Bombay High Court
The State Of Maharashtra vs Vitthal Tukaram Atugade on 14 March, 2016
Bench: V.K. Tahilramani
1/78
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Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO. 1 OF 2015
The State of Maharashtra ..Appellant
(Orig.Complainant)
Vs.
Vitthal Tukaram Atugade ..Respondent
(Orig. Accused)
WITH
CRIMINAL APPEAL NO.923 OF 2015
Vitthal Tukaram Atugade
ig ..Appellant
(Orig. Accused)
Vs.
The State of Maharashtra ..Respondent
(Orig.Complainant)
-----
Mrs. G.P. Mulekar, APP for the State in Confirmation Case No.1 of 2015
and for Respondent in Appeal No.923 of 2015.
Mr. Abhaykumar Apte, appointed Advocate for the Appellant in Appeal
No.923 of 2015 and for Respondent in Confirmation Case No.1 of 2015.
-----
CORAM: SMT. V.K. TAHILRAMANI, AND
SHRI A.S. GADKARI, J.J.
Reserved On : 29th October 2015.
Pronounced On: 14th March 2016
JUDGMENT (PER A.S. GADKARI, J.):-
1 The Confirmation No.1 of 2015 arises out of the Reference
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made by the learned District Judge-1 and Additional Sessions Judge,
Islampur, District-Sangli for confirmation of the death sentence awarded to
the accused Vitthal Tukaram Atugade (hereinafter referred to as 'accused')
by its judgment and order dated 18th April 2015 passed in Sessions Case
No.4 of 2014.
The learned Additional Sessions Judge, Islampur convicted the
accused for the offence punishable under Section 302 of the Indian Penal
Code and sentenced him to suffer death sentence and to pay fine of
Rs.2000/- and in default of payment of fine to further undergo simple
imprisonment for one month. It is directed that the accused be hanged by
neck till he is dead subject to confirmation of death sentence by the High
Court under Section 368 of Cr. P.C.
By the aforesaid judgment and order, the accused is also
convicted for the offence punishable under Section 376(2)(f) of the Indian
Penal Code and is sentenced to suffer life imprisonment and to pay fine of
Rs.2000/-. In default of payment of fine, to further undergo simple
imprisonment for one month.
The accused is further convicted for the offence punishable
under Section 363 of the Indian Penal Code and is sentenced to suffer
rigorous imprisonment for three years and to pay fine of Rs.1000. In
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default of payment of fine, to further undergo simple imprisonment for 15
days.
The accused is convicted under Section 366 of the Indian
Penal Code and is sentenced to suffer rigorous imprisonment for two years
and to pay fine of Rs.1000/-. In default of payment of fine, to further
undergo simple imprisonment for 15 days. The accused is also convicted
for the offence punishable under section 201 of the Indian Penal Code and
is sentenced to suffer rigorous imprisonment for three years and to pay fine
of Rs.1000. In default of payment of fine to undergo simple imprisonment
for 15 days.
The accused is further convicted for the offence punishable
under Section 4 of the Protection of Children From Sexual Offences Act
and is sentenced to undergo rigorous imprisonment for 7 years and to pay
fine of Rs.1000/-. In default of the fine, to undergo simple imprisonment
for 15 days.
The accused is also convicted for the offence punishable under
Section 6 of the Protection of Children From Sexual Offences Act and is
sentenced to suffer rigorous imprisonment for 10 years and to pay fine of
Rs.1000/-. In default of payment of fine to undergo simple imprisonment
for 15 days.
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2 The Trial Court has granted set off for pre-conviction detention
period undergone by the accused since the date of his arrest i.e. for,
7.11.2013 till the date of passing of the order. As the sentence of death
penalty is given to the accused, the learned Additional Sessions Judge,
Islampur has made Reference as contemplated under Section 366 of the
Code of Criminal Procedure to this Court for confirmation of the death
sentence.
The accused being aggrieved by the same judgment and order
dated 18th April 2015 passed in Sessions Case No.4 of 2015 has preferred
Criminal Appeal No.923 of 2015. As both the confirmation and the appeal
against confirmation are directed against the very same judgment and order
dated 18th April 2015, both these matters are heard and decided together by
the present judgment and order.
3 The prosecution case as has been enumerated from the record
can briefly be stated as under:
(i) The first informant Smt. Kavita Hanmant Shirsat (PW-1) is the
mother of the victim minor girl Miss.Vaishnavi then aged 7 years She was
residing at Shirsatwadi, Taluka Shirala, District- Sangli along with her two
minor daughters. Her husband was serving at Mumbai. The parental house
of the first informant was at Atugadewadi, Taluka Shirala, District- Sangli.
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That on 4.11.2013 PW-1 Smt.Kavita along with her two daughters had been
to her parental house at Atugadewadi for celebrating Diwali festival.
(ii) The accused herein is the cousin brother of Smt. Kavita (PW-
1). On 6.11.2013 at about 11.30 a.m. the victim girl i.e. the daughter of
Smt. Kavita was playing in the courtyard of the parental house of the said
Smt. Kavita. The accused was proceeding to Sayyadwadi for his hair-cut.
The accused enquired with the victim girl Miss. Vaishnavi as to whether
she would accompany him to Sayyadwadi. PW-1 Smt. Kavita, mother of
the said victim minor girl thereafter sent her daughter along with the
accused. That the accused and the said Miss. Vaishnavi did not return upto
1.00 p.m. to the house. Therefore Smt. Kavita (PW-1) tried to contact
accused on his cellphone from the cellphone of her father. However, the
accused could not be contacted as the cellphone of the accused was
switched off. That as the accused and the victim minor girl did not return
to the house of the said Smt. Kavita till 3.00 p.m., Smt. Kavita told the said
fact to her father and other relatives. Smt. Kavita and her family members
thereafter searched the accused and Miss Vaishnavi at Chavanwadi and
Chormarwadi, but the accused and the victim Miss. Vaishnavi could not be
traced out. Smt. Kavita waited for the accused and the victim minor girl till
night. However, they did not return to the house and therefore Smt. Kavita
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went to Kokrud Police Station and lodged the missing report on 6.11.2013.
Shri Balkrishna Y. Patil (PW-18) registered the said missing report as
missing case No.11 of 2013 dated 6.11.2013 at about 10.30 p.m.
(iii) On 7.11.2013 at about 9.30 a.m. Prathamesh S. Jadhav (PW-7)
a friend of accused, saw him near village Ghogaon. He noticed that the
accused was under fear and perhaps did not sleep through out the night.
The accused was hungry and therefore Prathamesh (PW-7) gave him
snacks to eat. Prathamesh Jadhav (PW-7) thereafter informed the said fact
to Akaram @ Balaso Atugade (PW-13) who is the uncle of Smt. Kavita.
Prathamesh (PW-7) informed Akaram @ Balaso Atugade (PW-13) that
accused is at village Ghogaon. Thereafter Akaram @ Balaso Atugade (PW-
13) went to the village Ghogaon for bringing the accused. Akaram @
Balaso Atugade (PW-13) thereafter brought the accused to Atugadewadi.
However the victim girl was not with him. Therefore the mother of the
victim Smt. Kavita (PW-1) asked the accused about her daughter.
(iv) In the meantime, the police from Kokrud Police Station also
reached to the house of Smt. Kavita and enquired with the accused about
the victim minor girl. The accused informed all the persons present there
that on 6.11.2013 at about 11.30 a.m. the victim minor girl was
accompanying him for going to Sayyadwadi. That he took her in the hilly
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area of village Enpe and committed rape on her in the grass land. As the
accused was apprehensive of the fact that the victim girl would disclose
the said fact to the relatives, he committed her murder by throttling. He also
informed that he had buried the dead body of victim minor girl at the spot
near road leading from Enpe to Kodaiwadi near one bush.
(v) That Smt. Kavita (PW-1), her father Laxman Dhondiba
Atugade and uncle Akaram @ Balaso Atugade (PW-13) along with accused
and police went to the road leading from Enpe to Kondaiwadi, by jeep. The
accused showed the spot where he had buried the dead body of the victim
girl. The fingers of the leg of the victim minor girl were protruding out
from the earth. In the meantime, the police personnel from Kasegaon police
station and the Tahsildar of Shirala Taluka namely Smt. Vijaya S. Yadav
(PW-14) also came at the spot. The police took out the dead body by
removing the earth on it. Smt. Kavita (PW-1) identified the said dead body
as of her daughter, Miss. Vaishnavi. Abrasions were observed over the
dead body of the victim girl and the blood was accumulated on the thigh
in dried condition. The informant Smt. Kavita lodged the FIR with API Shri
Waghmare. The FIR is at Exhibit-12. The FIR was carried by Police
Constable Shri Jadhav to Kokrud Police station. Shri Dhondiram Kamble
(PW-17) was on duty as PSO at Kokrud Police station. As per the said FIR,
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he registered the Crime No.40 of 2013 under Sections 302, 376, 201, 363
and 366 of the IPC and under Section 4 of the Protection of Children from
Sexual Offences Act, 2012. ASI Shri Dhondiram Kamble (PW-17) also sent
copy of the said FIR to the Court of Judicial Magistrate First Class, Shirala.
After the lodgment of the FIR, initial investigation was carried out by API
Shri Waghmare and subsequently it was handed over to API Shri
Bapusaheb Shinde (PW-19) then attached to Kasegaon Police station.
(vi) During the course of investigation, the Investigating Officer
seized the articles which were found at the scene of offence and at other
places. The Investigating Officer also recorded statements of various
witnesses. He also collected necessary documents such as map of site/scene
of offence, Postmortem notes, medical certificate and the reports from
Chemical Analyser and after completion of the investigation, the
Investigating Officer submitted chargesheet against the accused in the
Court of J.M.F.C., Shirala, District- Sangli.
(vii) As the offence under Section 302 of the Indian Penal Code
was exclusively triable by the Court of Sessions, J.M.F.C., Shirala
committed the said case to the Court of Additional Sessions Judge,
Islampur. After committal of the said case, the Additional Sessions Judge,
Islampur framed charge below Exhibit-5 against the accused for the
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offencese punishable under Sections 363, 367, 376(f), 302, 201 of the
Indian Penal Code and under Sections 4 and 6 of the Protection of
Children from Sexual Offences Act, 2012. That the contents of the said
charge were read over and explained to the accused in Marathi vernacular
language to which the accused pleaded not guilty and claimed to be tried.
The defence of the accused was of total denial and false implication in the
present crime. In support of its case, the prosecution examined in all 19
witnesses. The learned Trial Court after recording the evidence of the
prosecution witnesses and after hearing the parties to the said case, was
pleased to convict the appellant as stated hereinabvoe by its judgment and
order dated 18.4.2015.
4 Heard Mrs. G.P. Mulekar, the learned APP for the State
(Original Complainant) in Confirmation Case No.1 of 2015 and Mr.
Abhaykumar Apte, the learned Advocate appointed, for the
accused/respondent and with their able assistance we have also perused the
entire record minutely.
5 Mr. Apte, the learned Advocate appointed for the accused
submitted that in the present case the prosecution has failed to prove the
ingredients of Section 363 and 366 of the Indian Penal Code, as the
accused had taken the victim minor girl with him with the consent of her
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mother i.e. PW-1 Smt. Kavita therefore the charge under the said sections is
not at all attracted to the present case. He submitted that Smt. Kavita (PW-
1) and Smt. Balabai Yadav (PW-12) have lastly seen the deceased victim
minor girl in the company of the respondent on 6.11.2013 at about 11.30
a.m.. That the dead body of the victim minor girl was recovered on
7.11.2013 at about 2.30 p.m. and therefore there is substantial time gap
between last seen together and the discovery of the dead body. He
submitted that due to the said substantial time gap, the theory of last seen
together loses its importance. He submitted that Uttam and Ganesh, the
brothers of the accused have not been examined and therefore adverse
inference has to be drawn against the prosecution. He further submitted that
the alleged extra judicial confession given by the accused to Shri Akaram
@ Balaso Atugade (PW-13) is a very weak piece of evidence and the same
should not be relied upon while basing the conviction of the accused. He
submitted that the discovery panchanama (Exhibit-34) wherein the spot
where the victim minor girl was buried is effected about 4.45 p.m. and the
Panchanama Exhibit 32 at the instance of Smt. Kavita (PW-1) which was
recorded at about 4.00 p.m. on 7.11.2013, shows that the police were
already having the knowledge about the said spot. He therefore submitted
that the said Exhibit 34 i.e. the panchanama of the spot where the dead
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body of the victim minor girl was buried cannot be relied upon. He further
submitted that on the spot of incident, where it is alleged that the accused
had committed rape on the victim minor girl, no blood stains were found
even by the Forensic Expert though there were blood stains on the thigh of
the victim minor girl. He submitted that the place/spot where the dead body
of the victim minor girl was hidden till the evening, at that place also the
blood stains were not found. He further submitted that Smt. Balabai Yadav
(PW-12) is got up witness and there is no corroboration to her evidence
about the facts stated by her. That PW-16, the Medical Officer who has
examined the accused has not mentioned about any injuries on his private
part and therefore the offence of rape is not proved. He submitted that the
prosecution has not explained by leading evidence about the fact from
where the accused procured the steel pot to pour the earth on dead body of
the victim minor girl. That the Trial Court has not taken into consideration
the report of the Chemical Analyser at all. He lastly contended that as the
prosecution has failed to prove the case beyond reasonable doubt, the
accused may be acquitted from all the charges levelled against him and in
the alternative, he prayed the death sentence awarded by the Trial Court
may be commuted to either life imprisonment or a more lesser sentence.
6 The learned APP for the State per contra opposed the appeal
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bearing no.923 of 2015 filed by the accused and supported the judgment
and order passed by the learned Trial Court. She submitted that the
evidence on record clearly points out the finger of guilt towards the
accused as the only person who has committed the present heinous crime.
She further submitted that the accused has committed an offence of rape
and murder of a minor girl who was a helpless victim and was unable to
defend herself. She submitted that the accused by deceitful means removed
the said minor girl from the custody of her mother Smt. Kavita (PW-1) and
with a view to fulfill his lust has committed the present gruesome crime
and therefore the punishment awarded by the Trial Court need not be
interfered with. She lastly submitted that the conviction and sentence
awarded by the Trial Court may be maintained and the appeal preferred by
the accused be dismissed.
7 With a view to effectively deal with the submissions advanced
before us by Shri Abhaykumar Apte, the learned Counsel appointed for the
for the accused and the learned APP for the State, it would be necessary and
useful to refer to the evidence in detail of the prosecution witness. The
prosecution has examined in all 19 witnesses.
8 PW-1 Smt. Kavita Hanmant Shirsat is the mother of minor
victim girl namely Vaishnavi. PW-1 Smt. Kavita in her testimony has stated
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that, she was residing at Shirsatwadi, Taluka Shirala, District Sangli along
with her two daughters namely Varsha and Vaishnavi, aged five and seven
years respectively. That her husband was serving at Mumbai. She was
doing labour work. That her parental house was at Atugadewadi, Shirala,
District-Sangli. That her father and mother resided at Atugadewadi and
both her brothers were working at Mumbai. That Shri Tukaram D. Atugade
was her uncle. Shri Tukaram D. Atugade was having two sons namely
Vitthal and Ganesh. That the accused Vitthal Tukaram Atugade and his
mother Smt. Indubai were residing at Atugadewadi. That on 4.11.2013, she
along with her two daughters had been to her parental house at village
Atugadewadi for celebrating Diwali festival. That on 6.11.2013 at about
11.30 a.m. her both daughters namely Varsha and Vaishnavi were playing in
the courtyard which was adjacent to her parental house. At that time the
accused came there and asked her daughter Vaishnavi to accompany him
for going to Sayyadwadi for a hair-cut. The accused thereafter took her
daughter Vaishnavi along with him. Her parental house at Atugadewadi is
in agricultural land. That her father and her uncles resided separately in the
said house. Smt. Indubai i.e. the mother of the accused and the accused
Vitthal used to reside in the said building separately.
That till 1.00 p.m. on 6.11.2013, the accused and her daughter
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Vaishnavi did not return to house and therefore she contacted the accused
on his cellphone through the cellphone of her father. However, the
cellphone of the accused was switched off. She then waited upto 3.00 p.m.
and thereafter her father and her uncle took search of the accused and her
daughter Vaishnavi. They searched the accused and Vaishnavi at
Chavanwadi and Chormarwadi. However, the accused and Vaishnavi could
not be traced out. On the same date, at about 10.30 p.m. she along with her
father went to Kokrud Police station and lodged the missing report. The
said missing report is at Exhibit 11. That on the next day, PW-1 Smt. Kavita
along with her family members again searched accused and Vaishnavi. On
the next day i.e. on 7.11.2013 that about 11.00 a.m. her uncle namely
Akaram @ Balaso D. Atugade (PW-13) received a phone call on his
cellphone from PW-7 Prathamesh, the friend of accused. The friend of
accused informed her uncle that accused was at village Ghogaon. That her
uncle Akaram @ Balaso Atugade (PW-13) went to village Ghogaon and
brought the accused. However, at that time her daughter Vaishnavi was not
with him. She therefore asked accused about her daughter. The accused did
not tell her whereabouts of her daughter Vaishnavi. In the meantime, the
police from Kokrud Police Station came at her parental house. The accused
thereafter informed her in the presence of police that, he took Vaishnavi in
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grass land in the hilly area of Kondaiwadi, committed rape on her and
thereafter committed murder by pressing her neck. That he dragged the
dead body of Vaishnavi from the said grass land near bridge of Kondaiwadi
to Enpe. That he buried the dead body of Vaishnavi near the bush (Shend)
in one pit. The police thereafter took her, her father and accused from a
jeep to village Kondaiwadi. The accused thereafter showed road leading to
village Kondaiwadi. They came near one bridge. The accused thereafter
showed the spot near a bush where he had buried the dead body of
Vaishnavi. At the said spot, PW-1 Smt. Kavita noticed the fingers of foot
of Vaishnavi were protruding outside the earth. In the meanwhile, the
police officer from Kasegaon police station came on the said spot. The
Tahsildar of Shirala Taluka also came at the spot of incident. The police
removed the dead body from the said spot by removing earth on the dead
body. PW-1 Smt. Kavita identified the dead body as of her daughter
Vaishnavi at the said spot. There were abrasions over her face, chest and
back. The skin had turned black and reddish. She noticed that the blood had
oozed out from her private part. After seeing the said dead body, Smt.
Kavita (PW-1) was certain about the fact that the accused committed rape
over Vaishnavi and murdered her. That her first information report was
recorded by the police on the said spot of incident itself. The first
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information report is at Exhibit 12. That she was at the spot of incident till
7.00 p.m. The dead body of Vaishnavi was taken to Shirala Hospital for
performing autopsy. Then at 1.00 a.m. in midnight the dead body of
Vaishnavi was brought to the house and thereafter last rites were performed
on the dead body. That the Police thereafter called her to Kokrud Police
Station on 10.11.2013 and showed her an ornament (Painjan). PW-1Smt.
Kavita identified the said ornament-Painjan as of deceased Vaishnavi. PW-
1 has also identified the clothes which were on the person of the deceased
Vaishnavi at the time of incident.
Smt. Kavita (PW-1) was cross-examined at length by the
accused. During the cross-examination, no material apart from a few minor
admissions have been brought on record. PW-1 has admitted that her
daughter Vaishnavi was using sandals as footwear. During the
investigation, police did not seize it. That when she saw the dead body of
Vaishnavi, she did not notice that blood was oozing. That the dead body of
Vaishnavi was buried in one pit towards the side of road and it was covered
with five to six buckets, full of earth. PW-1 Smt. Kavita in the cross-
examination has categorically denied the suggestion that no discussion took
place between her and her family members and other villagers before
lodging the first information report.
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9 PW-2 Mangal Raghunath Lad is the panch-witness to the
inquest panchanama of the dead body of Miss. Vaishnavi. The said
panchanama is at Exhibit 15.
PW-3 is Sampat K. Kadvekar. He is panch-witness to the
seizure of the clothes of accused at the time of his arrest and panch to the
panchanama whereby Shri Mahadeo B. Patil (PW-6), the Principal of
Dadasaheb Undalkar High School and Higher Secondary School at Undale,
Taluka Karad identified the identity card of the accused which was found at
the scene of offence.
PW-4 is Snajay Shankar Mane, the panch-witness to the
seizure of clothes of the deceased Miss. Vaishnavi having blood stains on it.
PW-5 is Dattatraya R. Shiralkar, the panch-witness to the
identification of the ornaments of the deceased Miss. Vaishnavi by her
mother Smt. Kavita (PW-1).
PW-6 is Shri Mahadeo B. Patil, the Principal of Dadasaheb
Undalkar High Shool and Higher Secondary School at Undale, Taluka
Karad. This witness has identified the identity card of the accused. The said
identity card was found at the scene of offence. The said identity card is at
Exhibit 27. This witness has also identified the bonafide certificate of the
accused which was issued during the course of investigation. The said
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bonafide certificate is at Exhibit 26.
It is to be noted here that in the evidence of the aforesaid
witnesses they have proved the related Exhibits. That in their detailed
cross-examination, no material which is useful or beneficial to the accused
has been elicited.
10 PW-7 is Prathamesh Sitaram Jadhav, the friend of accused.
PW-7 in his testimony has stated that the accused was studying in 11 th and
12th standard along with him in Dadasaheb Undalkar High School and
Junior College, Undale. That on 6.11.2013 at about 7.00 p.m. he received a
call on his cellphone from his friend Sunil Atugade who told him that their
friend Vitthal Atuguade (accused) had taken the daughter of his sister along
with him for cutting his hair, however, he did not return to the house and
told PW-7 Prathamesh, to inform him if he finds the accused. That on
7.11.2013 at about 9.30 a.m., PW-7 Prathamesh was going to village
Ghogaon by motorcycle, and when he reached Yelgaon Phata, he saw
Vitthal Atugade (accused) going towards Ghogaon by walk. PW-7
Prathamesh asked accused where he was going, to which the accused told
him that he was going to Ghogaon. PW-7 Prathamesh noticed that the
accused was under fear. PW-7 told the accused to eat snacks as he felt that
the accused did not sleep through out the night and was hungry. They
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thereafter went to one stall for eating snacks (bread - vada). PW-7,
Prathamesh thereafter informed Sunil Atugade on his cellphone that the
accused was found, however, the daughter of his sister was not with him.
That Sunil Atugade, brother of accused and uncle of accused came at the
said stall and they took the accused along with them. At about 3.30 p.m.,
PW-7 Prathamesh was going to village Kumbhodewadi to meet his sister.
On his way there was house of accused. PW-7 Prathamesh saw the crowd
of people gathered in front of the house. He asked members of the said
crowd about what had happened. The people present there informed him
that the accused took daughter of his sister in the hill of Kondaiwadi and
committed rape over her and murdered her. PW-7 Prathamesh thereafter
went to the spot of incident instead of going to his sister's house. When
PW-7 Prathamesh went to the said spot, the dead body of the victim girl
was already taken outside the pit. Tahasildar Madam (PW-14), villagers and
police were present on the said spot. PW-7 Prathamesh saw the dead body
of victim girl. That the mother of the victim girl identified the said dead
body.
In the detailed cross-examination, this witness has admitted
that he, Sunil Atugade and accused were the student of Dadasaheb
Undalkar High School and Junior College, Undale. That the accused was
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studying in science faculty. That he and accused were studying in the same
class. During the tenure of junior college the accused was having good
character and was good in study.
11 PW-8 is Subhash J. Karande. This witness is panch to the spot
panchanama where the dead body of the victim girl Miss. Vaishnavi was
discovered at the instance of the accused. The said panchanama is at
Exhibit 34. This witness has stated that the accused gave memorandum that
he was ready to show the spot where he has concealed the steel pot (Pati)
and slack of deceased Miss. Vaishnavi and also showed the spot from
where he brought the earth to bury the dead body of Miss. Vaishnavi. The
said memorandum panchanama is at Exhibit 33. In pursuance of the said
memorandum panchanama the accused showed the spot where he had
committed rape over Miss. Vaishnavi and thereafter murdered her. The
accused thereafter showed the grass land known as 'Hirdiche Mohol'. At the
said spot, the said witness and police found one identity card of the accused
issued by Dadasaheb Undalkar High School, Undale. The accused had
informed the said witness and other persons that he was at the said spot
along with the dead body of Miss. Vaishnavi till evening. The accused
thereafter showed one land where there was standing crop of Jawar. The
accused showed one silver ornament namely Painjan which was lying in
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the said Jawar crop. The Police seized the said ornament. The accused
thereafter showed the spot from where he had brought the earth. It was the
land of Kisan Sawant and the said land was ploughed. At that spot the earth
was scattered. The accused thereafter walked little towards Kondaiwadi and
after some distance from bushes of Shend produced one steel pot (Pati).
The police seized the said pot by following due procedure. The said
detailed panchanama effected at the instance of the accused is at Exhibit
34.
In a detailed cross-examination, this witness has admitted that
the distance between the spot of incident where the dead body was found
and the spot of incident which was in the land of Shankar Bagat (the
accused committed rape and murdered Miss. Vaishnavi here) was about
1.1/2 K.M. This witness has denied the suggestion that, he saw steel pot
(article-A) for the first time in the Court.
12 PW-9 is Vithal Bapu Sawant. PW-9 in his testimony has stated
that adjacent to his agricultural land, there is boundary of village Enpe.
That his land is situated at village Kondaiwadi known as 'Chid'. That on
6.11.2013, he along with his wife had been to their agricultural land for
harvesting the groundnut crop. That at about 2.30 p.m., he went to bring
water from stream which is within the jurisdiction of village Enpe. At that
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time he saw one boy aged about 19 years in suspicious condition. While
PW-9 was returning to his land, he saw the said boy again. He harvested
the groundnut crop till 5.30 p.m. and while he was returning to his house he
again saw the said suspected boy on the same spot. That on 7.11.2013 at
about 3.30 p.m. he saw police personnel on the Kondaiwadi Enpe road near
land of Baban Shankar Dargade. At that time he saw one boy in the custody
of police. PW-9 has identified the said boy which he had seen on 6.11.2013
while going to the stream. PW-9 has identified the said boy in the Court as
the accused herein.
In the cross-examination, this witness has admitted that when
he saw the said suspected boy, he did not ask him about his name. No other
material which is useful to the accused has been elicited in the cross-
examination of this witness.
13 PW-10 is Shri Sachin Shamrao Mohite, a photographer by
profession. This witness has snapped photographs of the spot of incident
and other places as per instructions of the police. This witness has
identified 20 photographs which he had taken at the instance of police.
14 PW-11 is Dr. Sunil Doulatrao Kamble. PW-11 in his testimony
has stated that he was attached to Rural Hospital, Shirala as a Medical
Officer since 2007 to 2013. That on 7.11.2013, API Kasegaon Police
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station sent the dead body of Kum. Vaishnavi Hanmant Shirsat to Rural
Hospital Shirala. That on 7.11.2013 between 8.00 p.m. to 10.00 p.m. he
performed autopsy on the dead body of Miss. Vaishnavi Shirsat.
On external examination, he found dead body was of a female.
The age of the said girl was about 7 years. Rosary coloured frock was on
the dead body. That the condition of the dead body was thin built and cold.
The regarmortis was slightly present over upper and lower extrimities neck.
Eyes were half opened and swollen. Patichiel hemmorrhage observed over
both conjective. Tounge cynosed, oedamataus inside mouth cavity. Nasal
blood oozing dark coloured. Nails deeply cynosed. Posterior vaginal wall
tear ½ cm x ½ cm x ½ cm towards anal region. External and internal vagina
dark blood stains. Finger flexed at the elbow join and deeply cynosed. He
also found both lower limbs extended and flexed at knee joint. Nails
cynosed.
PW-11 noticed the following surface injuries:-
"1. As mentioned in column No.15
2. Small abrasion ½ c.m. skin deep, near right side of neck
with small contusion about 2 c.m. x 1 c.m. beneath it.
3. Abrasion 5 c.m. x 5 c.m. skin deep over left cheek redish in
colour.
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4. Abrasion 10 c.m. x 7 c.m. over both side of chest.
5. Abrasion 12 c.m. x 8 c.m. over abdomen blackish in colour.
6. C.L.W. at right leg, lower end of thigh to ankle joint 15 c.m.
x 7 c.m. skin deep. Expour of muscle.
7. Abrasion left thigh 8 c.m. x 4 c.m. skin deep
8. Abrasion over back 19 c.m. x 8 c.m. skin deep."
On external examination, PW-11 noticed fracture of superior
horn of thyroid cartilage. Laynax, Traceha and Brounchl Congested Larnx,
trachea and surrounding muscles with hemorrhage. Right lung and left
lung-both lungs odematous and congested. Heart empty and large vessels
full of blood. Tongue deeply cynosed, mouth cavity froth with
bloodstained. Stomach contains 100 M.L. gastic sereation with water.
Organs of generation-Secondary sexual organs not developed.
PW-11 thereafter gave cause of death as " due to asphyxia due
to throttling". PW-11 has proved Postmortem report which was in his hand-
writing. The said Postmortem report is at Exhibit 40. PW-11 has stated that
as per the injuries mentioned in para-10 of Postmortem report (Exhibit 40)
there was sexual assault. That injury mentioned in para-17(2) was sufficient
to cause death and the said injury was corresponding with fracture of
superior horn of thyroid cartilage. PW-11 has opined that, above referred
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fracture injury was possible due to pressing of neck. He has also stated that
as per condition of the dead body the dead body might have been dragged
on hard and blunt object having grass. That in view of injury nos.3 to 8
mentioned in para-17 of postmortem report, the dead body might have been
dragged upto 50 to 100 meters. That C.L.W. on right leg of dead body
might have been caused due to dragging of dead body on hard surface. PW-
11 has issued advance cause of death certificate which is at Exhibit 41. PW-
11 has opined that death of Miss. Vaishnavi might have been occurred 24
hours to 36 hours prior to conducting postmortem. The cause of injury
sustained by Miss. Vaishnavi was due to dragging of her dead body on hard
surface. PW-11 has further opined that injury nos.1 and 2 mentioned in
column no.17 of postmortem report are antemortem and age of injury was 2
to 4 hours prior to death. The said two injuries were grievous injuries.
In the cross-examination, PW-11 has admitted that tongue was
inside the mouth. He has further admitted that there was no ligature mark
on the neck of the dead body. That 24 hours to 36 hours prior to the
postmortem of the dead body, death of the said girl might have occurred.
15 PW-12 is Smt. Balabai Maruti Yadav. She has deposed that the
accused Vitthal is son of her brother Tukaram Atugade. That on 6.11.2013
she received a message from her parental house about sickness of her
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mother. She left her matrimonial house at about 11.00 a.m. and was
proceeding to Atugadewadi by walk. While going to her parental house at
Atugadewadi, the accused met her near one bridge. That the daughter
(deceased) of Smt. Kavita was with him. That Smt. Kavita was daughter of
her brother Laxman. PW-12 asked the accused as to where he was going, to
which, the accused replied that, he was going to Atugadewadi. The accused
along with daughter of Smt. Kavita went to village Atugadewadi and PW-
12 went to the house of her mother. At that time, a frock of rosary colour
was on the person of the deceased. This witness has further deposed that
the elder daughter of Smt. Kavita was with the accused when she went to
the house of her mother. That on 7.11.2013 at about 9.00 a.m. PW-12
received a phone call from her brother Laxman Atugade who enquired with
her as to whether the accused and Miss. Vaishnavi (deceased) had been to
her house. PW-12 thereafter in the afternoon went to Atugadewadi from
Gavaliwadi.
In the cross-examination, PW-12 has admitted that the Police
did not read over the statement to her. The various suggestions given by the
defence have been denied by this witness. In her further cross-examination
she has admitted that on 6.11.2013 when she reached the house of her
mother, she told Smt. Kavita (PW-1) that the accused was with her
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daughter and went to Atugadewadi.
16 PW-13 is Shri Akaram alias Balaso Dhondiba Atugade. PW-13
in his testimony has stated that Smt. Kavita Shirsat (PW-1) was the
daughter of his brother Laxman Atugade and her matrimonial house is at
village Shirsatwadi. That Smt. Kavita was having two daughters namely
Vaishnavi and Varsha. That Tukaram Atugade is his fifth brother and
resides behind his house. That the accused is the son of Tukaram Atugade.
The accused is educated upto 12th standard from Dadasaheb Undalkar High
School at Undale. That on 6.11.2013 at about 3.00 p.m., he returned from
his agricultural land. At that time Smt. Kavita Shirsat told him that accused
along with her daughter Miss. Vaishnavi had gone to Sayyadwadi for his
hair-cut. However, the accused did not return home till that time. At about
10.00 p.m. his brother Laxman along with Smt. Kavita went to Kokrud
Police Station to lodge the missing report. That on 7.11.2013, at abut 9.00
a.m. to 9.30 a.m. he received phone call from Prathamesh Jadhav (PW-7)
and the said witness informed him that the accused was at Ghogaon. PW-13
then along with his son Uttam and nephew Ganesh went to village
Ghogaon. While proceeding towards village Ghogaon, at Yelgaon Phata he
noticed the accused, however, Miss. Vaishnavi was not with him. He
enquired with the accused about Miss. Vaishnavi and the accused told him
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that on 6.11.2013 he took Vaishnavi in a grass land at Kondaiwadi and
committed rape over her. The accused also informed him that he pressed
the neck of Miss. Vaishnavi, as he apprehended that she would disclose the
said incident to others. The accused also informed that the dead body of
Vaishnavi was concealed in the adjacent bushes of Shend, near one bridge
on the Kondaiwadi to Enpe road. PW-13 along with accused returned to his
house. Within five to ten minutes the Police from Kokrud Police Station
reached to his house. The accused also narrated the said incident to the
police out of fear. The accused thereafter told the Police that he will show
the place where he had buried the dead body of Miss. Vaishnvi. The
accused thereafter took the said witness and other persons to the spot which
was near to one bush and adjacent to Kondaiwadi - Enpe road near one
bridge. At the said spot, fingers of the leg of Miss. Vaishnavi were seen
protruding. In the meantime Tahasildar Madam of Shirala and Police
officer of Kasegaon police station also came at the spot. The Police
removed the earth from the dead body and took it out. PW-13 saw the dead
body and identified it as of Miss. Vaishnavi. There were abrasions on her
face, chest, back and legs. The blood which had oozed out from the private
part was dried on her right thigh. When PW-13 saw the dead body of Miss.
Vaishnavi, he was sure that the accused committed rape over Miss.
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Vaishnavi and subsequently murdered her by pressing her neck.
In his detailed cross-examination, this witness has admitted
that he had come to the Court along with his sister Smt. Balabai (PW-12)
and his brother Laxman Atugade. That within ten minutes he came from
Atugadewai along with accused from Yelgaon Phata. An omission that PW-
13 did not state before the police that there was dry blood on the right thigh
of Miss. Vaishnavi has been brought on record by the defence. Apart from
the aforesaid admissions, no other material which is useful to the accused
has been brought n record.
17 PW-14 is Smt. Vijaya Sudhakar Yadav, the Tahasildar and
Executive Magistrate Shirala, during the period from 8.6.2011 to
25.8.2014. She has deposed that on 7.11.2013 at about 2.00 p.m. she
received intimation from the Police Constable of Kasegaon Police Station
to remain present for conducting panchanama on the dead body of one girl
at Kondaiwadi. The intimation letter is at Exhibit 49. PW-14 thereafter
went to the said spot which was within the jurisdiction of Kondaiwadi at
2.30 p.m. to 3.00 p.m. She saw the spot of incident. The fingers of legs
were appearing out of the earth. That the dead body was buried in the land
of Baban Shankar Dargade, under the bush. That after the dead body was
removed from the pit, the mother of victim girl, Smt. Kavita (PW-1)
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identified the said dead body. PW-14 noticed that the body of the said girl
was slim. The frock of rosary colour was on the dead body and it was
stained with blood. That the blood had oozed out from the nose. That there
were injuries on her right cheek and abrasions over left cheek from
forehead. That there were abrasion marks on the chest. That there was
reddish abrasion mark on the abdomen. There were also abrasions on the
hands from elbow joint. The nails of hands were blackish and bluish. PW-
14 also noticed abrasion on the legs. That the private part of the body was
torn and blood which had oozed out from the private part had dried on the
right thigh. After completion of inquest panchanama, PW-14 signed it. The
said inquest panchanama is at Exhibit 15.
In the cross-examination, this witness has admitted that she did
not prepare rough sketch map where the dead body was found. That the
distance between Shirala to Kondaiwadi is about 16 to 17 km. That on the
spot of incident, the police from Kasegaon, Shirala and Kokrud Police
Station were present. That at the time of inspection of the dead body of
Miss. Vaishnavi, the said spot was surrounded by lady constable and the
said spot was covered by clothes.
18 PW-15 is Shri Bhimrao D. Waghmare, Assistant Police
Inspector, then attached to Kokrud Police Station.. PW-15 has deposed that
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on 6.11.2013, Smt. Kavita lodged the report about missing of her daughter
Miss. Vaishnavi and her cousin brother i.e. accused Vitthal. PW-15 was
incharge of Kokrud Police Station on 6.11.2013 and he recorded the said
missing report bearing No.11 of 2013 which is at Exhibit 11. That on
7.11.2013, at about 11.00 a.m, with a view to make an enquiry about
missing of Miss. Vaishnavi and accused, PW-15 went to the house of
Tukaram Atugade and came to know that the accused had arrived there.
PW-15 therefore enquired with the accused. At that time Smt. Kavita,
Tukaram Atugade i.e. father of accused and his uncle were present. That the
accused informed PW-15 and all the persons that, he took Vaishnavi in the
hilly area of village Kondaiwadi and committed rape over her and
subsequently murdered her. That he buried her dead body near Kondiwadi-
Enpe road near bush. As per the say of the accused, PW-15 and other
persons went to the said spot by police jeep. The accused showed them the
spot where the dead body of Miss. Vaishnavi was buried. PW-15 saw the
said spot of incident. That the fingers of legs of Miss. Vaishnavi were
protruding out from the earth. The Tahasildar Madam from Shirala also
arrived at the said spot. When the process of spot panchanama and inquest
panchanama was being carried out, Smt. Kavita (PW-1) lodged the FIR
which is at Exhibit 12. PW-15 sent the said FIR (Exhibit 12) to Kokrud
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Police Station along with one Police Constable, Shri Jadhav to register the
crime. The letter/order issued by PW-15 for registering the FIR is at Exhibit
52. The Police registered the crime bearing No.14 of 2013 under Section
302 of IPC and the investigation of the said crime was entrusted to PW-15.
PW-15 arrested the accused and informed PSO of Kokrud Police station on
phone to take entry about the arrest of accused. After the arrest of the
accused, he gave memorandum statement before PW-15 and expressed his
desire to show the spot where he committed rape over Miss. Vaishnavi. The
memorandum statement is at Exhibit 33. In pursuance of the said
memorandum statement, the accused showed the hilly area of Kondiwadi
known as 'Hirdiche Mohol' and showed the spot where he committed rape
over Miss. Vaishnavi. PW-15 noticed that at the said spot the grass had
grown upto 4 feet and it was bent. PW-15 found one identify card of
accused Vitthal at the said spot. The said identity card was issued by the
High School at Undale village. PW-15 seized the said identity card in the
presence of two pahch-witnesses. The accused thereafter showed the spot
where he had kept the dead body of Miss. Vaishnavi till late evening on the
date of incident. The accused showed the spot which was in the land of
Bandu Sawant. At the said spot PW-15 found one silver ornament namely
Painjan and the same came to be seized. The accused thereafter walked
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about four to five feet and stopped there. The said spot was land of Rajaram
Sawant. At the said spot one more silver ornament namely Painjan was
found lying. The same was also seized by PW-15. The accused thereafter
showed the road by which he went to the spot of burial of dead body of
Miss. Vaishnavi. The accused also showed the spot from where he took
earth. The said spot was situated in the lands of Kisan Sawant and the land
was ploughed. The accused thereafter walked upto 442 ft. and stopped near
one three of Nigdi. The accused produced one steel pot (pati) which was
concealed in the bush. The said pot was seized by PW-15. The accused
thereafter went towards Kondaiwadi and at a distance of about 163 feet he
stopped near one bush of Shend. The accused produced one slack which
was kept in the said bush. PW-15 also seized the said slack. PW-15
prepared a detailed panchanama as per the spot shown by the accused. The
said panchanama is at Exhibit 34. PW-15 has also identified seized articles
as slack (artcle-B), the ornament namely Painjan (article-C and D), steel
pot (article-I) and identity card (Exhibit-27). PW-15 also recorded
statements of Akarama Atugade (PW-13), Shri Laxman and Smt. Balabai
Yadav (PW-12). PW-15 prepared rough sketch map of the spot shown by
the accused which is at Exhibit 53. PW-15 thereafter took personal search
of the accused and in presence of two persons seized the clothes which
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were on the person of accused. The seizure panchanama of clothes of
accused is at Exhibit 17. PW-15 thereafter sent the accused for medial
examination at Shirala by issuing letter to the Medical Officer. The said
letter is at Exhibit 54. PW-15 collected death extract certificate of Miss.
Vaishnavi. That on 10.11.2013, PW-15 called the complainant Smt. Kavita
(PW-1) and in presence of two pancha-witnesses he showed the seized
articles to the complainant. The complainant identified the seized articles.
PW-15 thereafter prepared the panchanama about opening of seal of
enevelope and sealing of the said envelope again. The said panchanama is
at Exhibit 27.
PW-15 thereafter sent the muddemal property to the Chemical
Analyser, Mumbai along with covering letter. The said letter is at Exhibit
55. After completion of the investigation, PW-15 submitted chargesheet
against the accused in the Court of J.M.F.C., Shirala. The death extract
certificate of Miss. Vaishnavi is at Exhibit 56.
In the detailed cross-examination, no material at all, which is
useful to the accused has been elicited. It appears to us that the cross-
examination of this witness proceeded by putting him stock questions and
suggestions.
19 PW-16 is Shri Namdeo K. Patil. PW-16 was then attached to
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the Primary Health Centre, Kokrud. He has deposed that on 8.11.2013 the
police produced the accused before him for his medical examination. He
examined the accused. He found that there was white stigma on glance
penis. That there was no hormonal discharge. PW-16 collected samples of
blood, semen, pubic hair and sample of nails of accused. After conducting
medical examination, PW-16 found that the accused was able to perform
sexual intercourse. PW-16 accordingly issued a medical certificate which is
at Exhibit 61.
20 PW-17 is Shri Dhondiram G. Kamble, Assistant Sub-Inspector
then attached to Kokrud Police Station. PW-17 has deposed that on
7.11.2013, when he was on duty as PSO at Kokrud Police station, Police
Constable Shri Jadhav brought the FIR recorded by API Shri Waghamare
(PW-15). As per the said FIR, he registered the crime bearing No.40 of
2013 under Sections 302, 376, 201, 363 and 366 of IPC and Section 4 of
Protection of Children from Sexual Offences Act, 2012. He sent the said
FIR to J.M.F.C., Shirala.
21 PW-18 is Shri Balkrishna Y. Patil, Assistant Sub-Insector then
attached to the Kokrud Police station. PW-18 has deposed that on
6.11.2013 when he was on duty as PSO at Kokrud Police Station, Smt.
Kavita (PW-1) resident of Shirsatwadi came and lodged the missing report
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of her daughter. The said missing report bearing No.11 of 2013 is at
Exhibit 11.
It is to be noted here that in the cross-examination of PW
No.16, PW-17 and PW-18 no material which is beneficial to the accused
has been elicited.
22 PW-19 is Shri Bapusaheb N. Shinde, Assistant Police
Inspector then attached to Kasegaon Police Station between March 2011 to
March 2014. PW-19 in his deposition has stated that on 7.11.2013 at about
1.15 p.m. the Police Head Constable Shri Pawar from Kokrud Police
Station informed Kasegaon Police Station on telephone that the girl who
was missing as per the missing complainant No.11 of 2013 of Kokrud
Police Station is found in dead, burried condition at Kondaiwadi in the
land of Baban Shankar Daragade. He thereafter effected entry in the station
diary of Kasegaon Police Station dated 7.11.2013. The said entry is Exhibit
66. He thereafter registered AD No.34 of 2013. PW-19 thereafter issued a
letter to Tahasildar, Shirala which is at Exhibit 49. He then went to the spot
of incident at Kondaiwadi. The said spot was near the Enpe to Kondaiwadi
road. He reached at the said spot of incident at about 2.00 p.m. In the
presence of panch witness and Tahasildar of Shirala, PW-19 took out the
dead body by removing the earth on it. He inspected the injuries and
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conducted inquest panchanama of the dead body. The inquest panchanama
is at Exhibit 15. PW-19 thereafter he sent the said dead body to the Rural
Hospital, Shirala for performing autopsy through lady constable namely
Smt. Sutar. PW-19 thereafter drew the spot panchanama where the dead
body was buried. The said panchanama is at Exhibit 32. He also drew
rough sketch map of the said spot of incident which is at Exhibit 67. He
then returned to Kasegaon Police Station and handed over the muddemal
property i.e. sample of earth to the Muddemal Clerk of the Police Station.
That the lady constable Smt. Sutar produced the frock which was on the
person of the said victim girl. The same was seized by effecting
panchanama which is at Exhibit 21. He then sent all the papers of enquiry
pertaining to AD No.34 of 2013 along with muddemal property to Kokrud
Police Station for investigation in the crime registered by the said Police
station.
In the cross-examination of this witness, no material which is
useful to the accused is elicited and it appears to us that the said cross-
examination proceeded by putting general questions to this witness.
23 After taking into consideration the evidence adduced by the
prosecution witnesses, according to us, the following circumstances emerge
on record as against the accused:
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(1) Last seen with the deceased Miss. Vaishnavi by PW-1
Smt. Kavita and PW-12 Smt. Balabai Yadav
(2) Extra judicial confession given to Shri Akaram @
Balaso Atugade (PW-13).
(3) Accused showed the place where the dead body was
buried in presence of panch-witness namely Shri
Subhash Karande (PW-8).
(4) The accused showed the spot where he committed rape
on the victim girl in the presence of panch-witness Shri
Subhash Karande (PW-8) and an identity card of the
accused was found at the said spot.
(5) From the spot of rape on the way to the spot of burial of
dead body, two Painjans (ornaments) of the victim
girl were found.
(6) The discovery of slack of the deceased girl and the pot
(pati) which was used for pouring earth at the instance
of accused in the presence of PW-8 (Exhibit 34).
(7) PW-9 Vitthal Sawant saw the accused near the spot of
rape on 6.11.2013 in suspicious condition.
24 At the outset it is to be noted here that, we find substance in the
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contention raised by Shri Apte, the learned Counsel for the accused that the
offence under Section 363 and 366 of IPC is not proved as against the accused.
PW-1 Smt. Kavita in her testimony has specifically stated that the accused
informed her that he was going to have his hair-cut at Sayyadwadi and thereafter
with her permission, he took her daughter Miss. Vaishnavi (victim) along with
him and therefore according to us the ingredients of Section 363 and 366 of the
IPC i.e. kidnapping a person from lawful guardianship and/or abducting or
inducing a woman to compel her marriage etc. are are attracted in the present
case.
25 The learned Counsel for the accused thereafter contended that
though according to the prosecution the dead body of the victim girl was
recovered at the instance of accused, however, no previous statement made by
accused in relation to the said discovery was reduced in writing. In support of
his contention, he placed reliance on the decisions of the Supreme Court in the
case of Prabho Vs. State of U.P. reported in AIR 1963 SC 1113 and in particular
paragraph-9 of the said decision wherein it is observed as under
"9. The main difficulty in the case is that the evidence
regarding the recovery of blood stained axe and blood stained
shirt and dhoti is not very satisfactory and the courts below
were wrong in admitting certain statements alleged to have
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been made by the appellant in connection with that recovery.
According to the recovery memo the two witnesses who were
present when the aforesaid articles were produced by the
appellant were Lal Bahadur Singh and Wali Mohammad. Lal
Bahadur Singh wasexamined as prosecution witness No. 4.
He did give evidence about the production of blood stained
articles from his house bythe appellant. The witness said that
the appellant produced the articles from a tub on the eastern
side of the house. The witnessdid not, however, say that the
appellant made any statements relating to the recovery. Wali
Mohammad was not examined at all. One other witness Dodi
Baksh Singh was examined as prosecution witness No. 3.
This witness said that a little before the recovery the Sub-
Inspector of Police took the appellant into custody and
interrogated him; then the appellant gave out that the axe with
which the murder had been committed and his blood stained
shirt and dhoti were in the house and the appellant was
prepared to produce them. These statements to which Dobi
Baksh (P.W. 3) deposed were not admissible in evidence.
They were incriminating statements made to a police officer
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and were hit by Sections 25 and 26 of the Indian Evidence
Act. The statement that the axe was one with which the
murder had been committed was not a statement which led to
any discovery within the meaning of s. 27 of the Evidence
Act. Nor was the alleged statement of the appellant that the
blood stained shirt and dhoti belonged to him was a statement
which led to any discovery within meaning of s. 27. Section
27 provides that when any fact is deposed to and discovered
in consequence of information received from a person
accused of any offence, in the custody of a police officer, so
much of such information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby discovered may
be proved. In Pulukuri Kotayya v. King Emperor, 74 Ind App
65: the Privy Council considered the true interpretation of s.
27 and said :
" It is fallacious to treat the 'fact discovered' within the section
as equivalent to the object produced; the fact discovered
embraces the place from which the object is produced and the
knowledge of the accused as to this and the information given
must relate distinctly to this fact. Information as to past user
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or the past history, of the object produced is not related to its
discovery in the setting in which it is discovered. Information
supplied by a person in custody that 'I will produce a knife
concealed in the roof of my house' does not lead to the
discovery of a knife; knives were discovered many years ago.
It leads to the discovery of the fact that a knife is concealed in
the house of the informant to his knowledge, and if the knife
is proved to have been used in the commission of the offence,
the fact discovered is very relevant. But if to the statement the
words be added 'with which stabbed A.', these words are
inadmissible since they do not relate to the discovery of the
knife in the house of the informant." (p. 77 of Ind.App).
We are, therefore, of the opinion that the courts below
were wrong in admitting in evidence the alleged statement of
the appellant that the axe had been used to commit murder or
the statement that the blood stained shirt and dhoti were his. If
these statements are excluded and we think that they must be
excluded, then the only evidence which remains is that the
appellant produced from the house a blood stained axe and
some blood stained clothes. The prosecution gave no evidence
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to establish whether the axe belonged to the appellant or the
blood stained clothes were his."
On going through the decision in the case Prabhoo (supra), we find that it is not
stated anywhere that as the statement made by the accused was not reduced into
writing, the recovery cannot be taken into consideration. On the other hand,
what this decision states is that in relation to the statement made by the accused
what parts are admissible and what parts are inadmissible. It was held that the
statement of the accused that he used the axe to commit the murder is
inadmissible. However, if the accused had stated that he will produce the axe
which was concealed by him in his house, it would be admissible. The Supreme
Court held that the Courts below were wrong in admitting the inadmissible
portion in the statement made by the accused.
26 In the present case even after inadmissible parts are excluded from
consideration of the evidence of PW-8 the panchwitness, in whose presence the
accused showed the spot where the dead body of Miss Vaishnavi was buried, it
is seen that the accused has stated that the dead body of the victim girl was in
the said land. The accused has categorically made statement firstly before Smt.
Kavita and thereafter in the presence of panch-witness PW-8 Shri Subhash
Karande and in pursuance of the said statement, the dead body of Miss.
Vaishnavi was discovered. That according to us the evidence of PW-8 Subhash
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Karande is corroborated by the evidence of Smt. Kavita (PW-1) on this aspect.
27 Mr. Apte, the learned Counsel for the accused thereafter placed his
reliance on the decision of the Supreme Court in the case of Niranjan Panja Vs.
State of West Bengal reported in (2010) 6 SCC 525. Mr. Apte pointed out that in
the said decision, it has been stated that for effecting a discovery, a statement has
to be recorded on the part of the accused showing his readiness to produce the
material object and it is only that part of the statement which is not
incriminating and leads to discovery which becomes admissible. In the said
case, the recovery was not relied upon because the weapon which was allegedly
produced by the accused was never produced before the Court and the
prosecution has also not given any explanation whatsoever about the
disappearance of this weapon. On carefully going through this decision, we find
that again it deals with the aspect as to what part of statement made by the
accused is admissible and the ratio in this decision is that only the part of the
statement which is not incriminating and leads to discovery becomes admissible.
The ratio of this decision does not appear to be that if a statement made by the
accused is not recorded, evidence relating to the discovery becomes
inadmissible. Mr. Apte also relied upon two judgments delivered by the
Supreme Court namely (1) Aher Raja Khima Vs. State of Saurashtra reported in
AIR 1956 SC 217 and (2) Vijender Vs. State of Delhi reported in (1997) 6 SCC
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171. The said two decisions also deal with Section 27 of the Indian Evidence
Act and the fact of discovery at the instance of accused.
28 It is well settled that the observations in a judgment cannot be de
hors the point which is sought to be raised and the facts in which such point is
raised. The observations cannot by themselves form the ratio of the decision. The
ratio of the decision is to be drawn after considering the facts of the case, the
point which is sought to be raised in the matter, the arguments which are
canvassed in support of rival contentions in relation to such point, the discussion
made by the Court with reference to such point canvassed by the counsel for the
parties and the ultimate decision arrived thereupon. On taking into consideration
all these aspects, the ratio of the decision has to be gathered. Any sentence in a
judgment cannot be read as a statutory provision and the ratio in that regard is
well settled by catena of decisions of the Apex Court. This has been clearly
explained in different decisions of the Apex court including in the matter of
Union of India & Ors Vs. Dhanwanti Devi & Ors.reported in (1996) 6 SCC 44.
It has clearly ruled therein that the decision is what it decides and not what
follows from it.
29 In the decisions in the case of Prabho (supra) and Niranjan Panja
(supra), the question did not arise specifically for consideration as to whether
failure to record the information given by the accused would render the evidence
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relating to discovery by the accused inadmissible. However, this question arose
directly for consideration before the Supreme Court in the case of Mohd. Arif
alias Ashfaq Vs State (NCT of Delhi) reported in (2011) 13 SCC 621 on which
the learned APP has placed reliance. In the said case, the same question as in the
present case specifically arose for consideration which can be seen from
paragraph 169 of the judgment which reads thus:-
"Now coming to the second argument of failure to record the
information, it must be held that it is not always necessary.
What is really important is the credibility of the evidence of
the investigating agency about getting information/statement
regarding the information from the accused. If the evidence
of the investigating officer is found to be credible then even
in the absence of a recorded statement, the evidence can be
accepted and it could be held that it was the accused who
provided the information on the basis of which a subsequent
discovery was made. The question is that of credibility and
not the formality of recording the statement. The essence of
the proof of a discovery under Section 27 of the Evidence Act
is only that it should be credibly proved that the discovery
made was a relevant and material discovery which proceeded
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in pursuance of the information supplied by the accused in
the custody. How the prosecution proved it, is to be judged by
the Court but if the Court finds the fact of such information
having been given by the accused in custody is credible and
acceptable even in the absence of the recorded statement and
in pursuance of that information some material discovery has
been effected then the aspect of discovery will not suffer from
any vice and can be acted upon."
30 In Suresh Chandra Bahri Vs. State of Bihar reported in 1955 Supp
(1) SCC80, no discovery statement was recorded by the investigating officer of
the information supplied by the accused to him. Further no public witness was
examined by the prosecution to support the theory that such an information was
given by the accused to him in pursuance of which some material discovery was
made. The Supreme Court, however, in spite of these two alleged defects,
accepted the evidence of discovery against the accused on the basis of the
evidence of the police officer. In the present case, we find the evidence of police
officer PW-15 Bhimrao Waghmare to be wholly credible and reliable. He has
not at all been shaken in his cross-examination. In such circumstances, we have
no hesitation in relying on his evidence which shows that the spot where the
dead body of the victim girl was buried was shown by the accused in presence
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of PW-8, the panch witness. In our view the decisions cited by the learned
Counsel for the accused are of no help to him.
31 Mr. Apte, thereafter would contend that when the alleged discovery
of the spot of rape, the spot of burial of the dead body and the spot of
concealment of slack of deceased was discovered at the instance of the accused,
he was handcuffed and therefore the said discovery cannot be relied upon in the
eyes of law. We are unable to accept the said submission for the reasons that,
there can be no doubt when the accused was handcuffed he may not be free
from fear of the police or duress or pressure. But, that itself cannot be a reason
to discard the recovery of weapon if it was otherwise found to be supported by
evidence of the panch witnesses and the Investigating Officer. That handcuffing
of a person by itself cannot be a reason to generalise the hypothesis that such a
discovery cannot be reliable. That each case will have to be examined in its own
peculiar circumstances. We are fortified in taking this view by the judgment
delivered by the Division Bench of this Court in the case of Putalabai
Bhimashankar Pattan Vs. State of Maharashtra reported in 2010 ALL MR (Cri)
2084. In the present case the accused in the presence of PW-8 Subhash
Karande, the panch witness, Smt. Kavita (PW-1) and Shri Bhimrao Waghamare
(PW-15) the Investigating officer made disclosure statement which has been
recorded as per Exhibit 33 in the form of memorandum statement. We therefore
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do not find any substance in the submission of Shri Apte in that behalf.
32 Mr. Apte, the learned Counsel for the accused thereafter contended
that the prosecution did not examine Mr. Uttam, son of PW-13 - Akaram @
Balaso Atugade and Mr. Ganesh, brother of accused, who according to him
were present when the accused gave the said extra judicial confession to Shri
Akaram @ Balaso Atugade (PW-13). He submitted that therefore an adverse
inference has to be drawn against the prosecution.
The learned APP in reply to the said contention relied on the
judgment in the case of Rohtash Kumar Vs. State of Haryana reported in 2013
ALL MR (Cri) 2620 (S.C.) and submitted that it is the discretion of the
prosecution to tender the witnesses to prove the case of the prosecution and the
Court will not interfere with the exercise of that discretion unless, perhaps, it
can be shown that the prosecution has been influenced by some oblique motive.
The Supreme Court enumerated that the prosecution is not bound to examine all
the cited witnesses and it drops the witnesses to avoid multiplicity or plurality
of witnesses. Even otherwise in the present case the evidence of PW-13
Akaram @ Balaso Atugade according to us is wholly reliable and trustworthy
and therefore thre is no need to the prosectuion to examine the said two
witnessers as claimed by the accused.
33 Mr. Apte thereafter submitted that the extra judicial confession
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given by the accused to PW-13 Akaram @ Balaso Atugade is very weak piece
of evidence and the same should not be relied upon.
While repelling the said contention the learned APP relied on the
judgment of the Supreme Court in the case of Chattar Singh & Anr. Vs. State of
Haryana reported in AIR 2009 SC 378, and in particular the paragraph Nos.17
and 18 of the said decision wherein the Supreme Court has observed as under:
"17 Confessions may be divided into two classes i.e. judicial
and extra-judicial. Judicial confessions are those which are
made before a Magistrate or a court in the course of judicial
proceedings. Extra-judicial confessions are those which are
made by the party elsewhere than before a Magistrate or
court. Extra-judicial confessions are generally those that are
made by a party to or before a private individual which
includes even a judicial officer in his private capacity. It also
includes a Magistrate who is not especially empowered to
record confessions under Section 164 of the Code of
Criminal Procedure, 1973 (for short the `Code') or a
Magistrate so empowered but receiving the confession at a
stage when Section 164 of the Code does not apply. As to
extra-judicial confessions, two questions arise: (i) were they
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made voluntarily? and (ii) are they true? As the section
enacts, a confession made by an accused person is irrelevant
in criminal proceedings, if the making of the confession
appears to the court to have been caused by any inducement,
threat or promise, (1) having reference to the charge against
the accused person, (2) proceeding from a person in
authority, and (3) sufficient, in the opinion of the court to
give the accused person grounds which would appear to him
reasonable for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference
to the proceedings against him. It follows that a confession
would be voluntary if it is made by the accused in a fit state
of mind, and if it is not caused by any inducement, threat or
promise which has reference to the charge against him,
proceeding from a person in authority. It would not be
involuntary, if the inducement, (a) does not have reference to
the charge against the accused person; or (b) it does not
proceed from a person in authority; or (c) it is not sufficient,
in the opinion of the court to give the accused person grounds
which would appear to him reasonable for supposing that, by
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making it, he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him.
Whether or not the confession was voluntary would depend
upon the facts and circumstances of each case, judged in the
light of Section 24 of the Indian Evidence Act, 1872 (in short
`Evidence Act'). The law is clear that a confession cannot be
used against an accused person unless the court is satisfied
that it was voluntary and at that stage the question whether it
is true or false does not arise. If the facts and circumstances
surrounding the making of a confession appear to cast a
doubt on the veracity or voluntariness of the confession, the
court may refuse to act upon the confession, even if it is
admissible in evidence. One important question, in regard to
which the court has to be satisfied with is, whether when the
accused made the confession, he was a free man or his
movements were controlled by the police either by
themselves or through some other agency employed by them
for the purpose of securing such a confession. The question
whether a confession is voluntary or not is always a question
of fact. All the factors and all the circumstances of the case,
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including the important factors of the time given for
reflection, scope of the accused getting a feeling of threat,
inducement or promise, must be considered before deciding
whether the court is satisfied that in its opinion the
impression caused by the inducement, threat or promise, if
any, has been fully removed. A free and voluntary confession
is deserving of the highest credit, because it is presumed to
flow from the highest sense of guilt. (See R. v. Warickshall)
It is not to be conceived that a man would be induced to
make a free and voluntary confession of guilt, so contrary to
the feelings and principles of human nature, if the facts
confessed were not true. Deliberate and voluntary
confessions of guilt, if clearly proved, are among the most
effectual proofs in law. An involuntary confession is one
which is not the result of the free will of the maker of it. So
where the statement is made as a result of harassment and
continuous interrogation for several hours after the person is
treated as an offender and accused, such statement must be
regarded as involuntary. The inducement may take the form
of a promise or of a threat, and often the inducement involves
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both promise and threat, a promise of forgiveness if
disclosure is made and threat of prosecution if it is not. (See
Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always
attached to the confession alternative while a threat is always
attached to the silence alternative; thus, in one case the
prisoner is measuring the net advantage of the promise,
minus the general undesirability of a false confession, as
against the present unsatisfactory situation; while in the other
case he is measuring the net advantages of the present
satisfactory situation, minus the general undesirability of the
confession against the threatened harm. It must be borne in
mind that every inducement, threat or promise does not
vitiate a confession. Since the object of the rule is to exclude
only those confessions which are testimonially untrustworthy,
the inducement, threat or promise must be such as is
calculated to lead to an untrue confession. On the aforesaid
analysis the court is to determine the absence or presence of
an inducement, promise etc. or its sufficiency and how or in
what measure it worked on the mind of the accused. If the
inducement, promise or threat is sufficient in the opinion of
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the court, to give the accused person grounds which would
appear to him reasonable for supposing that by making it he
would gain any advantage or avoid any evil, it is enough to
exclude the confession. The words "appear to him" in the last
part of the section refer to the mentality of the accused.
18. An extra-judicial confession, if voluntary and true and
made in a fit state of mind, can be relied upon by the court.
The confession will have to be proved like any other fact.
The value of the evidence as to confession, like any other
evidence, depends upon the veracity of the witness to whom
it has been made. The value of the evidence as to the
confession depends on the reliability of the witness who
gives the evidence. It is not open to any court to start with a
presumption that extra- judicial confession is a weak type of
evidence. It would depend on the nature of the
circumstances, the time when the confession was made and
the credibility of the witnesses who speak to such a
confession. Such a confession can be relied upon and
conviction can be founded thereon if the evidence about the
confession comes from the mouth of witnesses who appear
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to be unbiased, not even remotely inimical to the accused,
and in respect of whom nothing is brought out which may
tend to indicate that he may have a motive of attributing an
untruthful statement to the accused, the words spoken to by
the witness are clear, unambiguous and unmistakably convey
that the accused is the perpetrator of the crime and nothing is
omitted by the witness which may militate against it. After
subjecting the evidence of the witness to a rigorous test on
the touchstone of credibility, the extra-judicial confession
can be accepted and can be the basis of a conviction if it
passes the test of credibility."
In the present case, the extra judicial confession given by the
accused to PW-13 Akaram @ Balaso Atugade, who is his real uncle, in our
considered view was free and voluntary is deserving highest credit because it
flows from the highest sense of guilt. As stated earlier, the accused has failed to
bring on record any material useful to him thereby creating doubt in the mind of
this Court about the credibility of the evidence of PW-13 Akaram @ Balaso
Atugade and the extra judicial confession stated therein. We therefore find the
said extra judicial confession given by the accused to the PW-13 Akaram @
Balaso Atugade fully credible.
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34 After taking into consideration the entire evidence available on
record, according to us it is proved by the prosecution that the deceased, Miss.
Vaishnavi was last seen in the company of accused, by Smt. Kavita (PW-1) and
Smt. Balabai Yadav (PW-12) on 6.11.2013, between 11.00 a.m. to 11.30 a.m.
That the accused was not traceable and did not return to his house till 11.00
a.m of 7.11.2013 when Akaram @ Balaso Atugade (PW-13) brought him from
village Ghogaon. That after receipt of information from PW-7 Prathamesh, PW-
13-Shri Akaram @ Balaso Atugade went to fetch the accused at village
Ghogaon where the accused gave him extra judicial confession. It is clear from
the evidence that the said extra judicial confession given by the accused was
voluntarily and without any duress or coercion and therefore the said extra
judicial confession can safely be relied upon without any demur. The contention
of Shri Apte that the extra judicial confession is a weak piece of evidence and
ought not have been relied upon by the learned Trial Court, cannot be accepted,
as according to us and as stated hereinabove, the said extra judicial confession
was given by the accused to PW-13 who is his real uncle immediately on
enquiry and without any pressure. It also appears to us that the said extra
judicial confession was given by the accused due to repentance of the crime
committed by him.
35 The next circumstance is that the appellant showed the spots/scene
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of offence where he firstly committed rape over the victim Miss. Vaishnavi, the
place where he thereafter kept the body of deceased Miss. Vaishnavi till the
evening and subsequently buried it, has been duly proved by the evidence of
PW-8 who is the panch-witness to the sai discoveries. The said witness has duly
proved the memorandum statement of accused (Exhibit 33) and panchanama
(Exhibit 34) by which the accused showed the aforesaid spots. It is to be further
noted that from the spot where the accused had committed the rape on the
victim girl, his college identity card was also found. The said identity card has
been identified by PW-6 Shri Mahadeo B. Patil, the Principal of Dasaheb
Undalkar College. When the accused showed the spots/pathways from which he
dragged the body of Miss. Vaishnavi, two paijans (ornament) of the said victim
were found at the time of recording panchanama (Exhibit 34). That PW-9 had
seen the accused on 6.11.2013 near the agricultural land between 2.30 p.m. to
5.30 p.m. in suspicious condition. It is the said spot which was discovered at the
instance of accused as the spot/scene where he had kept the body of deceased in
the intervening period. Thus, the presence of the accused at the said spot i.e.
near the field of Shri Vithal Sawant (PW-9) has been duly established by the
prosecution.
36 The another incriminating circumstance against the accused is that,
at his instance the slack which was worn by the deceased on 6.11.2013 has been
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discovered by the same panchanama Exhibit 34. The said slack has been
identified by Smt. Kavita (PW-1), mother of victim.
In view of the evidence of PW-11 Dr. Sunil Kamble, it is also
established that the victim Miss. Vaishnavi was raped on 6.11.2013 and we have
no hesitation in holding that the accused is the perpetrator of the present crime.
37 After going through the entire evidence adduced by the prosecution
which is available on record minutely, we are of the considered opinion that the
same is more than sufficient to sustain the conviction of the accused under
Sections 302 and 376 of IPC.
38 This leads us to deal with the important question i.e. whether the
death sentence should be confirmed. A convict hovers between life and death
when the question of gravity of the offence and award of adequate sentence
comes up for consideration. Mankind has shifted from the state of nature
towards a civilized society and it is no longer the physical opinion of the
majority that takes away the liberty of a citizen by convicting him and making
him suffer a sentence of imprisonment. Award of punishment following
conviction at a trial in a system wedded to the rule of law is the outcome of
cool deliberation in the court room after adequate hearing is afforded to the
parties, accusations are brought against the accused, the prosecuted is given an
opportunity of meeting the accusations by
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establishing his innocence. It is the outcome of cool deliberations and the
screening of the material that leads to determination of the sentence after taking
into consideration all the aggravating and mitigating circumstances.
39 At this juncture a useful reliance can be placed on two celebrated
judgments of the Supreme Court in the case of Bachan Singh v. State of Punjab,
reported in (1980) 2 SCC 684 : 1980 SCC (Cri) 580 and Machhi Singh and Ors.
v. State of Punjab reported in (1983) 3 SCC 470 : 1983 SCC (Cri) 681, the
guidelines which are to be kept in view when considering the question whether
the case belongs to the rarest of the rare category for awarding death sentence
were indicated.
In Machhi Singh's case (supra) it was observed:
" The following questions may be asked and answered as a
test to determine the 'rarest of the rare' case in which death sentence
can be inflicted:
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in
favour of the offender? The following guidelines which emerge from
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Bachan Singh case (supra) will have to be applied to the facts of each
individual case where the question of imposition of death sentence
arises: (SCC p. 489, para 38):
(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.
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.
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In rarest of rare cases when collective conscience of the community
is so shocked that it will expect the holders of the judicial power
center to inflict death penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death penalty, death
sentence can be awarded. The community may entertain such
sentiment in the following circumstances:
(1) 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.
(2) 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 a cold-blooded murder for gains of a person vis--
vis whom the murderer is in a dominating position or in a position of
trust, or murder is committed in the course of betrayal of the
motherland.
(3) When murder of a 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
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another woman on account of infatuation.
(4) 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.
(5) When the victim of murder is an innocent child, or a helpless
woman or old or infirm person or a person vis--vis whom the
murderer is in a dominating position or a public figure generally
loved and respected by the community.
If upon taking an overall global view of all the circumstances in the
light of the aforesaid propositions and taking into account the
answers to the questions posed by way of the test for the rarest of
rare cases, the circumstances of the case are such that death sentence
is warranted, the court would proceed to do so".
40 It is the settled position of law that, the measure of punishment in a
given case must depend upon the atrocity of the crime; the conduct of the
criminal and the defenceless and unprotected state of the victim. Imposition of
appropriate punishment is the manner in which the courts respond to the
society's cry for justice against the criminals. Justice demands that courts
should impose punishment fitting to the crime so that the courts reflect public
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abhorrence of the crime. The courts must not only keep in view the rights of the
criminal but also the rights of the victim of crime and the society at large while
considering imposition of appropriate punishment. Showing undue sympathy
and imposing inadequate sentence would do more harm to the justice system
and undermine the public confidence in the efficacy of law and society would
not long endure under serious threats. If the courts did not protect the injured,
the injured would then resort to private vengeance. It is, therefore, the duty of
every court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed and the circumstances of
the offender.
41 The object of sentencing should be to see that the crime does not go
unpunished and the victim of crime as also the society have the satisfaction that
justice has been done to it. In imposing sentences, in the absence of specific
legislation, Judges must consider variety of factors and after considering all
those factors and taking an over-all view of the situation, impose sentence which
they consider to be an appropriate one. Aggravating factors cannot be ignored
and similarly mitigating circumstances have also to be taken into consideration.
42 It is the trite position of law that Justice is Supreme and justice
ought to be beneficial for the society so that the society is placed in a better-off
situation. Law courts exist for the society and ought to rise up to the occasion to
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do the needful in the matter, and as such ought to act in a manner so as to
subserve the basic requirement of the society. It is a requirement of the society
and the law must respond by being adaptable, it must change from time to time
so that it answers the cry of the people, the need of the hour and the order of the
day. In the present day society, such crime is now considered a social problem
and by reason therefore a tremendous change even conceptually is being seen in
the legal horizon so far as the punishment is concerned.
43 The learned APP after taking into consideration the facts of the case
submitted that it is the fit case to confirm the death sentence. She submitted that
looking to the fact that the accused has raped and brutally murdered the victim
child, it calls only for death penalty. She submitted that in similar cases where
the victim girl was minor and was raped and murdered, the Supreme court and
this Court have confirmed the death penalty to the accused persons. In support
of her contention, she relied upon the following decisions:
1. Laxman Naik Vs. State of Orrisa (1994) 3 SCC 381,
2. Kamta Tiwari Vs. State of M.P. (1996) 6 SCC,
3. State of U.P. Vs. Satish (2005) 3 SCC 114,
4. Shivaji @ Dadya Alhat Vs. State of Maharashtra AIR 2009 SC 56
5. Confirmation Case No.6 of 2013 State of Maharashtra Vs.
Dattatraya Ambo Rokade
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6. Vasanta Sampat Dupare Vs. State of Maharashtra (2015 2 S.CC.
7. State of Maharashtra Vs. Raju Jagdish Paswan 2013 ALL MR
(Cri) 1431.
8. Rajendra Pralhadrao Wasnik Vs. The State of Maharashtra 2012
ALL MR (Cri) 1375 (SC)
9. Confirmation Case No.1 of 2015 the State of Maharashtra Vs.
Shatrughna Baban Meshram.
44 At this stage, a useful reference can be made to the case of Rajendra
Wasnik v. State of Maharashtra reported in (2012) 4 SCC 37. In the said
decision, after considering the earlier decisions relating to the sentencing policy
in the cases of death sentence it was observed that, the Court then would draw a
balance-sheet of aggravating and mitigating circumstances. Both aspects have to
be given their respective weightage. The Court has to strike a balance between
the two and see towards which side the scale / balance of justice tilts. It was also
so observed in the landmark decision by the Constitution Bench of the Supreme
Court in the case of Bachan Singh v. State of Punjab reported in (1980) 2 SCC
684. In the case of Bachan Singh (supra) the Supreme Court observed that death
sentence ought to be given in the rarest of rare cases and only after drawing a
balance-sheet of aggravating and mitigating circumstances.
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45 In reply to the contention with respect to the confirmation of death
sentence, the learned Counsel for the accused submitted that the present case in
hand cannot be said to be case which would fall within 'rarest of rare' category
wherein the death sentence can be awarded or confirmed. He relied upon the
three decisions of the Supreme Court and one decision of this Court wherein in
similar circumstances, the Supreme Court and this Court commuted the death
sentence to life imprisonment. The said decisions are as under:
(1) Shankar Kisanrao Khade v. State of Maharashtra reported in
2013 DGLS (Soft) 323.
(2) Santosh Kumar Satishbhusan Bariyar v. State of Maharashtra
reported in 2009 DGLS (Soft) 796.
(3) Bantu @ Naresh Giri v. State of M.P. reported in
2001 DGLS (Soft) 1301.
Mr. Apte, the learned counsel appearing for the accused also placed
reliance on one of the decisions of this Court in the case of The State of
Maharashtra v. Sadashiv Jetappa Kamble in Cri. Confirmation Case No.1 of
2013 to which one of us (Smt. V.K. Tahilramani, J.) is a member.
46 The first decision on which reliance was placed is the case of
Shankar Khade (supra). Mr. Apte, the learned counsel appearing for the
Appellant-accused pointed out that in the said case the accused had committed
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the murder of a minor girl of about 11 years with intellectual disability
(moderate) after subjecting her to series of acts of rape. Accused No.1 therein
was convicted under Section 302 with death sentence and was also awarded
other sentences under different Sections of the Indian Penal Code.
It is to be noted here that the Supreme Court in the said case has
commuted the sentence of death penalty to life imprisonment and further
directed that the sentence awarded to the accused therein to run concurrently. In
the said decision, the Hon'ble Supreme Court after taking into consideration the
catena of decisions delivered by the Supreme Court and after analyzing the
same had reached to the conclusion that the death sentence be commuted in life
imprisonment. The Supreme Court in paragraph No.71 of the said decision has
observed as under :
"71. It seems to me that though the Courts have been
applying the rarest of rare principle, the Executive has taken
into consideration some factors not known to the Courts for
converting a death sentence to imprisonment for life. It is
imperative, in this regard, since we are dealing with the lives
of people (both the accused and the rape-murder victim) that
the Courts lay down a jurisprudential basis for awarding the
death penalty and when the alternative is unquestionably
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foreclosed so that the prevailing uncertainty is avoided. Death
penalty and its execution should not become a matter of
uncertainty nor should converting a death sentence into
imprisonment for life become a matter of chance. Perhaps the
Law Commission of India can resolve the issue by examining
whether death penalty is a deterrent punishment or is
retributive justice or serves an incapacitative goal."
47 The next decision on which Mr. Apte, the learned counsel
appearing for the Appellant-accused relied upon is in the case of Santosh Kumar
(supra). In the said decision, the Supreme Court after taking into consideration
the entire law with respect to the category of "rarest of rare" case and
commutation of death sentence to life imprisonment, commuted the death
penalty to rigorous imprisonment for life. The third decision on which Mr. Apte
placed reliance is in the case of Bantu @ Naresh Giri (supra). In the said case,
the Hon'ble Supreme Court confirmed the conviction of the Appellant under
Section 302 of the Indian Penal Code, but modified the sentence by commuting
the sentence of death to imprisonment for life and for the offence punishable
under Section 376 of the Indian Penal Code, the appellant was sentenced to
undergo rigorous imprisonment for ten years.
48 Mr. Apte, the learned counsel appearing for the Appellant-accused
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also relied upon the decision in the case of The State of Maharashtra v. Sadashiv
Jetappa Kamble in Cri. Confirmation Case No.1 of 2013 wherein a Division
Bench of this Court after taking into consideration the plethora of judgments of
the Supreme Court and the High Court commuted the sentence under Section
302 of the Indian Penal Code of death to life imprisonment. However, the High
Court ordered that the sentence under Section 376(2)(f) of the Indian Penal
Code shall run consecutive after serving the life imprisonment under Section
302 of the Indian Penal Code. Mr. Apte has also placed reliance on the
following decisions while praying for commutation of death sentence:-
1. Rajesh Kumar Vs. State of NCT Delhi (2011) 13 SCC 706
2. Duryodhan Rout Vs. State of Orissa (2014) 0 Supreme (SC)
53008.
3. State of Bihar Vs. Sikandar Ansari (2008) O Supreme (Pat)
28761.
4. State of Maharashtra Vs. Tulshiram s/o Mabu Potavi (2009) o
Supreme (MAH) 31142/(2010) O ALL MR (Cri. 789 Para 17 and
5. State Vs. Mohd. Shaikh Noor Hussain (2006) 4 Crimes (HC)
6. State of Gujrat Vs. Ratansingh @ Chinubhai Anopsinh
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(2014) 0 Supreme (SC) 52610/(2014) 4 SCC 16.
7. Shankarrao Kisanrao Khade Vs. State of Maharashtra (2013)
Supreme (SC 51855/(2013) 5SCC 546.
8. State of Maharashtra Vs. Ravindra @ Babu Suresh (2011)
ALL MR (Cri) 1.
9. Rajkumar Vs. State of Madhya Pradesh (Cri. Apeal 1419-1420 of
2013 dated 25.2.2014.
49 The Constitution Bench of the Supreme Court in the case of
Bachan Singh (supra) has observed that before the death sentence is imposed a
balance-sheet of aggravating and mitigating circumstances should be drawn and
thereafter the decision whether or not the death sentence is to be imposed should
be taken. Similar view is taken in a catena of decisions by the Supreme Court
including in the case of Rajendra Wasnik (supra).
50 In this view of the matter, we have proceeded to examine the
aggravating and mitigating factors in the present case.
The aggravating factors in the present case are that, the deceased
Miss. Vaishnavi was the daughter of cousin sister of the accused, the accused
after taking permission of Smt. Kavita (PW-1) took the victim girl with him on
the pretext for going to Sayyadwadi for his hair-cut. That on his way he firstly
committed rape on the said victim girl and subsequently he murdered her. That
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thereafter he buried the said dead body of the victim girl. That the said victim
minor girl Miss. Vaishnavi was innocent, helpless and defenceless.
51 The mitigating factors are that, on the date of commission of
offence, the accused was approximately only 20 years of age. That immediately
on the next date i.e. on 7.11.2013 he gave extra judicial confession of his guilt
to PW-13 Akaram @ Balaso Atugade, his real uncle. PW-7 Prathamesh who
noticed accused firstly on 7.11.2013 in his evidence has stated that the accused
was having good character and was good in study at college. It appears from the
evidence that the accused was remorseful of his misdid/crime and therefore at
the very first instance he gave the said extra-judicial confession to his uncle Shri
Akaram @ Balaso Atugade (PW-13). The accused has no criminal background
or any antecedents at his discredit.
52 After taking into consideration the entire evidence available on
record, we are of the considered opinion that it is not a case which falls in the
category of 'rarest of rare' case where the imprisonment of death sentence is
imperative. This is also not a case where the impositioin of any other sentence
would not serve the ends of justice or would be an inadequate sentence.
53 Thus once we draw the balance-sheet of aggravating and mitigating
circumstances and examined them in the light of facts and circumstances of the
present case, we have no hesitation in coming to the conclusion that this is not a
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case where the Court ought to have imposed the extreme penalty of death
sentence on the accused. In view of the same, we are unable to uphold the
confirmation of the death sentence of the accused. We may also note here that
we have observed the demeanor of the accused in the Court during the course of
hearing of the present appeal and it appeared to us that the accused has remorse
for the crime committed by him. We are after taking into consideration the
evidence on record, also of the opinion that the accused may not be a threat to
the society at large after his release from jail, after he undergoes sentences.
Therefore, while partly allowing the appeal filed by the accused only with
regard to the quantum of sentence we commute the death sentence awarded to
the accused to one of life imprisonment under Section 302 of IPC. We also
uphold the sentence awarded to the accused under Section 376 (2) (f) of IPC. In
our view, the ends of justice would sub-serve the purpose of sentencing if both
the sentences, are directed to run consecutive i.e. after the accused completes his
sentence under section 302, the sentence under Section 376(2)(f) start and the
accused to undergo the said sentence. While taking this view, we are fortified by
the decision of the Supreme Court in the case of Swamy Shraddananda v. State
of Karnataka reported in 2008(13) SCC 767. In the said case also the accused
had been sentenced to death. The Supreme Court felt that it was not a fit case to
award a death sentence but the Supreme Court observed that a sentence of life
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imprisonment which, subject to remission, normally works out to a term of 14
years would be grossly disproportionate and inadequate. The Supreme Court
further observed that in such case, the Court's option is limited only to two
punishments, one a sentence of imprisonment, for all intents and purposes, of
not more than 14 years and the other death, in which case the Court may feel
tempted and find itself nudged into endorsing the death penalty. Such a course
would indeed be disastrous. A far more just, reasonable and proper course
would be to expand the options and to take over what, as a matter of fact,
lawfully belongs to the Court, i.e. the vast hiatus between 14 years'
imprisonment and death. The Court, therefore, can substitute a death sentence
by life imprisonment for rest of life of convict or by a term in excess of fourteen
years and further to direct that the convict must not be released from the prison
for the rest of his life or for the actual terms as specified in the order, as the case
may be. Observing thus, the Supreme Court substituted the death sentence by
imprisonment for life and directed the accused shall not be released from prison
till the rest of his life.
54 At this stage a useful reference to the judgments of the Supreme
Court in the case of Ronny Vs State of Maharashtra reported in (1998) 3 SCC
625 and Ravindra Trimbak Chouthmal Vs State of Maharashtra reported in
(1996) 4 SCC 148. In the case of Ronny (Supra), the accused persons had
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committed gang rape and murder of a lady during the course of the same
incident. In this case, the Supreme Court felt it appropriate that the sentence
under section 376(2)(g) of I.P.C. for gang rape shall run consecutively after
serving the sentence for offence of murder i.e the Supreme Court directed that
the sentence of imprisonment under section 376(2) (g) of 10 years RI shall be
served after the sentence of life imprisonment is over. So also, in the case of
Ravindra Chouthmal (Supra), the Supreme Court directed that the sentence of
seven years RI for the offence under section 201 of the I.P.C. be directed to run
consecutively after the sentence of the life imprisonment had run its course. In
the case of Ravindra Chouthmal, the accused had murdered his wife and
thereafter to cause the evidence of the crime to disappear, he had cut the body
and thrown the head in the creek.
55 In a decision of this Court, in the case of State of Maharashtra Vs
Kamlakar Tanaji Shinde reported in 2010 All MR (Cri) 3415, the Division
Bench of this Court directed that sentence of imprisonment under Section 364
of IPC shall be served after serving sentence of imprisonment under Section 302
of IPC. Similar view was taken by this Court, in the decision in the case of Sunil
Anandrao. Sawant Vs Government of Maharashtra reported in 2010 All MR
(Cri) 1723 wherein this Court directed the sentence of three years RI under
Sections 307 shall run consecutively after serving the sentence for the offence
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of murder.
56 According to us, there can be no doubt that the offence committed
by the accused deserves severe condemnation and is a heinous crime, but after
taking into consideration the cumulative effect of the facts and circumstances
and on balancing the aggravating and mitigating circumstances of the case, we
do not think the present case falls in the 'rarest of rare' case.
57 Hence, were not inclined to confirm the sentence of death as stated
above. However, as stated earlier by us, we are inclined to make sentence of
imprisonment under Section 302 and 376(2)(f) of IPC consecutive. Thus after
taking into consideration the entire evidence available on record and after
having regard to the totality of the circumstances, we pass the following order:
(i) The conviction of the accused under Section 302 and 376(2)(f) of
IPC is maintained. The sentence of death awarded by the Trial
Court under Section 302 of IPC is commuted to life imprisonment
and fine imposed there of i.e. Rs.2000/- is maintained. In default of
payment of fine, the accused to undergo simple imprisonment for
one month;
(ii) The sentence of imprisonment for life under Section 376(2)(f) of
IPC is maintained.
(iii) The accused is acquitted of offence punishable under Section 363
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and 366 of IPC;
(iv) The conviction of the accused under Section 201 of IPC awarded
by the Trial court is maintained;
(v) The conviction of the accused under Sections 4, and 6 of the
Protection of Children From Sexual Offences Act as awarded by
the Trial Court is maintained;
(vi) The sentences awarded under Section 201 of IPC and under
Sections 4 and 6 of the
ig Protection of Children From Sexual
Offences Act to run concurrently with the sentence of life
imprisonment awarded under Section 302 of IPC;
(vii) The sentences of life imprisonment awarded for the offence
punishable under Section 376(2)(f) of IPC shall run consecutively
i.e. after the accused serving life imprisonment under Section 302
of IPC;
(viii) The accused is entitled for set off as contemplated under Section
428 of Cr. P.C. for the pre-conviction detention undergone by the
accused from the date of his arrest i.e. from 7.11.2013 till the date
of his conviction by the Trial Court i.e. upto 18.4.2015.
(ix) The Reference is answered accordingly and the appeal preferred by
the accused is partly allowed.
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58 Before parting with the present judgment, we may place on record
the efforts put in by the learned Advocate Shri Abhaykumar Apte appointed by
the Legal Aid Panel and we quantify his fees at Rs.20,000/- to be paid to him
by the High Court Legal Services Committee.
(A.S. GADKARI, J.) (V.K. TAHILRAMANI, J.)
