceeding towards the field. P.W.2 Manisha Salunke had
also started following the accused for the said gram, however, the
crapl485.12
accused drove her away. P.W.2 Manisha then returned to her house
and reported the incident to P.W.4 Ashabai Kisan Salunke. At that
time, P.W.3 Prakash Tayade also came there. P.W.4 Ashabai also
gave him the above information. Consequently, they proceeded in
search of deceased Chandni. During the course of search, they
reached near the field of Vasant Shimpi. They saw the accused in
frightened condition with no shirt on his person and he was running
towards the village. The villagers were also in the searching team
and they tried to catch the accused. However, the accused
succeeded in running from that place. Dead body of deceased
Chandni was found at about 2.00 to 2.30 p.m. in a well situated in the
field of said Vasant Narayan Shimpi. Accordingly, the matter was
reported to police station, Yawal.
3. P.W.8 P.I. Ramdas Patil of Yawal police station, after
registering A.D. Exh.17 had rushed to the spot of incident and
removed the dead body from well. He also drew inquest panchnama
at Exh.12 in presence of Panch witnesses. The dead body was sent
to rural hospital Yawal for postmortem. During the course of
postmortem, the Medical Officer P.W.1 Dr. Vinayak Mahajan found
that deceased Chandni was subjected to rape before her death.
Cause of her death was asphyxia due to drowning. P.W.3 Prakash
Tayade then lodged complaint Exh.13 on the same day. On the
crapl485.12
basis of his complaint, Crime No. 25 of 2011 came to be registered
for the offences punishable under Sections 302, 376, 363, 201 of
I.P.C. P.W.8 - P.I. Ramdas Patil took over the investigation of crime.
4. On completion of investigation, P.W.8 P.I. Ramdas Patil has
submitted charge sheet against the accused and since the offence
alleged to have been committed by the accused are exclusively
triable by the Court of Sessions, the case was committed to the Court
of Sessions. In order to substantiate the charges levelled against the
accused, the prosecution has examined in-all eight witnesses. The
learned Additional Sessions Judge, Jalgaon, by its impugned
judgment and order dated 8.6.2012 in Sessions Case No. 183 of
2011, convicted the accused for the offences punishable under
Sections 376, 363, 302, 201 of I.P.C. as detailed above.
5. The learned counsel for the appellant submits that the
prosecution case rests merely on circumstancial evidence, most
particularly, on the last seen theory. The learned counsel further
submits that last seen theory come into play where time gap between
the time when the accused and deceased were lastly seen alive and
when the deceased is found dead is so small and the possibility of
any person other than the accused being the author of the crime
become impossible. The learned counsel thus submits that as per
crapl485.12
the admission given by the child witness P.W.2 Manisha, she was
playing with the deceased in the morning time on the day of incident
and the incident allegedly happened in the afternoon. The dead body
of deceased was found at about 2.30 p.m. in a well situated in the
field of one Vasant Shimpi. Learned counsel further submits that
there is long gap and the possibility of other persons coming in
between exists. In absence of any other positive evidence to
conclude that the accused and the deceased were last seen together
before the death, it would be hazardous to come to the conclusion of
guilt of the accused. The learned counsel further submits that dead
body of deceased Chandni was found floating on water in the well at
about 2.30 p.m. Even accepting the evidence of P.W.2 Manisha that
she was playing with the deceased in the morning time, most
probably in between 9.00 to 11.00 a.m., and thereafter the accused
lifted deceased Chandni and went towards field, it is very unlikely on
the part of the accused to remain in the field of said Vasant Shimpi till
the body floats on water in the well.
6. Learned counsel further submits that the submerged body may
take certain hours to come to the surface. In this backdrop, evidence
of P.W.3 Prakash and P.W.4 Ashabai, who stated to have seen the
accused at about 2.00 to 2.30 p.m. in a frightened condition without
having shirt on his person running away from the field of Vasant
crapl485.12
Shimpi, where the dead body of deceased was traced out in a well,
looses its credence. Learned counsel thus submits that it is very
unlikely on the part of the accused to remain in the same field where
the well is situated till the body floats on water and then to leave that
place in suspicious condition, inviting the attention of searching team.
Learned counsel thus submits that the inference of guilt can be
justified only when all the incriminating facts and circumstances are
found to be incompatible with the innocence of the accused. The
learned counsel further submits that the circumstances relied upon
by the Court below are not cogently and firmly established and the
circumstances brought on record are having no definite tendency
unerringly pointing towards guilt of the accused. Learned counsel
further submits that there is no complete chain of circumstantial
evidence to draw the conclusion that within all human probability, the
crime was committed by the accused and none else.
7. Learned counsel for the appellant submits that though the
accused was subjected to medical examination, medical certificate
was not produced on record. Learned counsel further submits that
the deceased Chandni was 7 years old and medical Officer P.W.1
Dr. Mahajan has noticed labial contusion on the genital of deceased
Chandni and her hymen was ruptured. Learned counsel for the
appellant submits that report submitted to the police on the basis of
crapl485.12
which A.D. was registered initially, even though P.W.3 Prakash
Tayade met the person who has submitted A.D. report to the police
and disclosed to him about the presence of the accused near the
spot and running away from the spot in suspicious condition, the
same does not find place in the A.D. report. Learned counsel thus
submits that since medical certificate is not produced on record it
shall be presumed that there were no injuries on the male organ of
the accused and it thus falsified the prosecution story about
commission of offence of rape by the accused.
8. Learned counsel for the appellant, in support of his arguments,
places reliance on the following judgments:-
I) State of Maharashtra vs. Annappa Bandu Kavatage,
reported in 1979 (4) SCC 715
II) Jaharlal Das vs. State of Orissa, reported in AIR 1991 SC
III) Ashish Batham vs. State of Madhya Pradesh, reported in
2002 (7) SCC 317
IV) State of H.P. vs. Amrish Kumar, reported in 2009 CRI.L.J.
V) Roop Singh alias Rupa vs. State of Punjab, reported in 2008
AIR SCW 4251
crapl485.12
VI) Ashok Baburao Kadam vs. State of Maharashtra, reported in
1991 (3) Bom. C.R. 95
VII) Shankarlala Gyarasilal Dixit vs. State of Maharashtra,
reported in AIR 1981 SC 765(1).
Learned counsel further submits that the accused is entitled for
benefit of doubt and he may be acquitted.
9.
The learned A.P.P. submits that the main circumstance
pointing out involvement of the accused in the crime is last seen
circumstance. The learned A.P.P. submits that P.W.1 Dr. Mahajan
has noticed 7 abrasions over the dead body of deceased Chandni
i.e. over forehead, over right elbow, over left elbow, over left side of
back, over left side of wrist, over left knee joint and over right leg.
P.W.1 Dr. Mahajan has made it clear that all above abrasions were
reddish brown in colour and all abrasions probably were caused
within 12 hours. P.W.1 Dr. Mahajan has also opined about sexual
assault on the deceased. There was labial contusion and her hymen
was ruptured. In his opinion, the cause of death is asphyxia due to
drowning before 10 to 12 hours of the postmortem. The postmortem
report is marked at Exh.6. The learned A.P.P. further submits that
considering the time of conducting postmortem examination on the
dead body, the probability of death of the victim was in the afternoon
crapl485.12
on 10.3.2011 i.e. day of the incident.
10. The learned A.P.P. further submits that the main witness on
the point of last seen is P.W.2 Manisha Salunke. She has positively
deposed that the accused came there when she was playing
alongwith deceased Chandni and accused took away Chandni with
him by offering her gram. Learned A.P.P. further submits that P.W.2
Manisha Salunke has deposed that accused took Chandni with him
by lifting her and accused did not allow P.W.2 Manisha to
accompany them. The accused drove her away. Learned A.P.P.
further submits that the time gap when the accused and deceased
were last seen alive and when the deceased is found dead is so
small, that possibility of any other person other than the accused
being the author of crime becomes impossible. Learned A.P.P.
further submits that the period of floating of dead body on the surface
of water depends upon various factors, such as, age, sex, condition
of body, season of the year and water. The learned A.P.P.
vehemently submits that the accused at about 2.00 to 2.30 p.m.
found in frightened condition without having any shirt on his person
running away from the field of Vasant Shimpi where the dead body of
deceased was traced out in the well. The villagers accompanying the
searching team tried to catch him, however, he succeeded in running
away.
crapl485.12
11. The learned A.P.P. submits that frightened condition of the
accused running away from the spot supports the theory of last seen,
as deposed by the child witness P.W.2 Manisha Salunke. The
learned A.P.P. further submits that the accused was last seen with
the deceased and it was for the accused to offer explanation as to
how and when he parted the company of the deceased. The accused
himself has to furnish explanation which should be probable and to
the satisfaction of the Court and if he fails to offer such explanation
on the basis of the facts within his special knowledge, he fails to
discharge the burden cast upon him by Section 106 of the Evidence
Act. The learned A.P.P. thus submits that failing to offer reasonable
explanation itself provides an additional link in the chain of
circumstances proved against the accused in the present case. The
learned A.P.P. further submits that the clothes of the accused, which
consist of shirt and pant, came to be seized during the course of
investigation under seizure panchnama Exh.24. In the light of C.A.
report Exh.30, 31, and 32, there were human blood stains on the
clothes of accused. The learned A.P.P. further submits that the
prosecution has established a complete chain of circumstantial
evidence. The learned Judge of the trial court has thus rightly
convicted the accused and the appeal is therefore, liable to be
dismissed.
crapl485.12
12. Deceased Chandni, aged 7 years, was the victim of
kidnapping, rape and murder. The sole appellant was convicted for
the offences punished under sections 363, 376 and 302 of I.P.C. by
the Sessions Court. The entire prosecution case depends on
circumstantial evidence and the submission of learned counsel for
the appellant is that the circumstantial evidence is insufficient to bring
home the guilt of the accused. Learned counsel for the appellant
places his reliance on the judgment of the Supreme court in the case
of Jaharlal Das vs. State of Orissa (referred supra) wherein the
Hon'ble Apex Court has referred the cases of appreciation of
evidence of the prosecution case rests upon circumstantial evidence.
It is observed that if the case rests upon circumstantial evidence, to
sustain the conviction, it must satisfy three conditions; (i) the
circumstances from which an inference of guilt is sought to be drawn
must be cogently and firmly established; (ii) those circumstances
should be of a definite tendency unerringly pointing towards the guilt
of the accused; (iii) the circumstances taken cumulatively should
form a chain so complete that there is no escape from the conclusion
that within all human probability the crime was committed by the
accused and none else and it should also be incapable of
explanation on any other hypothesis than that of the guilt of the
accused.
crapl485.12
13. In the leading case Hanumant vs. State of Madhya Pradesh,
reported in AIR 1952 SC 343, it is also cautioned thus:-
" In dealing with circumstantial evidence there is
always the danger that conjuncture or suspicion may take
the place of legal proof. It is therefore, right to remember
that in cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of
guilt is to be drawn should in the first instance be fully
established and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency, and they should be such
as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence
so far complete as not to leave any reasonable ground for
a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human
probability the act must have been done by the accused."
14. In the case in hand, the trial court has placed reliance on the
following circumstances; (i) the accused and deceased Chandni were
last seen together; (ii) the accused under pretext of offering gram
(Harbhara) took deceased Chandni with him and asked P.W.2
Manisha Salunke, with whom deceased Chandni was playing, to go
crapl485.12
away to her home and for that purpose driven out said P.W.2
Manisha Salunke; (iii) the accused lifted deceased Chandni and went
away; (iv) thereafter at 2.30 p.m. dead body of deceased Chandni
was found floating on the water in the well situated in the field of
Vasant Shimpi, (v) the accused fled away from the field of Vasant
Shimpi half naked i.e. without shirt upon upper half of the body in
frightened and suspicious condition when a team consisting of grand
father and other villagers was making search of deceased Chandni,
(vi) the deceased Chandni was subjected to sexual assault, rape and
her cause of death is "asphyxia due to drowning", (vii) there were
human blood stains on the pant of accused and (viii) the accused has
offered no explanation as to how and when he parted the company of
deceased Chandni and he fails to offer such explanation on the facts
within his special knowledge, which provides an additional link in the
chain of circumstances against the accused.
15. P.W.2 Manisha Salunke is a child witness. In the case in
hand, the competency of P.W.2 Manisha Salunke as a witness is not
challenged. It also appears that the learned Judge of the trial court
has recorded his opinion after putting questions to test whether
P.W.2 Manisha Salunke is competent witness. The learned Judge of
the trial court has recorded opinion that P.W.2 Manisha Salunke is
giving rational answers and in his opinion, she is competent witness
crapl485.12
to depose. Even the learned Judge has recorded that the witness
understood the sanctity of oath and therefore, the oath is
administered to her. No doubt, the evidence of child witness is to be
taken with great caution. Real test for accepting or rejecting the
testimony is how the consistent story is narrated by the child witness,
how it stands the test of cross examination and how far it fits with rest
of evidence and circumstances of the case. We must state here that
nothing was brought in the cross examination of the witness that she
being a child witness, there was infirmity in her understanding of the
facts perceived and her ability to narrate the same correctly.
16. We have carefully scrutinized the evidence of P.W.2 Manisha
Salunke. Her evidence is consistent and she has deposed that on
the day of the incident at about 9.00 a.m. she was playing with
deceased Chandni after Chandni returned from the school. She has
further deposed that she knows the accused, who also resides in
village Chincholi. She further states that the accused came on the
spot, where they were playing and accused thereafter asked Chandni
to accompany with him as he would offer her Harbhara (gram). She
has further deposed that accused asked her to go away to her
house. Accused took deceased Chandni with him and she was
driven out. The accused lifted deceased Chandni and went away.
P.W.2 Manisha Salunke thereafter went to P.W.4 Ashabai and
crapl485.12
informed her that the accused had taken Chandni with him. The
evidence of P.W.2 Manisha does not give any expression of being
tutored and her statement was corroborated by two other witnesses.
P.W.4 Ashabai has deposed that P.W. 3 Prakash Tayade resides
adjacent to her house. She deposed that on the day of incident when
she was present in her house P.W.2 Manisha informed her that when
P.W.2 Manisha and deceased Chandni were playing in front of their
houses, the accused came there and took deceased Chandni with
him. P.W. 3 Prakash Tayade has deposed that P.W.4 Ashabai and
P.W.2 Manisha informed him that accused had taken away deceased
Chandni with him and he went towards the field. On the basis of this
information, P.W.3 Prakash Tayade, P.W.4 Ashabai and other
villagers started taking search of deceased Chandni. We find that
P.W.2 Manisha stood to the test of cross examination successfully
and there is absolutely no infirmity in her evidence. Her evidence is
fully corroborated by P.W. 4 Ashabai and P.W.3 Prakash Tayade on
material points. The evidence of P.W.2 Manisha Salunke is cogent
and clear and there appears no exaggeration in her evidence. The
name of P.W.2 Manisha @ Ranu is also mentioned in the complaint
Exh.13 to the effect that she had informed the complainant Prakash
Tayade that accused took deceased Chandni and went towards the
field and she was driven out.
crapl485.12
17. P.W.2 Manisha Salunke was studying in 2nd standard at the
relevant time. In view of this, much importance cannot be given to the
timings given by this witness during her examination. Furthermore,
even though the school timings are up to 5.00 p.m. it is not expected
from the children studying in 1st or 2nd standards to attend the school
till its closure. P.W.2 Manisha has deposed that at about 9.00 a.m.
she was playing with deceased Chandni. It is thus possible that
deceased Chandni might have returned back from the school after
morning time and started playing with P.W.2 Manisha. There is no
time gap as such between deceased last seen together with the
accused and the death of deceased Chandni. Dead body of
deceased Chandni was found floating on the water of well at about
2.30 p.m. As per the postmortem report Exh.6, the postmortem was
carried out during the period from 8.00 p.m. to 10.00 p.m. on
10.3.2011 itself. P.W.1 Dr. Vinayak Mahajan has deposed that victim
might have died before 10 to 12 hours prior to post mortem. Thus,
the time gap when the accused and deceased Chandni were seen
last alive and when the deceased Chandni is found dead is so small,
the possibility that any person other than the accused being the
author of the crime becomes impossible.
18. P.W.3 Prakash Tayade and P.W.4 Asha Jadhav have deposed
that they have seen the accused at about 2.00 to 2.30 p.m. in
crapl485.12
frightened condition having no shirt on his person running from the
field of Vasant Shimpi, where the dead body of deceased was traced
out in the well. The learned counsel for the appellant has assailed
this circumstance on the ground that it is unlikely on the part of the
accused to stay in the land of Vasant Shimpi or near the well till
floating of dead body on the water of the well and inviting attention of
the villagers. Learned counsel further submits that one Anil Pralhad
Solunke has given information to the police at Exh.17. On the basis
of his report A.D. No. 18 of 2011 came to be registered at 16.15
hours, wherein no reference has been given to the fact that accused
was seen by the witness in suspicious condition running away from
the land of Vasant Shimpi. Learned counsel further submits that said
Anil Salunke met P.W.3 Prakash Tayade before submitting report
Exh.17.
19. On perusal of report Exh.17, it appears that said Anil Salunke
received information in the village and accordingly he went towards
well, where the dead body of deceased Chandni was floating on the
water in the well. Thereafter, he alone went to police station as the
mental condition of P.W.3 Prakash was not good and accordingly
informed the police about the incident. Said Anil Salunke was not
member of searching team and he had not personally seen the
accused running away from the land of Vasant Shimpi, as noticed by
crapl485.12
the members of the searching team. He has merely informed the
death of deceased Chandni to the police and accordingly the said
information was reduced into writing. On the basis of said
information, A.D. came to be registered. Only after the complaint
Exh.13 lodged by P.W.3 Prakash Tayade crime came to be
registered against the accused.
20. So far as the period of flotation of dead body on the surface of
water is concerned, the same depends upon age, sex, condition of
body, season of year and water. P.W.1 Dr. Mahajan on external
examination of dead body, found 7 injuries on the person of
deceased Chandni. All injuries were anti mortem in nature. There
was also labial contusion and her hymen was ruptured. According
to P.W.1 Dr. Mahajan, there was sexual assault on deceased
Chandni. P.W.1 Dr. Mahajan has opined that victim may fall
unconscious due to sexual assault, as the victim of a tender age of
just 7 years old, could not have in a position to resist the assault by
adult culprit of 25 years.
21. We have already observed that the time gap between the
deceased last seen alive in the company of accused and when the
deceased is found dead is small. There is no reason for P.W.3
Prakash Tayade and independent witness P.W.4 Asha Jadhav to
crapl485.12
depose falsely that they saw the accused having no shirt on his
person running towards village in frightened condition when they
went to the field of Vasant Shimpi in search of deceased Chandni.
They have stated that the villagers in the searching team, had tried to
catch the accused but he ran away. Their evidence is consistent on
material aspects and there is nothing in their cross examination to
disbelieve them. There is no substance in the submission that it is
unlikely on the part of accused to remain in the field of Vasant Shimpi
till the dead body floats on water of well and after inviting the
attention of searching team, flee away from the spot. There is chain
of events starting from the point that the accused took away
deceased Chandni while lifting her in his arms from play ground till
her dead body was found floating on the water of well. The learned
Judge of the trial court has rightly concluded on the basis of the
above circumstances that after lifting the deceased from play ground
the accused must have committed rape upon her and committed her
murder by throwing away deceased Chandni in the well. The medical
evidence shows that deceased Chandni was subjected to sexual
assault and rape.
22. The prosecution has proved the seizure panchnama Exh.24
through P.W.7 Laxman Thosre. In the light of C.A. report at Exh. 30,
31 and 32, it is clear that there were human blood stains on the pant
crapl485.12
of accused near zip. It is true that the marks of external injuries have
not been found on the person of the accused but that by itself does
not negate the prosecution case. Even in case of child victim being
ravished by grown up person, it is not necessary that there should
always be marks of injuries on the penis in such case. The accused
was arrested on the next date of the incident and thus the minor
injuries even if caused might have been filled up in the meantime.
23.
The accused has offered no explanation as to how and when
he parted the company of deceased Chandni. The accused has
failed to offer such explanation on the facts within his special
knowledge. It was for the accused to explain as to what happened
when he lifted deceased Chandni and took her towards the field.
The accused must furnish explanation which appears to the court to
be probable and satisfactory. Since the accused has failed to offer
explanation in discharge of burden cast on him, that itself provides
additional link in the chain of circumstances proved against him and
that completes chain of circumstantial evidence established against
the accused. On the contrary, as it appears from the evidence of
P.W.2 Manisha that accused was intending to take deceased
Chandni alone with him and he just drove away P.W.2 Manisha. He
did not allow P.W.2 Manisha, who is of same age of deceased
Chandni, to accompany him. In the light of this circumstance, it was
crapl485.12
incumbent on the part of the accused to offer explanation as to why
he wanted to take away deceased Chandni alone with him and as to
when he parted her company.
24. In our considered opinion, the circumstances from which
inference of guilt is sought to be proved are cogently and firmly
established in this case. The circumstances proved are unerringly
point towards guilt of the accused and chain is so complete that there
is no escape from the conclusion that within all human probability the
crime was committed by the accused and none else.
25. In the circumstances, we find no fault in the impugned
judgment and order of conviction and sentence passed by the
learned Sessions Judge, Jalgaon in Sessions Case No. 183 of 2011.
There is no merit in the appeal, the appeal thus liable to be
dismissed.
26. We appreciate the able assistance rendered by Mr. N.B.
Suryawanshi, the learned counsel, appointed to prosecute the cause
of the appellant and we quantity his legal fees for Rs.7,000/- (Rupees
Seven thousand only) for the same.
crapl485.12
27. In the light of above, we pass the following order.
ORDER
Criminal appeal No. 485 of 2012 is dismissed.
( V. K. JADHAV, J.) ( S. V. GANGAPURWALA, J. )
rlj/
