Bombay High Court
Jawedkhan @ Tingrya Habibkha vs The State Of Mah on 8 March, 2016
Bench: A.V. Nirgude
1
Cri.Appeals 516, 281 n 468 of 2012.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 516 OF 2012
Jawedkhan @ Tingrya s/o Habibkhan,
Age: 50 years, Occu: Labour,
R/o. Dukhinagar, Tq. & Dist. Jalna. ... APPELLANT
(Original Accused No.1)
V E R S U S
The State of Maharashtra,
Through Jinsi Police Station,
Aurangabad, District Aurangabad. ... RESPONDENT
(Original Complainant)
...
Mr. M. A. Tandale, Advocate (appointed) for Appellant.
Mr. S. P. Sonpawale, APP for Respondent / State.
...
W I T H
CRIMINAL APPEAL NO. 281 OF 2012
The State of Maharashtra,
Through Jinsi Police Station,
Aurangabad. ... APPELLANT
(Original Complainant)
V E R S U S
1) Jawedkhan @ Tingrya s/o Habibkhan,
Age 47 years, R/o Dukhinagar,
Taluka and District Aurangabad.
2) Pradip s/o Askaran Chandaliya,
Age 47 years, R/o. Pundliknagar,
Aurangabad.
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Cri.Appeals 516, 281 n 468 of 2012.odt
3) Ram s/o Sheshrao Bodkhe,
Age 32 years, R/o Raje Sambhaji
Colony, Jadhavwadi, Aurangabad. ... RESPONDENTS
(Original Accused)
...
Mr. S. P. Sonpawale, APP for Appellant / State.
Mr. M. A. Tandale, Advocate (appointed) for Respondent No.1.
Mr. N. S. Ghanekar, Advocate for Respondent Nos.2 and 3.
...
A N D
CRIMINAL APPEAL NO. 468 OF 2012
The State of Maharashtra,
Through Jinsi Police Station,
Aurangabad, District Aurangabad. ... APPELLANT
(Original Complainant)
V E R S U S
1) Jawedkhan @ Tingrya s/o Habibkhan,
Age 47 years, R/o Dukhinagar,
Taluka and District Jalna.
2) Pradip s/o Askaran Chandaliya,
Age 47 years, R/o. Pundliknagar,
Aurangabad.
3) Ram s/o Sheshrao Bodkhe,
Age 32 years, R/o Raje Sambhaji Colony,
Jadhavwadi, Aurangabad. ... RESPONDENTS
(Original Accused)
...
Mr. S. P. Sonpawale, APP for Appellant / State.
Mr. M. A. Tandale, Advocate (appointed) for Respondent No.1.
Mr. N. S. Ghanekar, Advocate for Respondent Nos.2 and 3.
...
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Cri.Appeals 516, 281 n 468 of 2012.odt
CORAM : A. V. NIRGUDE &
INDIRA K. JAIN, JJ.
RESERVED ON : 22nd January, 2016.
PRONOUNCED ON : 8th March, 2016.
J U D G M E N T : ( Per Indira K. Jain, J. )
+
. These three appeals arise out of judgment and order
passed on 24th January, 2012 by the learned Additional Sessions
Judge-3, Aurangabad in Sessions Case No.463 of 2009. By the
said judgment and order Accused No.1 Jawedkhan, Accused No.2
Pradip Chandaliya and Accused No.3 Ram Bodkhe were
convicted and sentenced for various offences as under :
Accused No.1 Jawedkhan :
Conviction under Sentence
Section
456 Rigorous Imprisonment for one year and fine
of Rs.300/- in default Simple Imprisonment for
ten days.
457 Rigorous Imprisonment for three years and
fine of Rs.300/- in default Simple
Imprisonment for ten days.
458 Rigorous Imprisonment for three years and
fine of Rs.300/- in default Simple
Imprisonment for ten days.
Cri.Appeals 516, 281 n 468 of 2012.odt
392 read with Rigorous Imprisonment for seven years and
397 fine of Rs.300/- in default Simple
Imprisonment for ten days.
302 Imprisonment for life and fine of Rs.300/- in
default Simple Imprisonment for ten days.
376 Rigorous Imprisonment for ten years and fine
of Rs.300/- in default Simple Imprisonment for
ten days.
201 Rigorous Imprisonment for one year and fine
of Rs.300/- in default Simple Imprisonment for
ig ten days.
Accused No.2 Pradip Chandaliya :
Conviction under Sentence
Section
411 Fine of Rs.1000/- in default Simple
Imprisonment for fifteen days.
Accused No.3 Ram Bodkhe :
Conviction under Sentence
Section
411 and 414 Fine of Rs.1000/- each in default Simple
Imprisonment for fifteen days each.
Cri.Appeals 516, 281 n 468 of 2012.odt
2. Learned Additional Sessions Judge found that
Accused were not guilty of some of the offences alleged against
them and accordingly acquitted the Accused as under :
Accused Acquittal under sections
Accused No.1 Jawedkhan 394 and 459
Accused No.2 Pradip Chandaliya 412, 414, 109 and 212
Accused No.3 Ram Bodkhe 412, 109 and 212
3.
Criminal Appeal No.281 of 2012 is by the State of
Maharashtra for enhancement of sentence awarded by the Trial
Court. Criminal Appeal No.468 of 2012 is also by the State of
Maharashtra against the order of acquittal. Accused No.1
Jawedkhan being aggrieved by the judgment and order of
conviction has preferred Criminal Appeal No.516 of 2012.
4. The instant case reveals a sordid story in which the
alleged brutal sexual assault on a young helpless girl followed by
merciless murder by dastardly act of the Accused is said to have
been committed. Most disgusting feature is that an innocent
college going girl of 21 year fell a prey to the unbridled lust of the
Accused. The story sends shocking waves to everyone having
slighted sense of human value and dignity.
Cri.Appeals 516, 281 n 468 of 2012.odt
5. Factual matrix of prosecution case may be stated in
brief as under -
i. Complainant Aniket Shankarrao Deshpande was
resident of Purwa Apartment situated at Ahinsa
Nagar, opposite Akashwani, Aurangabad and
was serving in Sterlight Technology Company
situated at MIDC Waluj, Aurangabad. Mansi 21
year old sister of Aniket was residing with him.
She was studying in IInd year B.C.S. in MGM
College, Aurangabad. Aniket and Mansi lost
their mother in 2006. At the time of incident their
father was posted at Shrinagar.
ii. On 11th June, 2009, Aniket left for office at
around 09:00 am. Mansi was alone in the
house. Aniket was to return home from work at
07:00 pm. He could not return on time as some
problem had cropped up in one machine and he
was required to over stay in the company to
attend the problem of machine. Aniket came
back home on 12th June, 2009 at 05:00 am. He
Cri.Appeals 516, 281 n 468 of 2012.odt
called Mansi on her mobile at around 05:00 am.
Her phone was switched off. For 5 to 10
minutes Aniket knocked the door. He did not
receive any response from Mansi so again he
phoned her. He thought that Mansi might be
fast asleep and her mobile battery might have
discharged. So instead of disturbing Mansi he
went to the house of his friend Vivek Agrawal
who was residing in Bhagyanagar at
Aurangabad. Till 09:00 am to 09:30 am Aniket
slept at the house of his friend. By that time
Vivek had already left to his workplace. Aniket
then locked the door of the house of his friend
and came to his house at around 10:00 am.
iii. Aniket noticed that house was closed from
inside. He knocked the door and also called his
sister on phone but he did not receive any
response. After few minutes as the door was
not opened Aniket suspected something wrong
and went down stair to the house of owner
Cri.Appeals 516, 281 n 468 of 2012.odt
Bankar Patil. Aniket was staying on the first
floor. He informed the owner of the house that
he wanted to climb from the grill of their
Varandha in order to go to his house. Then he
climbed the grill and went to the gallery of his
flat. He noticed that door of the room attached to
balcony was opened. He entered the drawing
room and then to bedroom of Mansi.
iv. Aniket was shocked to see Mansi lying on the
bed in injured condition. Her hands were tied
with wire of headphone of mobile and legs were
died with big scarf of Mansi. Aniket found bed-
sheet covered around her face. He removed the
bed-sheet and saw no clothes on her person.
He noticed injury to her neck and profused
bleeding. A screw driver and a scissor were
lying there. Many articles in the house were
found scattered.
v. Aniket was frightened and immediately rushed to
his neighbour Mrs.Soni. Mrs.Soni accompanied
Cri.Appeals 516, 281 n 468 of 2012.odt
Aniket. She called other neighbourers. Aniket
called his friend Vivek Agrawal and Vishal for
help. He asked Mr. Khadke who was providing
tiffin to him and residing in the next apartment, to
come with doctor immediately. Mr. Khadke then
came with doctor. In the meanwhile Police were
informed. Police also rushed to the house.
Doctor examined her and declared that she died
before 3-4 hours.
vi. Aniket lodged report with the police station.
Crime No.65 of 2009 was registered at Jinsi
Police Station under Section 302 and 201 of the
Indian Penal Code. Police took dead body in
custody. It was sent for postmortem to Ghati
Hospital. Before referring the dead body for
postmortem, inquest Panchanama was drawn by
P.S.I. Akmal in the presence of Panch
witnesses. P.S.I. Akmal seized black mobile,
one scarf, one T-shirt, one blood stained bracier
under separate Panchanama. Inquest
Cri.Appeals 516, 281 n 468 of 2012.odt
Panchanama and seized articles were handed
over by P.S.I. Akmal to PW-32 Investigating
Officer Sopan Borse.
vii. PW-32 P.I. Sopan Kisan Borse was entrusted
with the investigation of crime. He visited the
spot. At the time of recording scene of
occurrence Panchanama, blood stained bed-
sheet, scissor, screw driver, green Salvar and a
nicker were seized. Photographs were taken.
Statements of witnesses were recorded.
viii. On 13th June, 2009, blood sample of Mansi,
pubic hair, vaginal swab preserved by Medical
Officer at the time of performing postmortem,
viscera and seized clothes of Mansi were sent to
Forensic Science Laboratory Mumbai for
analysis and DNA test to find out whether girl
was ravished.
ix. During investigation supplementary statement of
Aniket was recorded. In his supplementary
statement Aniket informed Police that Mansi was
Cri.Appeals 516, 281 n 468 of 2012.odt
having a mobile phone and he did not find her
mobile phone in the room. A.P.I. Gautam Patare
attached to Chavni Police Station was
conversant with cyber crimes. Three teams
were formed for further investigation. It was
revealed that Mansi had purchased mobile from
Zee Corner Mobile Shop. Statements of PW-6
Sheetal Satish Sonawane friend of Mansi who
accompanied her to purchase a mobile and
mobile shop owner PW-18 Abdul Rauf came to
be recorded. A receipt regarding purchase of
mobile by Mansi was collected. A.P.I. Patare
obtained information from Airtel company on the
basis of IMEI number mentioned on the receipt
regarding purchase of mobile. From IMEI
number of mobile of Mansi, it could be revealed
that said IMEI number was visible on the mobile
having simcard number "9503667292". From
tower location A.P.I. Patare could also know the
spot from where mobile was being used. It was
from hotel Pancham.
Cri.Appeals 516, 281 n 468 of 2012.odt
x. A.P.I. Patare then visited hotel Pancham.
Accused No.2 Pradip Chandaliya was present.
Mobile was seized from Accused No.2 under
seizure Panchanama.
xi. Accused No.2 Pradip Chandaliya was
interrogated regarding possession of mobile with
him. Accused No.2 informed police that his son
Mayur had given a simcard to him and a
customer Jawedkhan @ Tingrya gave him the
mobile towards a bill of his hotel. Information in
respect of mobile purchased by Mansi as per the
receipt exactly tallied with the mobile seized
from Accused No.2 Pradip Chandaliya.
xii. On the basis of information received from
Accused No.2 Pradip Chandaliya, P.I. Borse
arrested Accused No.1 Jawedkhan on 22nd
June, 2009. Before arrest, Investigating Officer
confirmed from Jawedkhan whether he had
given the mobile to Pradip Chandaliya.
Jawedkhan admitted that he gave mobile to
Cri.Appeals 516, 281 n 468 of 2012.odt
Pradip Chandaliya.
xiii. After arrest Accused Jawedkhan was
interrogated. During interrogation it could be
revealed that gold ring of Aniket which was
found missing from the house was given by
Jawedkhan to Accused No.3 Ram Bodkhe
against some dues which Accused Jawedkhan
owed to Ram Bodkhe. On getting clue Accused
No.3 Ram Bodkhe was also arrested on 22nd
June, 2009.
xiv. Accused No.1 Jawedkhan was referred to Ghati
Hospital for medical examination. Medical
Officer was requested to take his blood, pubic
hair, semen sample and nail clippings.
Investigating Agency could recover the clothes
of Jawedkhan at his instance which clothes he
was wearing at the time of commission of
offence. Those clothes were concealed in
garbage just in front of the spot of incident. The
shirt of Accused Jawedkhan was stained with
Cri.Appeals 516, 281 n 468 of 2012.odt
blood.
xv. Accused No.3 Ram Bodkhe gave statement to
recover gold ring received by him from Accused
Jawedkhan. At the instance of Accused No.3,
gold ring of Aniket was recovered from a room of
electric motor near Tulsi Chambers. Its seizure
Panchanama was recorded.
xvi.
It appears that after the incident Accused
Jawedkhan changed his clothes and wore
clothes of Aniket. He had shown his readiness
to produce those clothes hidden in the garbage
near Tapadia Natyagraha. Memorandum of
Accused Jawedkhan was accordingly recorded
and clothes of Aniket were recovered at the
instance of Accused Jawedkhan. Investigating
Agency then forwarded clothes of Accused
Jawedkhan and clothes of Aniket recovered at
the instance of Accused No.1 to Forensic
Science Laboratory for analysis.
Cri.Appeals 516, 281 n 468 of 2012.odt
xvii. On 25th June, 2009, original simcard of
Vodafone company which was in the mobile of
Mansi was recovered from the shutter of godown
of Tulsi Chamber at the instance of Accused
Jawedkhan.
xviii. Identification parade in respect of gold ring and
clothes of Aniket was held before the Executive
Magistrate. Aniket identified that gold wring and
clothes were belonging to him. An opinion was
also sought from Medical Officer Ghati whether
Accused Jawedkhan was capable to perform
sexual intercourse or not. Several witnesses
were examined in the course of investigation.
After completing investigation charge-sheet was
submitted to the concerned Magistrate who
committed the case for trial to the Court of
Sessions.
6. Charge came to be framed against the Accused vide
Exhibit 13. They pleaded not guilty to the charge vide Exhibits 14
to 16. Their defence was of total denial.
Cri.Appeals 516, 281 n 468 of 2012.odt
7. Prosecution examined in all 33 witnesses during trial.
After going through the evidence adduced in the case, the learned
Additional Sessions Judge convicted and sentenced the Accused
and also acquitted in respect of some of the offences as stated in
paras 1 and 2 above.
8. We have heard the learned counsel for parties in
extenso. With the assistance of the learned counsel for parties,
we have carefully gone through the evidence of prosecution
witnesses. After giving our anxious consideration to the facts and
circumstances of the case, arguments advanced by the learned
advocates for parties, reasonings recorded by Trial Court and the
evidence on record, for the reasons stated below we are of the
opinion that the judgment and order of conviction and sentence
recorded by the Trial Court against the Accused in respect of
various offences as stated in paragraph No.1 above, except
sentence awarded for the offence punishable under Section 302
of the Indian Penal Code is just and proper and needs to be
upheld. So far as order of sentence in respect of offence
punishable under Section 302 of the Indian Penal Code is
concerned, we find that in the facts and circumstances of the case
Cri.Appeals 516, 281 n 468 of 2012.odt
life imprisonment imposed by the Trial Court would be an
inadequate sentence and capital punishment is the only
punishment which is adequate punishment.
9. Needless to state that in a case of murder exclusive
burden lies on the Prosecution to establish that death of a human
being is caused. Prosecution has to overrule the possibility of
natural, accidental or suicidal death by adducing reliable and
convincing evidence clearly indicating the mode of death as
homicidal. In the present case to prove homicidal death
Prosecution has placed strong reliance on medical and
circumstantial evidence.
10. So far as factum of homicidal death is concerned,
evidence of PW-25 Dr. Anand Bassaiya Mugadalimath and
PW-30 Dr. Sachin Gade is important. On 12th June, 2009
Dr.Mugadalimath was attached to Forensic Science Department
Government Medical College and Hospital, Aurangabad. Dead
body of Mansi Deshpande was brought to the hospital by Jinsi
Police. Dr. Mugadalimath stated that history of alleged assault
was given by police in the inquest Panchanama. Dead body was
identified by Aniket Deshpande brother of Mansi.
Cri.Appeals 516, 281 n 468 of 2012.odt
On external examination the team performing
postmortem including Dr. Mugadalimath noticed the following
injuries -
1) Crescentic abrasion over lower part of cheek with
concavity anteriorly right side of size 3 cm,
reddish in colour.
2) Two linear scratch abrasion over lower part of
cheek right side of size 7 cm and separated by
0.2 cm anteriorly and 0.5 cm posteriorly and
reddish in colour.
3) Three crescentic abrasions over mandibular area
right side of size 4 cm, 4.5 cm and 5 cm each, 5
cm, 5.5 cm and 6 cm. below and lateral to chin
with concavity downwards reddish in colour.
4) Two crescentic abrasions over right side of neck
of size 2 cm and 3 cm with concavity backward
and 5.5 cm and 6 cm below and forward to right
mastoid, reddish in colour.
5) Stab wound over neck anteriorly over mid line
irregularly slit shaped, horizontally placed of size
3.5 cm x 0.5 cm x cavity deep on approximation
3.9 cm, margin irregular, contused blood
infiltrated both angles blunted. Stab wound in 10
cm from chin and 8 cm from supra sternal notch.
On dissection tract of stab wound - skin -
subcutaneous tissue - platysma - deep cervical
fascia - thyroid cartilage - vocal cord - left
carotid sheath - Left common carotid artery - left
Cri.Appeals 516, 281 n 468 of 2012.odt
internal jugular vein.
Direction of stab wound - backwards -
downwards - laterally.
6) Stab wound over neck anteriorly over midline,
irregularly oval in shape, horizontally placed of
size 3 cm x 0.5 cm x cavity deep on
approximation 3.4 cm in length, margin irregular,
contused and blood infiltrated and both angles
blunted.
Stab wound is 13 cm from chin and 5 cm
from supra sternal notch. On dissection tract of
stab wound - skin - subcutaneous tissue - deep
cervical fascia - tracheal rings - oesophagus.
Direction of stab wound - backwards and
downwards.
7) Stab wound over right side of neck 15 cm below
and laterally to chin, 8 cm from right mastoid with
lower margin, anteriorly of size 1 cm x 0.5 cm x
cavity deep. On approximation 1.4 cm in length
and irregularly oval in shape, margin irregular,
contused and blood infiltrated, both angles
blunted. On dissection tract of stab wound - skin
- subcutaneous tissue - platysma - deep
cervical fascia - right side strap muscles.
Direction of stab wound - downwards -
backwards and medially.
8) Two stab wounds over neck right side of size 0.6
cm x 0.6 cm and 0.3 x 0.3 cm, both cavity deep
and 4 cm x 6 cm below right mastoid. On
Cri.Appeals 516, 281 n 468 of 2012.odt
approximation 0.8 cm and 0.5 cm in length and
both irregularly oval in shape, margins irregular
contused and blood infiltrated with both angles
blunted. On dissection tract of wound - skin -
subcutaneous tissue - platysma - deep cervical
fascia - sternocleido mastoid muscles.
Direction of stab wound - backwards,
downwards and medially.
9) Two contusions over upper medial of quadrant of
left breast, upper contusion have 2 arches of size
4.5 cm each with concavity downwards &
distance between two arches is 2 mm. Lower
contusion have single arch with concavity
upwards and 5 cm long. Both contusions are
reddish in colour.
10) Contusions over both ala of nose, irregular in
shape and reddish.
11) contusions over both lips whole length, irregular
in shape and reddish.
12) Laceration of frenulum of upper lip, margins
irregular contused & blood infiltrated.
13) Two stab wounds over right side of chest laterally
of size 2 cm x 1 cm x cavity deep and 4 cm x 1
cm x cavity deep, on approximation 2.4 cm and
4.4 cm in length, irregularly oval in shape,
margins - irregular contused and blood infiltrated
with tailing posteriorly and anterior angles
rounded and both placed horizontally.
On dissection tract of stab - skin -
Cri.Appeals 516, 281 n 468 of 2012.odt
subcutaneous tissue. Direction of stab wound -
Anteriorly and downwards.
14) Contusion over right thenar aspect of palm of
size 4 cm x 4 cm, irregular and reddish.
15) Contusion over left thenar aspect of palm of size
4 cm x 3 cm, irregular and reddish.
16) Contusion over right foot medial aspect of size 6
cm x 5 cm, irregular and reddish.
17) Contusion over left foot medial aspect of size 6
cm x 4 cm, irregular and reddish.
18) Stab wound over left side of chest laterally of size
0.5 cm x 0.5 cm x cavity deep on approximation
0.7 cm in length, irregularly oval in shape,
margins - irregular, contused and blood infiltrated
both angles blunted.
On dissection tract of stab wound - skin -
subcutaneous tissue.
Direction of stab wound - Anteriorly
downwards.
19) Two stab wounds over left gluteal region laterally
of size 0.5 cm x 0.5 cm x cavity deep and 0.2 cm
x 0.2 cm x cavity deep, separated by 0.3 cm,
irregularly oval, on approximation 0.8 cm x 0.3
cm in length, margins irregular, contused and
blood infiltrated, both angles blunted.
On dissection tract of stab wound - skin -
subcutaneous tissue.
Direction of stab wound - Anteriorly downwards.
20) Two stab wounds over left gluteal region
Cri.Appeals 516, 281 n 468 of 2012.odt
posteriorly of size 0.5 cm x 0.5 cm x cavity deep
and 0.2 cm x 0.2 cm x cavity deep separated by
0.3 cm. On approximation 0.8 cm x 0.3 cm in
length, irregularly oval in shape, margins
irregular, contused and blood infiltrated, both
angles blunted.
On dissection tract of stab wound - skin -
subcutaneous tissue.
Direction of stab wound - Anteriorly
downwards.
21) Evidence of multiple contusions over left side of
neck of sizes varying from 6 cm x 0.2 cm to 0.5
cm x 0.5 cm, irregular and reddish.
On neck dissection - evidence of
hemorrhages in all strap muscles. Evidence of
petechial hemorrhages above and below
epiglottis and larynx. No evidence of fractures of
Hyoid bone. No evidence of fractures to cricoid
and thyroid lactilages except stab injury as
mentioned in injury no. (5).
11. On internal examination and dissection of neck,
doctors found evidence of haemorrhage in all strap muscles.
Petechial haemorrhage above and below Epiglottis and larynx
was noticed. All the above injuries were found ante-mortem.
Further on external examination of genital organs doctors noticed
Labia minora contused along the whole length, reddish in colour.
Cri.Appeals 516, 281 n 468 of 2012.odt
Hymenal remnants seen at places. There was loss of rugosity of
vaginal wall. There was also found contusion on the vaginal wall
anteriorly lower 1/3rd reddish in colour. On internal examination
they noticed as follows -
"Uterus of size - 6 cm x 4 cm x 2.5 cm of
weight 50 grams. On opening blood clots seen.
Cervix closed transversly slit like. Ovaries and
fallopian tubes normal."
12.
The evidence of Dr. Mugadalimath shows that viscera
was preserved, blood, pubic hair, nails, vaginal swab and smear,
swab from left breast, matted vaginal hair, aspirated vaginal fluid
of the deceased were collected for chemical analysis. Those
samples were forwarded to FSL, Aurangabad for analysis. For
DNA test samples were sent to FSL, Mumbai. The letters
addressed to FSL have been proved by Dr. Mugadalimath at
Exhibits 104, 105 and 106. Medical Officers opined cause of
death due to multiple penetrating wound over neck with
transection of carotid vessels associated with signs of
strangulation and smothering with injury over external genitals. It
was also noticed by doctors that injuries over external genitals
mentioned in column No.21 of the postmortem report were
Cri.Appeals 516, 281 n 468 of 2012.odt
pointing forcible sexual intercourse with the victim. Dr.
Mugadalimath further stated that injuries 1 to 21 in column No.17
could be possible by pointed blunt edge weapon like screw driver,
scissor etc. It is stated by Dr. Mugadalimath that he along with
Dr.Sane and Dr.Gadge performed postmortem. Postmortem
report is duly proved by Dr. Mugadalimath as Exhibit 32. It is
pertinent to note that Accused have not disputed genuineness of
postmortem report Exhibit 32.
13. It is then stated by Dr. Mugadalimath that they
received DNA test report and CA reports from concerned
laboratories i.e. Mumbai and Aurangabad. DNA report is at
Exhibit 107 and CA reports are at Exhibits 108, 109, 110 and 111.
14. After receiving DNA report and CA reports doctors
had opined final cause of death of Mansi as multiple penetrating
wounds over neck with transection of carotid vessels associated
with signs of strangulation and smothering with and forceful
sexual intercourse. Final cause of death certificate signed by all
the three doctors is proved by Dr. Mugadalimath at Exhibit 112.
Dr. Mugadalimath had stated that injury on neck of victim could be
possible by hands, nails and blunt tipped weapon. The
Cri.Appeals 516, 281 n 468 of 2012.odt
smothering could be possible by shutting the mouth and nostrils
by palm.
15. The entire evidence of Dr. Mugadalimath and
Dr.Sachin Gade is most natural and believable as Accused did not
dispute the genuineness of postmortem report and further
Accused No.1 Jawedkhan though cross-examined
Dr.Mugadalimath, could not bring on record anything adverse
affecting the reliability of medical evidence.
16. In addition to medical evidence, prosecution has relied
upon uncontroverted inquest panchanama (Exhibit 31),
photographs (Exhibits 35/1 to 35/5) of the spot taken by PW-3
Baburao Sitaram Batade and spot panchanama (Exhibit 29).
17. So far as inquest panchanama is concerned, PW-32
P.I. Borse deposed that P.S.I. Akmal had drawn inquest
Panchanama (Exhibit 31) and seized various articles from the
spot vide seizure Panchanama (Exhibit 30). Accused have not
disputed genuineness of inquest Panchanama (Exhibit 31). From
inquest panchanama it can be seen that multiple injuries were
found on the dead body of Mansi.
Cri.Appeals 516, 281 n 468 of 2012.odt
18. In respect of photographs, evidence of PW-3 Baburao
Sitaram Batade would be relevant. Baburao Batade (PW-3) was
running Paras Photo Studio at Kailashnagar, Aurangabad. On
12th June, 2009 he was called by Police to take photographs of the
scene of offence. Accordingly, he took 14 photographs and
handed over the photographs and its bill to Police. The
photographs are at Exhibits 35/1 to 35/5. PW-3 Baburao has not
been cross-examined by the Accused.
19. Further it can be seen from the evidence of
Investigating Officer (PW-32) P.I. Borse that he visited the scene
of offence and recorded spot Panchanama in the presence of
Panch witnesses. Several articles mentioned in Panchanama
(Exhibit 29) were seized from the spot. Accused have not
disputed genuineness of spot Panchanama (Exhibit 29). It shows
that articles in the house were lying scattered. Accused did not
cross-examine the Investigating Officer in respect to the factual
position of scene of offence clearly indicative of the fact that victim
was done to death by the assailants.
20. Before we advert to each of the circumstances
enumerated above it would be essential to evaluate the evidence
Cri.Appeals 516, 281 n 468 of 2012.odt
regarding occurrence of incident. PW-7 Aniket Shankarrao
Deshpande is a crucial witness. He is complainant and brother of
victim Mansi. It can be seen from the evidence of Aniket that he
alongwith his sister Mansi was residing in Purwa Apartment since
October, 2006. Their mother died in June, 2006. Father was in
Government service and posted at the relevant time at Shrinagar.
At the time of incident Mansi was studying in II nd year B.C.S. in
MGM College, Aurangabad. She answered her examination and
being holidays was staying alone when Aniket was attending his
office.
It is stated by Aniket that on 11th June, 2009 at around
09:00 am he left for the office. Mansi was alone in the house. He
was to return home at about 07:00 pm. Due to some problem in a
machine, he was required to over stay and came home at around
05:00 am on the next day. Before coming home Aniket called
Mansi on her mobile phone. The mobile was switched off. After
reaching home he knocked the door for 5 to 10 minutes. Thinking
that Mansi might be fast asleep he went to the house of his friend
Vivek in Bhagyanagar at Aurangabad and slept there. He woke
up at 09:00 to 09:30 am. By that time Vivek had already left for
the work. He locked the door of the house of Vivek and came to
Cri.Appeals 516, 281 n 468 of 2012.odt
his house at around 10:00 am.
Aniket found that the door was closed. He knocked
the door and also called Mansi on phone. But he did not receive
any response. He waited for 5 minutes and then suspected
something wrong. The flat of Aniket was on the first floor. He
came down stair to the house of owner Bankar Patil and told him
that he has to enter his house by climbing the grill of their
Varandha. Then he climbed the grill and went to the gallery of his
flat. He saw door of room of balcony opened. Then he entered
the drawing hall and bedroom of Mansi. He found that hands of
Mansi were tied with wire of headphone of mobile. Her legs were
tied with a big scarf. Her face was covered with a bed-sheet. He
removed bed-sheet and saw that body of Mansi was stiff and she
was not talking. No clothes were found on her body. He also saw
injury to her neck and profused bleeding. Many articles in the
house were lying scattered. A screw driver and scissor were lying
there. He got frightened and immediately rushed to neighbourer
Mrs. Soni.
Aniket then states that Mrs.Soni accompanied him.
After seeing Mansi she started calling Mrs. Bankar. Aniket
phoned his friends Vivek and Vishal for help. He requested Mr.
Cri.Appeals 516, 281 n 468 of 2012.odt
Khadke residing in front of the house and who was providing tiffin
to them to call the doctor immediately. Mr. Khadke came with
doctor within 10 minutes. Police also reached the spot. Doctor
examined Mansi and declared her dead. Then Aniket lodged FIR.
The same is proved at Exhibit 41. Police seized articles lying on
the spot. Aniket noticed that his clothes and gold ring were
missing. He identified those articles before the Court.
21.
Aniket was cross-examined by Accused No.1.
Accused Nos.2 and 3 did not cross-examine him. Nothing
substantial could be elicited in the cross-examination of Aniket to
disbelieve his testimony. The evidence of Aniket is thus
consistent, trustworthy and believable.
22. Another witness examined by prosecution is PW-1
Vivek Chandrakant Agrawal. Vivek Agrawal was serving in
Sterlight Company, MIDC Waluj, Aurangabad as Deputy
Manager. Complainant Aniket was serving in the same company.
It appears from the evidence of PW-1 Vivek that on 11 th June,
2009 he had been to company in the morning. Aniket also joined
duty at about 09:30 am. PW-1 Vivek came home at 07:30 pm. At
around 08:00 - 09:00 pm Vivek called Aniket on phone. Aniket
Cri.Appeals 516, 281 n 468 of 2012.odt
informed him that he was in company. Then Vivek asked him
when would he return home. Aniket told him that there was major
fault in the machine and he would be late in returning home.
23. It is further stated by PW-1 Vivek that on the next day
at around 05:30 am Aniket rang the door bell of his house. He
opened the door. Thereafter, Aniket went to sleep in a room.
PW-1 Vivek also went to sleep in his room. According to Vivek at
around 08:45 am he left the home for office. That time Aniket was
sleeping. At 09:30 am he received phone call from Aniket
informing that his sister Mansi was raped. PW-1 Vivek then
rushed to the house of Aniket. He saw people gathered near his
house. He also saw that both the hands of Mansi were tied with
wire of headphone and legs were tied with clothes. He could see
bleeding injuries on her neck and blood on the bed-sheets. Many
household articles were lying scattered in the room. Police had
already reached the house. Accused have not cross-examined
PW-1 Vivek and we do not find any reason to disbelieve his
testimony.
24. PW-2 Vaishali Vivek Khadke used to provide tiffin to
Aniket and Mansi. She was residing in front of Purwa Apartment.
Cri.Appeals 516, 281 n 468 of 2012.odt
She stated that on 12th June, 2009 at around 09:00 am she heard
that Mansi was murdered. She had gone to the house of Mansi
and learnt that mobile phone, gold ring, cash and pant of brother
of Mansi were stolen. Mansi was student. From the evidence of
PW-2 Vaishali it can be seen that Aniket and Mansi only two
persons were residing in the house and incident of theft and
murder had taken place. This witness was not cross-examined by
the Accused.
25. Next important witness is PW-4 Shanta Rameshwar
Soni to whom Aniket had rushed for help after seeing Mansi lying
injured in pool of blood. According to PW-4 Shanta Soni on 12 th
June, 2009 at around 05:30 am she opened the door of her
house. She saw Aniket knocking the door of his house. She
asked Aniket not to knock the door as his sister would get up.
Aniket told PW-4 Mrs. Soni that he returned home after attending
night duty in the office. PW-4 Mrs. Soni told Aniket that he should
wait for some time as Mansi might be sleeping. She asked Aniket
to sit in her house and went for plucking flowers. PW-4 Mrs. Soni
stated that when she returned after collecting flowers she saw that
Aniket was not in her house. She thought that Mansi might have
Cri.Appeals 516, 281 n 468 of 2012.odt
opened the door and Aniket might be inside the house.
It is then stated by PW-4 Mrs. Soni that at about 11:25
am again Aniket came and knocked the door of her house. She
opened the door. Aniket asked her to come to his house and see
whether his sister Mansi is alive or not. PW-4 Mrs. Soni
accompanied Aniket. She went to his house. She saw that hands
and legs of Mansi were tied. Blood was oozing from her mouth.
She checked her veins and pulse and then called Bankar Patil
from the gallery of house. Mrs. Bankar immediately came. She
asked to call the Police. Thereafter, Police were informed. This
witness is also not cross-examined by the Accused.
26. PW-5 Manoj Sajan Mali, a medical practitioner was
running Shree Clinic at Kailashnagar, Aurangabad at the relevant
time. On 12th June, 2009 at about 10:30 am he was in his clinic
and received a phone call from his patient Mr. Khadke residing in
front of Purwa Apartment informing him about the incident and
asking him to attend the girl. As PW-5 Dr. Mali was not aware of
residential address, he told Mr. Khadke to come and take him to
the place. Accordingly, Mr. Khadke came on bike and Dr. Mali
attended Mansi.
Cri.Appeals 516, 281 n 468 of 2012.odt
It is stated by PW-5 Dr. Mali that articles in the house
were scattered. He saw hands of Mansi tied with wire and legs
tied with clothes. He also noticed profused bleeding around her
neck. He could gather from the circumstances that it was a case
of murder and so he expressed his inability to examine Mansi and
told Aniket to call Police before touching the body of Mansi.
Aniket asked him that he had already informed the Police and
requested PW-5 Dr. Mali to see whether there is any chance of
survival of Mansi. On the request of Aniket, he examined Mansi
and found that her respiratory system and pulses were not
functioning. Body was stiff. PW-5 Dr. Mali told Aniket that Mansi
was no more. PW-5 Dr. Mali confirms the factual position in the
room as per the photographs Exhibit 35/4 and 35/5. Accused did
not cross-examine this witness.
27. The next witness Shobhana Deelip Patil (PW-9) was
the owner from whom Aniket sought permission to climb the
staircase to go to his house. She stated that on 12 th June, 2009 at
around 11:15 am Aniket came to her house and asked her son
Abhikshekh that he was not having the key of his flat and wanted
to go to his flat through their iron ladder. Abhikshekh allowed him
Cri.Appeals 516, 281 n 468 of 2012.odt
and accordingly Aniket climbed the ladder and went to his house.
This witness is not cross-examined by the Accused.
28. Thus from the evidence of PW-25 Dr. Mugadalimath
and PW-30 Dr. Sachin Gade, postmortem report (Exhibit 32), final
cause of death certificate (Exhibit 112), spot Panchanama (Exhibit
29), seizure Panchanama (Exhibit 30), the manner of incident and
circumstances brought on record as discussed above an
irresistible conclusion must follow that death of victim girl was
homicidal in nature.
29. Now in order to ascertain whether Accused No.1 is
responsible for rape on victim girl and causing her death, we have
to evaluate the evidence of prosecution witnesses. There is no
direct evidence in the matter. Prosecution case exclusively rests
on the circumstantial evidence. It may be stated that for a crime
to be proved, it is not necessary that the crime must be seen to
have been committed and must, in all circumstances, be proved
by direct or ocular evidence by examining before the Court those
persons who had seen its commission. The offence can be proved
by circumstantial evidence also. The principal fact or "factum
probandum" may be proved indirectly by means of certain
Cri.Appeals 516, 281 n 468 of 2012.odt
inferences drawn from "factum probans" i.e. evidentiary facts. To
put it differently, circumstantial evidence is not direct to the point
in issue but consists of evidence on various other facts in issue
that taken together forms a chain of circumstances from which the
existence of a principal fact can be legally inferred or presumed.
30. On the law relating to circumstantial evidence, it has
been consistently laid down by the Apex Court that where a case
rests squarely on circumstantial evidence, 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 or the guilt of any other person. A legal trend would
further show that for a conviction in murder case on circumstantial
evidence, following conditions must be fulfilled :
i) The circumstances from which the conclusion of
guilt is to be drawn should be fully established.
ii) The facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is, they should not be explainable
on any other hypothesis except that the
accused is guilty.
iii) The circumstances should be of a conclusive
Cri.Appeals 516, 281 n 468 of 2012.odt
nature and tendency.
iv) They should exclude every possible hypothesis
except the one to be proved.
v) There must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and it must show that in all human
probability, the act must have been done by the
accused and the accused alone.
31. Keeping in view the settled law we shall examine the
circumstantial evidence on which reliance is placed by the
prosecution. In the case on hand prosecution has relied upon the
following incriminating circumstances which according to the
prosecution prove the guilt of the Accused beyond reasonable
doubt.
(I) (a) Recovery of mobile of Mansi from
Accused No.2.
(b) Accused No.1 had given mobile to
Accused No.2.
(II) Recovery of simcard in the mobile of Mansi at
the instance of Accused No.1.
Cri.Appeals 516, 281 n 468 of 2012.odt
(III) (a) Recovery of gold ring of Complainant at
the instance of Accused No.3.
(b) Accused No.1 had given gold ring to
Accused No.3.
(IV) Recovery of blood stained clothes of Accused
No.1 at his instance.
(V) Discovery of clothes of Complainant in
pursuance to the information given by
Accused No.1.
(VI) Medical evidence showing that girl was
forcibly raped and then done to death.
(VII) Motive.
(VIII) Failure of the Accused to offer plausible
explanation to the incriminating circumstances
against him.
(I) (a) Recovery of mobile of Mansi from Accused
32.
No.2.
(b) Accused No.1 gave mobile to Accused No.2.
As stated by Investigating Officer, P.I. Borse (PW-32)
on 19th June, 2009 supplementary statement of Aniket was
recorded. From the supplementary statement it was revealed that
Mansi had purchased a mobile of Sony Erikson company. The
Cri.Appeals 516, 281 n 468 of 2012.odt
statements of shop owner and salesman of mobile shop came to
be recorded and receipt of purchase of mobile Exhibit 39 was
collected. The said receipt contains details of mobile purchased
by Mansi. P.I. Borse formed separate squad for further
investigation.
33. On recovery of mobile of Mansi, prosecution
examined PW-7 complainant Aniket, PW-6 Sheetal Sonawane,
PW-11 Amirkhan - a Panch, PW-16 Mohammed Mubin - a
witness on test identification parade in respect of mobile handset
of Mansi, PW-18 Abdul Rauf - owner of mobile shop, PW-19
Ravindra Bahule - a police constable in the team of detection of
stolen mobile, PW-20 A.P.I. Gautam Patare and PW-24 Shaikh
Nadeem - a salesman at the mobile shop.
34. PW-6 Sheetal Satish Sonawane was college mate of
Mansi. They were studying in MGM college in I st year B.C.S. and
were together in one class since XIIth standard. Mansi was her
best friend. She stated that Mansi was calm and quiet. Mansi
told her that her marriage was arranged with Dinesh residing in
America. Both Sheetal and Mansi were often visiting each others
house.
Cri.Appeals 516, 281 n 468 of 2012.odt
35. According to Sheetal in 2009 Mansi called her on
phone and told her that she wanted to purchase a mobile phone.
This happened before 15 days of incident. Sheetal stated that
both then went to Nirala Bazaar, 'Z' Corner at Aurangabad. Mansi
purchased a mobile phone of Soni Erickson company having
simcard of Vodafone company for Rs.7,000/-. The model of
mobile phone was G-502. After purchasing mobile Mansi was
given a receipt. Sheetal identified receipt Exhibit 39 and mobile
phone seized in the crime from Accused No.2 Pradip Chandaliya
as the same mobile which was purchased by Mansi. Witness
Sheetal has not been cross-examined by Accused persons.
36. Prosecution had examined PW-11 Amirkhan a Panch
on seizure of mobile from Accused No.2 Pradip Chandaliya, but
this witness did not support the prosecution and his evidence
needs to be kept out of consideration.
37. Another witness Assistant Police Inspector Gautam
Keshav Patare (PW-20) was attached to Jinsi Police Station at the
relevant time. He conducted investigation in the case. On 21st
June, 2009, A.P.I. Patare received information that stolen mobile
Cri.Appeals 516, 281 n 468 of 2012.odt
was in possession of owner of hotel Pancham. So along with
Panch witness and other staff he went to hotel Pancham on Jalna
Road and gave information at the counter of hotel about purpose
of his visit.
38. Accused No.2 Pradip Chandaliya was available on the
counter. A.P.I. Patare asked Pradip Chandaliya whether he was
possessing mobile. Pradip Chandaliya told him that he was
having mobile handset of Soni Ericson company which was given
to him by his customer Jawedkhan on 14th June, 2009 towards a
bill of hotel. Pradip Chandaliya also stated that simcard in the
mobile was given to him by his son Mayur. Pradip Chandaliya
handed over the mobile to A.P.l. Patare. It was seized under
Panchanama Exhibit 77. A.P.I. Patare identified the mobile and
the simcard before the Court. The evidence of A.P.I. Patare is
consistent throughout and nothing otherwise could be elicited in
his cross-examination to disbelieve his testimony.
39. In order to ascertain whether mobile seized from
Accused No. 2 belonged to Mansi, reliance is also placed on the
evidence of PW-18 Abdul Rauf and PW-24 Shaikh Nadeem.
PW-18 Abdul Rauf Mohammad Yakub was running Zee Corner
Cri.Appeals 516, 281 n 468 of 2012.odt
mobile shop at Nirala Bazar, Aurangabad. He confirmed that
mobile seized in the present case from Accused No.2 Pradip
Chandaliya was sold by him to Mansi on 26th May, 2009. Accused
did not cross-examine this witness.
40. The next witness Shaikh Nadeem Sk. Saleem (PW-
24) was a salesman working at Zee Corner mobile shop. He
stated that on 28th June, 2009 at 06:30 pm owner of the shop
Abdul Rauf called him on phone and asked him to attend Jinsi
Police Station. He went to Jinsi Police Station. Police had shown
him a photograph of a girl who came to purchase mobile from
their shop. He identified the photograph as of the same girl who
purchased mobile from their shop. He also identified the receipt
regarding purchase of mobile which bears his signature.
According to this witness receipt Exhibit 39 and mobile article 25
were the same. He states that mobile was purchased by Mansi
Deshpande a girl in the photograph. He was not cross-examined
by Accused Nos.2 and 3. In the cross-examination by Accused
No.1, nothing substantial could be brought on record to doubt his
testimony.
Cri.Appeals 516, 281 n 468 of 2012.odt
41. Another witness (PW-19) Ravindra Murlidhar Bahule
was a police constable in the team formed for detection of stolen
mobile. He identified mobile article 25 and supported
Panchanama of recovery of mobile. Since Accused No.2 Pradip
Chandaliya has not seriously disputed that mobile was recovered
from him by Police the evidence of P.C. Bahule is not of much
importance. He was not cross-examined by Accused
Nos.1 and 3.
42. According to prosecution, mobile which was seized
from Accused No.2 Pradip Chandaliya was identified by
complainant PW-7 Aniket as of Mansi. Test identification parade
in respect of mobile was conducted by PW-22 Datta Bharaskar.
Mr. Datta Narhari Bharaskar (PW-22) was Naib Tahsildar
attached to Tahsil Office, Aurangabad. On 28th June, 2009, letter
Exhibit 90 was received by him from P.I. Borse of Jinsi Police
Station for conducting identification parade of Muddemal. The
evidence of this witness shows that he conducted identification
parade in respect of gold ring, clothes and mobile. Aniket
identified gold ring and clothes belonging to him and mobile as of
Mansi. TIP Panchanamas were duly proved by Mr. Bharaskar.
Cri.Appeals 516, 281 n 468 of 2012.odt
He was cross-examined at length by Accused. Except some
minor contradictions and omissions, the evidence of Mr.Bharaskar
remained consistent throughout on TIP.
43. The evidence of Naib Tahsildar is corroborated by
PW-16 Mohammed Mubin Mohammad Abbas. PW-16
Mohammed Mubin proved identification of mobile handset of
Mansi by Aniket and its identification Panchanama Exhibit 68.
44.
The other important witnesses on recovery of mobile
are PW-31 Ganesh Pawar and PW-33 Sachin Bhadange.
PW-31 Ganesh Ramrao Pawar was serving in Bharti
Air-Tel company as Nodal Officer. The company was providing
mobile services to customer. It is stated by Ganesh Pawar that on
2nd July, 2009, Aurangabad Police demanded certain information
on E-mail. E-mail was received from the office of Commissioner
of Police, Aurangabad. Details of mobile telephone
No.9503667292 were demanded by Police for the period 12 th
June, 2009 to 21st June, 2009. Accordingly details were given to
Police pertaining to said mobile.
This witness had given detailed information in respect
of the calls made, from which number calls were received, time of
Cri.Appeals 516, 281 n 468 of 2012.odt
conversation traceable from IMEI number and simcard number.
He stated that IMEI number is of 15 digits. Last digit '0' is
common in all IMEI number, whereas first fourteen digits are
unique. He stated that information regarding said mobile number
was asked by Police on 12th June, 2009. Said mobile was actually
activated on 16th June, 2009 and therefore, they could give the
information in respect of said mobile from 16th June, 2009 to 21st
June, 2009. The IMEI number of mobile in question was
354610029004620. Information regarding IMEI number was also
given to Police by them. It was a computerized information.
Mobile call details Exhibit 131, certificate thereon Exhibit 132 and
certificate regarding information of mobile Exhibit 130 have been
proved by this witness. Information regarding IMEI given by
Air-Tel company is at Exhibit 129.
45. (PW-33) Sachin Shantaram Bhadange was a Nodal
Officer in Vodafone company. He stated that mobile
No.9764079190 was of their company. Police inquired about call
details of said mobile from 1st January, 2009 to 18th June, 2009.
Last call from said mobile was made on 12th June, 2009 at 01:54
hours. IMEI number was 354610029004620. He stated that after
Cri.Appeals 516, 281 n 468 of 2012.odt
12th June, 2009, no telephone call was made from said mobile.
This witness has proved call details at Exhibit 196.
46. It can be further seen from the evidence of A.P.I.
Patare that before arrest he interrogated Pradip Chandaliya
regarding possession of mobile and Pradip Chandaliya disclosed
to him that mobile was given to him by his customer Jawedkhan
i.e. Accused No.1 towards payment against the bill of hotel.
47.
Through the evidence of above witnesses,
prosecution could establish beyond reasonable doubt that -
(i) Mobile recovered from Accused No.2 Pradip
Chandaliya belonged to deceased Mansi.
(ii) The said mobile identified at article 25 was
given by Accused No.1 Jawedkhan to
Accused No.2 Pradip Chandaliya towards
the payment against hotel bill.
(iii) IMEI number mentioned on the receipt of
purchase of mobile (Exhibit 39) exactly
tallied with IMEI number visible on the
mobile seized from Accused No.2 Pradip
Chandaliya.
Cri.Appeals 516, 281 n 468 of 2012.odt
(iv) Receipt Exhibit 39 shows that the said
mobile was purchased by Mansi.
(v) Accused No.1 Jawedkhan did not explain
possession of mobile with him.
48. Thus on recovery of mobile of Mansi, evidence of
prosecution witnesses named above is consistent throughout and
prosecution has succeeded in establishing the link of recovery of
mobile of Mansi from Accused No.2 with Accused No.1.
49. (II) Recovery of simcard in the mobile of Mansi at the
instance of Accused No.1.
On the recovery of simcard in the mobile phone of
Mansi prosecution examined PW-12 Mukram Khan Abdul Gaffar
Khan, PW-23 Vinod Kharat, PW-26 Mayur Chandaliya, A.P.I.
Patare (PW-20) and P.I. Sopan Borse (PW-32).
PW-12 Mukram Khan did not support the prosecution
and his evidence needs to be kept out of consideration.
PW-23 Vinod was working in Hotel Pancham owned
by Accused No.2 Pradip Chandaliya. He was examined to show
that simcard given by PW-26 Mayur to his father Pradip was
Cri.Appeals 516, 281 n 468 of 2012.odt
inserted in the mobile by him. According to PW-26 Mayur he
purchased three simcards from a mobile shop. One was given by
him to his friend Mayur Jain. He handed over two simcards to
PW-23 Vinod Kharat who was working in their hotel. He denies
that he had given simcard to his father. To that extent
contradiction is proved through the evidence of Investigating
Officer. Mayur however admits that simcard which was given to
his father was purchased by him. The evidence of this witness
suggests that simcard which was found in the mobile recovered
from Accused No.2 Pradip Chandaliya given by Accused No.1
Jawedkhan was purchased by Mayur and it further suggests that
mobile handset given by Jawedkhan to Pradip Chandaliya was
without simcard.
50. The next important witnesses on recovery of simcard
are PW-20 A.P.I. Patare and PW-32 P.I. Borse. It is stated by
A.P.I. Patare that he interrogated Accused No.2 Pradip
Chandaliya regarding possession of mobile handset with him and
during interrogation Pradip Chandaliya stated that simcard in the
said mobile was given to him by his son Mayur. A.P.I. Patare
seized the simcard under Panchanama. The said simcard was
Cri.Appeals 516, 281 n 468 of 2012.odt
given by PW-26 Mayur to his father Pradip Chandaliya for being
used in the mobile seized from Pradeep Chandaliya.
51. Further link in the circumstances has been established
through the evidence of PW-32 P.I. Borse. P.I. Borse interrogated
Pradip Chandaliya regarding possession of mobile. Pradip
Chandaliya told him that simcard was given to him by his son
Mayur and mobile handset was given to him by Jawedkhan @
Tingarya s/o Habib Khan a customer of his hotel towards the bill
of hotel. P.I. Borse then interrogated Mayur who admitted that he
had given the simcard to his father for being used in the mobile
handset. This evidence clearly establishes that while handing
over mobile to Accused No.2 simcard was removed by Accused
No.1 Jawedkhan.
52. Now the crucial question which is to be answered is
regarding the simcard used by Mansi. In this connection P.I.
Borse interrogated Accused Jawedkhan on 25th June, 2009.
Accused Jawedkhan made a statement that original simcard in
the mobile was kept by him in the shutter of godown of Tulsi
Chamber behind Pancham hotel. The memorandum was drawn
accordingly at Exhibit 54 and in pursuance to the information
Cri.Appeals 516, 281 n 468 of 2012.odt
given by Accused Jawedkhan simcard was recovered from the
place stated by him. It was seized and it's Panchanama Exhibit
54-A was drawn in presence of Panchas. Article 21 simcard has
been identified by P.I. Borse as the same.
53. True, Panch witnesses do not support the prosecution
on recovery of simcard. In our view that alone would not be
enough to discard the testimonies of police officers whose
evidence is otherwise found to be trustworthy and believable. On
the basis of their evidence we hold that prosecution has proved
this clinching circumstance against Accused Jawedkhan beyond
doubt.
54. (III) (a) Recovery of gold ring of Complainant at
the instance of Accused No.3.
(b) Accused No.1 had given gold ring to
Accused No.3.
It can be seen from the evidence of PW-7 Aniket that
gold ring gifted to him by his friend on his birthday was found
missing from the house. PW-8 Damodhar Manik Ghuge was
doing welding work in Sterlight company where Aniket was
serving. Damodhar and Aniket were working in the same
Cri.Appeals 516, 281 n 468 of 2012.odt
department. He stated that in March 2008 he had attended
birthday of Aniket and offered him a gold ring weighing 5½
grams. He purchased the gold ring from the shop of R.C.Bafna at
Aurangabad. He came to know that gold ring given by him to
Aniket was stolen. Police called him to identify the gold ring. He
went to Police Station and identified the gold ring as the same
given by him to Aniket.
55.
This witness was cross-examined on identification of
gold ring. Damodhar stated that gold ring was containing name of
R.C.Bafna and white imitation stone. Despite cross-examination
at length, evidence of Damodhar has remained unshaken and
consistent throughout. No material omission or contradiction
could be brought in his cross-examination. The testimony of
Damodhar thus inspires confidence.
56. The next witness on recovery of gold ring is PW-29
Ashok Kesharlal Chopra, Manager working in the shop of
R.C.Bafna. This witness was examined to show that PW-8
Damodhar had purchased gold ring from the shop of R.C.Bafna.
PW-29 Ashok stated in his evidence that gold ring seized in the
crime was having monogram of their shop. The same was sold
Cri.Appeals 516, 281 n 468 of 2012.odt
from the shop. He identified gold ring article 26 as the same ring
sold from their shop. The evidence of PW-29 Ashok could not be
shattered in the cross-examination. Through his evidence
prosecution could prove that gold ring article 26 given to Aniket
was purchased from the shop of R.C.Bafna.
57. According to prosecution gold ring article 26 was
recovered at the instance of Accused No.3 Ram Bodkhe. During
investigation Accused No.3 Ram Bodkhe was interrogated. He
showed his readiness to produce gold ring. Memorandum of
Accused Ram Bodkhe was recorded vide Exhibit 64 in the
presence of Panch witnesses. Then at the instance of Accused
Ram Bodkhe gold ring was recovered from the room of electric
motor in Tulsi Chambers. The gold ring was kept below a brick in
the room. It was seized under Panchanama Exhibit 65. P.I.
Borse has duly proved recovery Panchanama of gold ring and
identified the gold ring article 26 as the same ring recovered on
the basis of information given by Accused Ram Bodkhe.
58. Another witness PW-15 Asif Mohammad Akbar was
examined on recovery of gold ring at the instance of Accused
No.3 Ram Bodkhe. He sticks up to his evidence regarding
Cri.Appeals 516, 281 n 468 of 2012.odt
memorandum Exhibit 64 given by Accused No.3 to discover gold
ring and recovery Panchanama of gold ring Exhibit 65. Nothing
could be elicited in his cross-examination to disbelieve his
testimony.
59. It is pertinent to note that test identification parade
was conducted by PW-22 Naib Tahsildar in respect of gold ring
and Aniket identified gold ring Exhibit 26 as the same ring which
was gifted by his friend Damodhar. Mohammed Mubin (PW-16)
was a witness on identification Panchanama of gold ring recorded
by Tahsildar Bharaskar vide Exhibit 67. He too supports the
identification of gold ring by Aniket at the time of test identification
before Executive Magistrate.
60. Further it was revealed during investigation that
Accused Jawedkhan had to pay some dues to Ram Bodkhe and
against the payment of dues Accused Jawedkhan had given gold
ring article 26 to Ram Bodkhe. Prosecution through the evidence
of Complainant, Panch witnesses and Investigating Officer has
proved that gold ring recovered at the instance of Accused No.3
Ram Bodkhe was given to him by Accused No.1 Jawedkhan and
the said ring was gifted to Aniket by his friend Damodhar.
Cri.Appeals 516, 281 n 468 of 2012.odt
61. (IV) Recovery of blood stained clothes of Accused
No.1 at his instance.
It is the case of prosecution that on 23 rd June, 2009
Accused No.1 Jawedkhan made a memorandum to discover his
clothes concealed in garbage in front of the building in which
incident took place. PW-15 Asif Mohammad Akbar was the
Panch witness on recovery of clothes of Accused No.1
Jawedkhan. It is stated by Asif that in his presence Accused
Jawedkhan had shown his readiness to discover the clothes
which he was wearing at the time of incident. Memorandum
Exhibit 61 was drawn in his presence. At the instance of Accused
No.1 Jawedkhan his blood stained clothes were recovered from
the heap of waste material. Discovery Panchanama was
recorded vide Exhibit 62 in the presence of PW-15 Asif by PW-32
P.I. Borse. P.I. Borse fully supported memorandum and discovery
Panchanama of the clothes of Accused Jawedkhan and identified
T-shirt article 28 and Jeans Pant article 27 as the clothes which
were recovered on the basis of information given by Accused
No.1 Jawedkhan.
Cri.Appeals 516, 281 n 468 of 2012.odt
62. It further appears from the evidence of Investigating
Officer that seized clothes of Accused No.1 Jawedkhan were sent
for chemical analysis. The blood sample of Mansi was also sent
for chemical analysis to find out the blood group of the deceased.
C.A. report Exhibit 119 shows that blood group of deceased was
AB. Another C.A. report Exhibit 117 indicates that T-shirt of
Accused Jawedkhan was having blood stains of blood group AB.
63.
Accused Jawedkhan was also sent for medical
examination after his arrest. PW-21 Dr.Heena Khan examined
Accused Jawedkhan on 23rd June, 2009. She was Casualty
Medical Officer at Ghati Hospital at the relevant time. The
evidence of Medical Officer shows that blood sample of Accused
was collected and it was sent for DNA and chemical examination.
She has proved the medical certificate of Accused Jawedkhan at
Exhibit 87. It can be seen from C.A. report Exhibit 115 that on
examination blood group of Accused Jawedkhan was found as A.
The blood stains found on the shirt of Accused Jawedkhan were
of blood group AB which was the blood group of the deceased.
This is a strong clinching circumstance against Accused
Jawedkhan confirming his presence on the spot and tilting the
Cri.Appeals 516, 281 n 468 of 2012.odt
needle towards him and him alone to show that he is the culprit.
Since no plausible explanation is coming forth from the side of
Accused No.1 we have no hesitation to rely upon this
circumstance too.
64. (V) Discovery of clothes of Complainant in pursuance
to the information given by Accused No.1.
It was revealed during investigation that Accused
Jawedkhan had changed his clothes after the incident and put on
the clothes of complainant Aniket. The clothes of Aniket were
recovered at the instance of Accused Jawedkhan.
65. On 24th June, 2009 during interrogation Accused
Jawedkhan had shown his readiness to produce the clothes of
Aniket hidden below garbage near Tapadiya Natya Graha.
Memorandum of Accused Jawedkhan was recorded in the
presence of Panch witness PW-32 P.I. Borse vide Exhibit 56. As
per memorandum accused led the police and Panch witnesses to
the place where clothes of Aniket were kept concealed in garbage
near Tapadiya Natya Graha. In pursuance to the information
given by Accused Jawedkhan clothes of Aniket were recovered
Cri.Appeals 516, 281 n 468 of 2012.odt
and recovery Panchanama Exhibit 57 was drawn by P.I. Borse.
The clothes of Aniket were also sent for chemical analysis. No
blood stains were found on the clothes of complainant. The blood
stains which were found were only on the shirt of Accused
Jawedkhan.
66. During test identification parade Aniket identified the
clothes recovered at the instance of Accused Jawedkhan as the
clothes belonging to him (Aniket). This is another clinching
circumstance to indicate that Accused Jawedkhan after the
incident had changed his clothes and wore the clothes of Aniket
which were available in the house.
67. (VI) Medical evidence showing that girl was forcibly
raped and then done to death.
The evidence of Medical Officer Dr.Mugadalimath
(PW-25) and Dr. Sachin Gadge (PW-30) has been elaborately
discussed herein above. On examination of genital organs
Medical Officers found that the girl was sexually assaulted.
Postmortem Report Exhibit 32 duly proved by Medical Officers
shows clear evidence of forcible sexual intercourse with the victim.
Cri.Appeals 516, 281 n 468 of 2012.odt
68. Accused Jawedkhan was sent to Ghati Hospital for
medical examination as stated above. PW-21 Dr. Heena Khan
examined the Accused and found that he was capable of
performing sexual intercourse. She proved the certificate Exhibit
87. During examination Dr. Heena Khan collected blood, public
hair, semen samples and nail clippings of Accused Jawedkhan.
Those samples were sent for DNA test vide letter Exhibit 85.
Accused Nos. 2 and 3 did not cross-examine PW-21 Dr. Heena
Khan. There was no effective cross-examination of this witness
from the side of Accused No.1 Jawedkhan.
69. In respect of DNA test of Accused Jawedkhan it was
revealed during investigation by P.I. Borse that special kit was
required for taking blood and semen samples of the Accused. The
special kit was available only at FSL, Kalina, Mumbai. Head
Constable Hiwale was deputed by P.I. Borse for calling the special
kit from FSL Mumbai. He then sent the special kit along with
Accused Jawedkhan to Medical Officer Ghati Hospital,
Aurangabad and wrote a letter Exhibit 147 to take blood and
semen samples of Accused Jawedkhan in special kit for
performing DNA test. The samples were accordingly collected
Cri.Appeals 516, 281 n 468 of 2012.odt
and forwarded to FSL Mumbai for DNA test of Accused
Jawedkhan.
70. The DNA test reports are at Exhibits 118 and 119. The
opinion of expert on examination was as under :
"For all the 17 genetic systems analysed with the PCR
using male specific Y STR system the male haplotypes
obtained in Semen stains detected on bed sheet (FSL ML
Case No. DNA 356/09 - Exh.1) exactly matched with
male haplotypes in control blood sample of accused
Jawedkhan."
71. On the basis of the results of analysis it is crystal clear
that Accused Jawedkhan had committed rape on Mansi as male
haplotypes of Jawedkhan were found in the aspirated vaginal fluid
of Mansi clearly indicative of the fact that it was Accused
Jawedkhan who committed rape on victim girl.
72. Further from DNA report Exhibit 119 it can be seen
that in the DNA extracted from the semen stains on the bed sheet
in the house of Mansi, male haplotypes in control blood sample of
Accused Jawedkhan were found. This makes it clear that
Accused had committed sexual intercourse with victim Mansi.
Cri.Appeals 516, 281 n 468 of 2012.odt
From another report Exhibit 120 it can be seen that blood stains
detected on the bed-sheet, T-shirt of the Accused and the control
blood stains of deceased were of same biological individual. In
this background, it can be safely concluded that prosecution could
successfully prove that Accused No.1 Jawedkhan sexually
assaulted victim Mansi.
73. (VII) Motive.
In a case based on circumstantial evidence, motive
assumes pertinent significance as existence of motive is an
enlightening factor in a process of presumptive reasoning in such
a case. The absence of motive however, puts the court on its
guard to scrutinize the circumstances more carefully to ensure
that surmises and conjectures do not take place of legal proof.
74. From the incriminating circumstances discussed here-
in-above motive of the Accused in the present case has been
established i.e. to commit theft, satisfy the unbridled lust of the
Accused and then to cause death of victim girl so that his acts can
be simply buried forever. As motive is apparent, prosecution does
safely cross this hurdle too.
Cri.Appeals 516, 281 n 468 of 2012.odt
75. (VIII) Failure of the Accused to offer plausible
explanation to the incriminating circumstances against him.
The last circumstance against the Accused is his
failure to offer plausible explanation to the incriminating
circumstances against him. In his statement under Section 313 of
the Code of Criminal Procedure Accused has not given any
explanation whatsoever for any of the clinching circumstances
brought on record by the prosecution against him. We consider
the silence of Accused as an additional link to complete the chain
in the circumstantial evidence and on the close and critical
examination of the evidence on record we hold that all the
circumstances proved by the prosecution clearly indicate that
accused and accused alone is responsible for the acts attributed
to him.
76. Further in our view all the above circumstances
conclusively prove that all links in the chain are so complete that
they do not leave any reasonable ground for a conclusion
consistent with the hypothesis of the innocence of the accused.
On the contrary, the same are of exclusive nature consistent only
with the hypothesis of the guilt of the accused and conclusively
lead to an irresistible conclusion that it is Accused No.1 who
Cri.Appeals 516, 281 n 468 of 2012.odt
committed lurking house trespass with an intention to commit theft
and then committed rape on the victim and done her to death.
77. This takes us to the crucial task of determining the
quantum of sentence. Learned counsel for Accused Jawedkhan
@ Tingarya s/o Habibkhan is heard on the point of quantum of
sentence. Learned counsel submits that Accused Jawedkhan is
25 year old young boy. Considering his age it is submitted on
behalf of Appellant Jawedkhan that it is not a rarest of rare case
and Trial Court was right in not awarding capital punishment to the
Accused.
78. In response to the submissions made on behalf of
Appellant Jawedkhan, learned APP Mr. Sonpawale strenuously
submitted that considering the nature of offence, manner in which
it was committed and its impact on the society at large it is a
rarest of rare case in which capital punishment needs to be
awarded and life imprisonment would be an inadequate sentence.
On the point of death sentence learned APP relied upon the
following authorities:
a) Bachan Singh V/s. State of Punjab1
1 (1980) 2 Supreme Court Cases 684
Cri.Appeals 516, 281 n 468 of 2012.odt
b) Macchi Singh and Others V/s. State of Punjab2
c) State of Rajasthan Vs. Kheraj Ram3
d) State of Maharashtra Vs. Shatrughna Baban Meshram4
79. In Macchi Singh's case (supra), the Hon'ble Supreme
Court justified capital sentence in rarest of rare cases. It was
observed that death sentence can be awarded when the collective
conscience of the community is so shocked that it will expect the
holders of the judicial power centre to inflict death penalty
irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty. In paragraphs 32, 34, 35, 36
and 37 of the judgment various circumstances were stated where
the community may entertain such sentiments. They are :
(i) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so
as to arouse intense and extreme indignation of the
community.
(ii) When the murder is committed for a motive which
evinces total depravity and meanness; e.g. murder by
hired assassin for money or reward or cold-blooded
murder for gains of a person vis-a-vis whom the
2 (1983) 3 Supreme Court Cases 470
3 (2003) 8 Supreme Court Cases 224
4 2015 (4) Bom.C.R.(Cri.) 744
Cri.Appeals 516, 281 n 468 of 2012.odt
murderer is in a dominating position or in a position of
trust; or murder is committed in the course for betrayal
of the motherland.
(iii) When murder of member of a Scheduled Caste or
minority community etc. is committed not for personal
reasons but in circumstances which arouse social wrath;
or in cases of 'bride burning' or 'dowry deaths' or when
murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman
on account of infatuation.
(iv) When the crime is enormous in proportion. For instance
when multiple murders, say of all or almost all the
members of a family or a large number of persons of a
particular caste, community or locality, are committed.
(v) When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person vis-
a-vis whom the murderer is in a dominating position, or
a public figure generally loved and respected by the
community.
80. In this case, Their Lordships have observed that
guidelines indicated in Bachan Singh Vs. State of Punjab (supra)
will have to be culled out and applied to the facts of each
Cri.Appeals 516, 281 n 468 of 2012.odt
individual case where the question of imposing the death
sentence arises. The following positions emerge from Bachan
Singh case (supra) :
(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the
circumstances of the "offender" also require to
be taken into consideration along with the
circumstances of the "crime".
(iii) Life imprisonment is the rule and death
sentence is an exception. In other words
death sentence must be imposed only when
life imprisonment appears to be an altogether
inadequate punishment having regard to the
relevant circumstances of the crime, and
provided, and only provided, the option to
impose sentence of imprisonment for life
cannot be conscientiously exercised having
regard to the nature and circumstances of the
crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing
so the mitigating circumstances have to be
accorded full weightage and a just balance has
to be struck between the aggravating and the
mitigating circumstances before the option is
exercised.
Cri.Appeals 516, 281 n 468 of 2012.odt
81. Before the new Code of Criminal Procedure both
alternative sentences provided in Section 302 of the Indian Penal
Code were normal sentences but position is now modified by
Section 354(3) of the Code of Criminal Procedure which
mandates the Courts convicting a person for an offence
punishable with death or in the alternative with imprisonment for
life or any other term of imprisonment not to impose sentence of
death on that person unless there are "special reasons" to be
recorded by the Court for such sentence. The expression "special
reasons" in Section 354(3) means "exceptional reasons" founded
on exceptional grave circumstances of the crime as well as the
criminal as held in Bachan Singh's case. In this connection, it is
necessary here to refer the relevant paragraph from the judgment
in Bachan Singh's case (supra) :
"As we read Sections 354(3) and 235(2) and other
related provisions of the Code of 1973, it is quite
clear to us that for making the choice of
punishment or for ascertaining the existence or
absence of "special reasons" in that context, the
court must pay due regard both to the crime and
the criminal. What is the relative weight to be
given to the aggravating and mitigating factors,
depends on the facts and circumstances of the
particular case. More often than not, these two
Cri.Appeals 516, 281 n 468 of 2012.odt
aspects are so intertwined that it is difficult to give
a separate treatment to each of them. This is so
because style is the man. In many cases, the
extremely cruel or beastly manner of the
commission of murder is itself a demonstrated
index of the depraved character of the perpetrator.
That is why, it is not desirable to consider the
circumstances of the crime and the circumstances
of the criminal in two separate water tight
compartments. In a sense, to kill is to be cruel and
therefore all murders are cruel. But such cruelty
may vary in its degree of culpability. And it is only
when the culpability assumes the proportion of
extreme depravity that "special reasons" can
legitimately be said to exist."
82. In case of State of Rajasthan Vs. Kheraj Ram (supra)
Accused was suspecting chastity and fidelity of his wife. He was
also doubting that his wife did not beget children through him.
Accused caused death of his two innocent children, wife and
brother-in-law. Considering the circumstances established
against Accused the Honourable Supreme Court held that death
sentence imposed by the Trial Court was most appropriate. In
paras 36 to 38 it is observed by the Honourable Apex Court as
under:
"36. The principle of proportion between
crime and punishment is a principle of just desert that
Cri.Appeals 516, 281 n 468 of 2012.odt
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 need 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.
ig 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 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 sentences 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, and sometimes even
the traffic results of his crime. Inevitably, these
considerations cause a departure from just desert as
the basis of punishment and create cases of apparent
injustice that are serious and widespread.
38. Proportion between crime and
punishment is a goal respected in principle, and in
spite of errant notions, it remains a strong influence in
Cri.Appeals 516, 281 n 468 of 2012.odt
the determination of sentences. The practice of
punishing all serious crimes with equal severity is
now unknown in civilized societies, but such a radical
departure from the principle of proportionality has
disappeared from the law only in recent times. Even
now a single grave infraction is thought to call for
uniformly drastic measures. Anything less than a
penalty of greatest severity for any serious crime is
thought then to be a measure of toleration that is
unwarranted and unwise. But in fact quite apart from
those considerations that make punishment
unjustifiable when it is out of proportion to the crime,
uniformly disproportionate punishment has some very
undesirable practical consequences."
83. In the case of State of Maharashtra Vs. Shatrughna
Baban Meshram (supra) this Court following the law laid down by
the Honourable Supreme Court particularly in the case of Bachan
Singh and Macchi Singh and relying upon the evidence brought
on record held that the case falls in the category of rarest of rare
case and accordingly confirmed the death sentence awarded by
the learned Trial Judge.
84. Reverting to the case on hand, we have given our
anxious consideration to the submissions made by the learned
counsel for Appellant and learned APP for the State. Keeping in
view the proposition of law and guidelines laid down by the
Cri.Appeals 516, 281 n 468 of 2012.odt
Constitution Bench of the Hon'ble Supreme Court time and again
it appears to us that for deciding just and appropriate sentence to
be awarded for an offence aggravating and mitigating factors and
circumstances in which crime has been committed are to be
delicately balanced in a dispassionate manner. We now propose
to deal with aggravating and mitigating circumstances in the
present case.
85.
AGGRAVATING CIRCUMSTANCES :
a) The offence committed by Accused No.1 Jawedkhan
had not been committed on the spur of moment. It
was preplanned. Accused No.1 entered the house to
commit theft but did not stop there and in order to
satisfy his lust forcibly raped a young defenceless
lone girl and then eliminated her life in a beastly, brutal
and barbaric manner. We consider this grisly and a
gory episode as an ultimate insult to the humanity in
general and womanhood in particular.
b) Subsequent conduct of accused indicates that he had
felt no remorse.
c) Neither the victim nor her family members had any
animosity with the accused.
Cri.Appeals 516, 281 n 468 of 2012.odt
d) The modus-operandi to commit the crime by resorting
to diabolical method exhibits depravity, degradation
and uncommonality of the crime which had shocked
the collective conscience of the community.
86. MITIGATING CIRCUMSTANCES :
a) Accused was 21 years old at the relevant time.
87. The hard facts of the present case are that Accused
Jawedkhan entered the house in the odd hours to commit theft,
brutally and sexually assaulted victim girl who was sleeping alone
in the house and then mercilessly caused her murder. The
modus-operandi of Accused clearly shows that he would be a
menace to the society and there is no possibility of the Accused
being reformed.
88. What is so hard for us is the unpleasant reality that
every woman who is not even victim of violence has had her way
of life profoundly affected by the fear of such violence. This is
unfortunate that a country which claims to be more tolerant, more
civilized and more secular has to face such instances of violence
against women and the continued sense of insecurity instilled in
women.
Cri.Appeals 516, 281 n 468 of 2012.odt
89. In the light of growing menace of violence against
women we are required to examine the quantum of punishment.
It may grossly be unrealistic to hold that age of culprit the only
mitigating circumstance in isolation would come in the way of
imposing capital punishment in the present case. Needless to
state that victim of crime cannot be forgotten. A college going girl
who was to marry after some time with a boy staying in America
was required to stay alone in the night as her brother could not
come home due to official constraints and Accused taking
disadvantage of situation not only brutally ravished her but also
done the helpless girl to death. Such an act of the Accused in our
view has to be dealt with stern hands.
90. The circumstances established by the prosecution
listed above show how a precious life of a young girl was taken
away by Accused in a most cruel, barbaric and inhuman manner.
Further how brutal and diabolical act of causing sexual assault
and death of victim was, is apparent from the modus-operandi of
Accused proved through various circumstances brought on
record.
Cri.Appeals 516, 281 n 468 of 2012.odt
91. It would not be out of place to mention here that at all
levels may be International, National, State or local commitment
has been made that women have an inherent right to life which
includes right to live with dignity, honour and respect. If this
inherent right is taken away just to satisfy the lust, it is to be put
down with heavy hands. Any leniency in our view would result
into an inadequate punishment.
92.
During investigation, previous criminal record of
Accused Jawedkhan was collected on 3rd July, 2009. It was
revealed from his past antecedents that Accused Jawedkhan was
involved in five offences relating to housebreaking and two
offences of theft. The extracts of crime registers (Exhibits 152 to
158) were proved by the Investigating Officer clearly indicating
that past antecedents of Accused Jawedkhan were not clean and
clear. In this background and considering the nature of offence,
manner in which it was committed and upon evaluating the
aggravating and mitigating circumstances according to us this is a
case which falls in the category of rarest of rare case. We have
therefore no hesitation in awarding sentence of death to Accused
No.1 Jawedkhan.
93. So far as remaining two Accused Pradip Chandaliya
Cri.Appeals 516, 281 n 468 of 2012.odt
and Ram Bodkhe are concerned they were convicted basically for
the offences relating to receiving stolen property. Both did not
challenge the order of conviction recorded by the Trial Court
against them. It is the State of Maharashtra who came in appeal
for enhancement of sentence against all the Accused. On
appreciation of the evidence against Accused No.2 Pradip
Chandaliya and Accused No.3 Ram Bodkhe we find that the
reasons and findings recorded by the learned Additional Sessions
Judge are based upon due appreciation of evidence and are
consistent with the evidence on record as well as the settled legal
principles. We are therefore not inclined to enhance the sentence
against Accused Nos.2 and 3.
94. In respect to the appeal against acquittal under some
of the provisions of the Indian Penal Code, we upon evaluation of
evidence do not find any perversity, illegality or incorrectness in
the findings recorded by the Trial Court. We thus find that appeal
against acquittal filed by the State of Maharashtra deserves to be
dismissed.
95. In the above premise and in the totality of the facts
and circumstances, we proceed to pass the following order -
Cri.Appeals 516, 281 n 468 of 2012.odt
ORDER
Criminal Appeal No.516 of 2012
I. Criminal Appeal No.516 of 2012 is dismissed.
Criminal Appeal No.281 of 2012
I. Criminal Appeal No.281 of 2012 is partly
allowed against Accused No.1 Jawedkhan @
Tingarya s/o Habibkhan.
II. Conviction of Accused No.1 Jawedkhan @
Tingarya s/o Habibkhan under Sections 456,
457, 458, 392 read with 397, 376 and 302 of
the Indian Penal Code is maintained.
III. The order of sentence of imprisonment for life
in respect of offence punishable under Section
302 of the Indian Penal Code is modified and
instead Accused No.1 Jawedkhan @ Tingarya
s/o Habibkhan is sentenced to death, he be
hanged by neck till he is dead.
Cri.Appeals 516, 281 n 468 of 2012.odt
IV. The order of sentence in respect to the other
offences mentioned in II above is confirmed.
V. Appeal Against Accused No.2 Pradip s/o
Askaran Chandaliya and Accused No.3 Ram
s/o Sheshrao Bodkhe stands dismissed.
VI. Copy of judgement shall be given free of cost to
Accused No.1 Jawedkhan @ Tingarya s/o
Habibkhan immediately.
Criminal Appeal No.468 of 2012
I. Criminal Appeal No.468 of 2012 is dismissed.
Sd/- Sd/-
[ INDIRA K. JAIN, J. ] [ A. V. NIRGUDE, J. ]
ndm
