Bombay High Court
Achyut @ Bappa @ Babu S/O Kachru ... vs The State Of Maharashtra on 14 August, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL CONFIRMATION CASE NO.3 OF 2016
The State of Maharashtra
...APPELLANT
VERSUS
1) Krushna s/o Ramrao Ridde
2) Achyut @ Bappa
@ Babu s/o Kachru Chunche
...RESPONDENTS
...
Mr. M.M. Nerlikar, A.P.P. for Appellant-State.
Mr. S.G. Ladda Advocate for Respondent No.1.
Mr. R.G. Hange Advocate for Respondent No.2.
...
WITH
CRIMINAL APPEAL NO.527 OF 2016
Krishna s/o Ramrao Ridde,
Age-22 years, Occu:Business,
R/o-Choramba, Tq-Dharur,
Dist-Beed.
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
::: Uploaded on - 14/08/2017 ::: Downloaded on - 15/08/2017 02:36:04 :::
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2
...
Mr. S.G. Ladda Advocate for Appellant.
Mr. M.M. Nerlikar, A.P.P. for Respondent-State.
...
WITH
CRIMINAL APPEAL NO.507 OF 2016
Achyut @ Bappa @ Babu
s/o Kachru Chunche,
Age-23 years, Occu:Agril.,
R/o-Choramba, Tq-Dharur,
Dist-Beed.
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. R.G. Hange Advocate for Appellant.
Mr. M.M. Nerlikar, A.P.P. for Respondent-State.
...
CORAM: S.S. SHINDE AND
K.K. SONAWANE, JJ.
DATE OF RESERVING JUDGMENT : 4TH APRIL, 2017.
DATE OF PRONOUNCING JUDGMENT: 14TH AUGUST, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. In Special Child Case No.11 of 2015,
learned Special Judge, Majalgaon has awarded death
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sentence to both the accused therein, the
proceedings in the said case, have been therefore
forwarded to this Court for confirmation under
Section 366 of the Code of Criminal Procedure.
2. Pursuant to Production Warrant issued
during the course of hearing of the Appeals and
Confirmation Case, both the accused were produced
by the prosecution on each date of hearing, and
throughout the hearing they were present in the
Court Hall.
3. Both the accused have also preferred
separate Appeals, which were admitted by this
Court, and registered as Criminal Appeal No.527 of
2016 and Criminal Appeal No.507 of 2016. Criminal
Appeal No.527 of 2016 is filed by Accused No.1 -
Krishna s/o Ramrao Ridde, and Criminal Appeal
No.507 of 2016 is filed by Accused No.2 - Achyut
@ Bappa @ Babu s/o Kachru Chunche challenging the
Judgment and order dated 17th August, 2016, passed
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by learned Special Judge, Majalgaon in Special
Child Case No.11 of 2015. The Special Judge,
Majalgaon convicted Accused No.1 Krishna s/o
Ramrao Ridde and Accused No.2 Achyut @ Bappa @
Babu s/o Kachru for the offence punishable under
Section 449 read with Section 34 of the Indian
Penal Code (for short "I.P. Code") and sentenced
them to suffer rigorous imprisonment for a period
of seven years and also to pay a fine of Rs.1000/-
each, in default to suffer simple imprisonment of
two months. Accused No.1 and Accused No.2 are
further convicted for the offence punishable under
Section 354(B) read with Section 34 of the I.P.
Code and sentenced to suffer rigorous imprisonment
for a period of three years and also to pay fine.
Accused Nos.1 and 2 are further convicted for the
offence punishable under Section 376(2)(i) read
with Section 34 of the I.P. Code and sentenced
them to suffer rigorous imprisonment for life and
also to pay fine. Accused Nos.1 and 2 are further
convicted for the offence punishable under
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Section 4 of the Protection of Children from
Sexual Offences (POCSO) Act and sentenced them to
suffer rigorous imprisonment for a period of ten
years and also to pay fine. Accused No.1 - Krishna
s/o Ramrao Ridde and accused No.2 - Achyut @ Bappa
@ Babu s/o Kachru are further convicted for the
offence punishable under Section 302 read with 34
of the I.P. Code and they are sentenced to death.
The above all sentences of imprisonment are
directed to be run concurrently.
4. As all the matters are arising out of one
and the same Judgment, the arguments in all the
matters are simultaneously heard and we find it
expedient to decide all the three matters by
common reasoning. However, since the very
conviction has been challenged by the convicts,
the only proper course would be to first decide
the Criminal Appeals so filed by Accused Nos.1
and 2, for the reason that, only if the order of
conviction is maintained by this Court, the
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further question will arise whether or not the
death sentence awarded by the trial Court is
sustainable and is to be confirmed or otherwise.
5. Heard the learned A.P.P. for the State
and the learned counsel appearing for both the
accused.
6. The factual matrix of the prosecution
case is as under:
A) The informant Gulab s/o Ismail Shaikh
aged about 65 years resides at village Choramba,
Tq-Dharur, Dist-Beed. He has two real brothers
namely Chand aged about 80 years and Hasan aged
about 50 years as well as he has three step
brothers namely Rasool aged about 45 years, Husain
aged about 41 years and Papa aged about 38 years.
Thus they are in all six brothers and they are
residing separately. His real brother Chand has in
all three wives. The name of first wife of his
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brother Chand is Ratanbai and said Ratanbai has
one son namely Bashir. The name of second wife of
Chand is Mansab and said Mansab has one son namely
Rashed and two daughters namely Vajira and
Shakira. The name of third wife of Chand is
Noorjaha and the said Noorjaha has one daughter
namely Parveen aged about 14 years. The third wife
of Chand, brother of informant, namely Noorjaha
was residing with her husband Chand and daughter
Parveen in the field adjacent Chardari road near
village Choramba and she was doing illegal
business of selling liquor. About seven days back
Chand had gone to his sister at village Koregaon
as his leg was fractured.
B) It is further the case of prosecution
that, on 28th May, 2015, at about 5.30 p.m. the
informant and one Gangabhishan Gade were taking
round in the field in which the house of his
brother Chand is situate. At that time they
noticed that the door of house of Chand was closed
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from outside latches. At that time Gangabhishan
said the informant that he is thirsty. Then
informant Gulab told Gangabhishan that, as the
house of Chand is closed by outside latches, he
can open the door of the house and drink the
water. Then Gangabhishan opened the door of the
house of Chand and noticed that the wife of Chand
namely Noorjaha aged about 55 years and daughter
Parveen aged about 14 years were lying in dead
condition. Then said Gangabhishan closed the door
by outside latches and he told the informant in
that regard. Thereafter the informant and
Gangabhishan again opened the door and entered in
the house and they inspected the house. At that
time the informant also noticed that the wife of
Chand namely Noorjaha and daughter Parveen lying
in dead condition and the clothes on their person
were torn. After minute inspection, they noticed
that the blood was coming out from the nose of
Parveen, and her mouth was not in shape.
Thereafter they closed the door by outside
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latches, and they informed in that regard to other
persons in their village. Thereafter on next day
i.e. on 29th May, 2015, the informant had been to
police station Dharur, and lodged report to API
Shri R.S. Sanap. Accordingly, on the basis of his
report, API Sanap registered a Crime No.45 of 2015
under Section 302 of I.P. Code and investigation
of said crime was handed over to P.I. Panpatte.
C) It is further the case of the prosecution
that before filing the complaint by informant
Gulab Ismail Shaikh on 28th May, 2015, A.D. No.16
of 2015 under Section 174 of the Code of Criminal
Procedure was registered by P.S.O. PHC B. No.398
of police station Dharur on the basis of report
lodged by one Shaikh Amin s/o Shaikh Rasool, the
nephew of deceased Noorjaha and cousin of deceased
Parveen, and inquiry of said A.D. was handed over
to P.I. Panpatte. In his inquiry on the same day,
P.I. Panpatte send the corpse of Noorjaha and
Parveen along with letter to the Head of the
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Department of Forensic Science of SRTR Hospital at
Ambajogai through PHC B.No.79 namely Rathod for
keeping it in corpse room. After registering the
Crime No.45 of 2015 on 29th May, 2015, the
Investigating Officer P.I. Panpatte went to
postmortem room of SRTR Hospital and prepared
inquest panchnamas of Noorjaha and Parveen, in
presence of panchas in the said room.
D) After preparing inquest panchnamas of
Noorjaha and Parveen on the same day, P.I.
Panpatte referred the dead bodies of Noorjaha and
Parveen along with letter and inquest papers to
Head of Department of Forensic Science of Swami
Ramanand Teerth Rural (SRTR) Hospital, Ambajogai
for postmortem examination. Accordingly, on the
same day Dr. V.G. Pawar and Dr. V.B. Gholve of the
Department of Forensics Science of SRTR Hospital,
Ambajogai conducted postmortem examination of the
corpse of Noorjaha and Parveen and issued their
provisional postmortem reports - cum- death
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certificates with provisional opinion as to cause
of death. At the time of postmortem examination of
Noorjaha, they preserved viscera and blood sample
for sending it to chemical analysis, as well as at
the time of postmortem examination of Parveen they
preserved her viscera with blood, blood for
grouping, pubic hairs and vaginal swab for
chemical analysis. After completion of postmortem
examination, on the same day P.I. Panpatte handed
over the dead bodies of Noorjaha and Parveen to
Usman alias Papamiya Ismail Shaikh for burial and
obtained acknowledgement in that regard.
Thereafter on the same day P.I. Panpatte sent
special report to Sub-Divisional Police Officer,
Kaij.
E) On 29th May, 2015, Additional
Superintendent of Police, Beed issued one letter
regarding the investigation of crime No.45 of 2015
of police station, Dharur, be handed over to Shri
Ganesh Gawade, Sub Divisional Police Officer,
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Beed. Accordingly, on the same day Shri Gawade
took the investigation of crime No.45 of 2015. In
his investigation on the same day the
investigating officer Gawade issued one order to
P.I. of police station Dharur to hand over police
station office seal to him for sealing the
muddemal on the place of occurrence. On the same
day, he visited the spot and prepared spot
panchnama in presence of panchas on the spot. At
the time of preparing spot panchnama, he had taken
in all twelve photos of the place of occurrence
through photographer Amol Chavan Chorambekar. At
the time of preparing spot panchnama, he seized
blood mixed soil on the place of occurrence and
sealed the same in bottle. He also seized the
simple soil on the place of occurrence and sealed
the same in one plastic bottle, he seized one
ladies nicker having red colour as well as having
number of stains of semen and hairs on the place
of occurrence. On the place of occurrence, the
investigating officer Mr. Gawade also seized the
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hairs on nicker, he seized black hairs, one small
tiny box of lime of Rajesh company having parrot-
green colour, one intact button of Fashion company
having white colour and one half button, he also
seized in all small and big pieces of bangles
having faint brown colour on the place of
occurrence, in presence of panchas.
F) On the same day the investigating officer
Mr. Gawade seized the clothes on the person of
deceased Noorjaha at the time of postmortem
examination i.e. one Saree, one Petticoat and
blouse which were produced by PHC B.No.859 namely
Jadhavar under seizure panchnama in presence of
panchas. On the same day he seized the clothes on
the person of deceased Parveen at the time of
postmortem examination i.e. one punjabi top and
one punjabi pant which were produced by PHC B.
No.859 Jadhavar under seizure panchnama in
presence of panchas. On the same day, he issued
one letter to the Court of Special Judge,
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Majalgaon informing that Section 376(2)(1)(M),
354, 354(B) of I.P. Code, and Sections 3, 4, 5(i)
and 6 of POCSO Act are added in Crime No.45 of
2015, initially registered under Section 302 of
I.P. Code, at police station, Dharur. On the same
day, he recorded the statement of witnesses namely
Mehrun Usman alias Papa Shaikh, Jaitulbi Husain
Shaikh, Anis Husain Shaikh, Gangabhishan Dagduba
Gadekar, Dharma Bapurao Gandhle and Kunjan Ashruba
Giri.
G) On 1st June, 2015, the investigating
officer Gawade recorded statement of witness
namely Haribhau Shrirang Sakhrudkar. On the same
day, he directed to PHC B.No.859 Jadhavar to carry
seized Articles in Crime to Chemical Analyzer,
Aurangabad. On 2nd June, 2015, he issued letter to
Gramsevak of Grampanchayat Office, Choramba,
Tq. Dharur for obtaining birth certificate of
deceased minor girl Parveen. On the same day, he
recorded statement of witness namely Baliram
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Mahadeo Irmale. On the same day, he recorded the
supplementary statement of witnesses namely Mehrun
Usman alias Papa Shaikh, Jaitulbee Husain Shaikh,
Anis Husain Shaikh, Gangabhishan Dagduba Gadekar,
Dharma Bapurao Gandhle and Kunjan Asruba Giri. On
the same day, he recorded statement of witnesses
namely Gulab Ismail Shaikh, Ramchandra Pandurang
Sakhrudkar and Vachisht Bhanudas Mule.
H) On 2nd June, 2015, the investigating
officer Mr. Gawade arrested both the accused. On
the same day, he sent seized Articles i.e. the
clothes on the person of both the deceased and
seized Articles on the place of occurrence to
C.A., Aurangabad through PHC B.No.859 Ganpat
Jadhavar along with his two letters dated 1st
June, 2015. Accordingly, on the same day PHC
Jadhavar carried the said Articles to C.A.,
Aurangabad and submitted it in the said office and
obtained acknowledgement in that regard on the
copies of letters issued by the investigating
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officer Mr. Gawade. On the same day, the
investigating officer Mr. Gawade referred accused
No.1 along with requisition letter for medical
examination to medical officer of Government
Hospital at Dharur. Accordingly, on the same day,
medical officer Dr. Balasaheb Solanke examined
Accused No.1 as per requisition letter. At the
time of medical examination of Accused No.1, he
had taken the sample of pubic hairs, sample of
scalp hairs, nail cutting and sample of blood of
Accused No.1 and the same were sealed and handed
over to police for sending to chemical analysis.
Accordingly, he issued medical examination report
of Accused No.1.
I) On 2nd June, 2015, the investigating
officer Mr. Gawade referred Accused No.2 along
with requisition letter for medical examination to
medical officer of Government Hospital at Dharur.
Accordingly, on the same day medical officer Dr.
Balasaheb Solanke examined Accused No.2. At the
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time of medical examination of Accused No.2, he
has taken the sample of pubic hairs, sample of
scalp hairs, nail cutting and blood sample of
Accused No.2 and same were sealed and handed over
to police for sending to chemical analysis.
Accordingly, he issued medical examination report
of Accused No.2.
J) On 3rd June, 2015, Investigating Officer
issued letter to the Court of Special Judge,
Majalgaon regarding insertion of Section 376(D),
452 of I.P. Code in Crime No.45 of 2015 under
Section 302, 376(2)(1)(M), 354, 354(B) of the I.P.
Code and Sections 3, 4, 5(i), 6 of POCSO Act of
police station, Dharur. On the same day, he
obtained birth certificate of deceased minor girl
Parveen from the Anganwadi Sevika, Choramba. On
4th June, 2015, he issued letter to Tahsildar,
Dharur for preparing the map of the place of
occurrence through Revenue Circle Inspector, and
to submit the same before him. On 5th June, 2015,
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he issued one letter to Tahsildar Dharur for
obtaining two Government panch witnesses for
conducting panchnama. On the same day, he issued
one order to P.I. of police station, Dharur for
providing police station office seal for sealing
at the time of incident.
K) On 5th June, 2015, the investigating
officer Mr. Gawade recorded memorandum statement
of Accused No.1 Krishna in presence of two
Government panch witnesses regarding his readiness
to produce the clothes i.e. shirt and pant, on his
person allegedly wore at the time of incident, and
thereafter the same have been concealed by him in
his house. After recording memorandum statement of
Accused No.1, on the same day the investigating
officer Mr. Gawade recorded the memorandum
statement of Accused No.2 Achyut in presence of
two Government panch witnesses, regarding his
readiness to produce the clothes i.e. shirt and
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pant, on his person allegedly wore at the time of
incident, and thereafter the same have been
concealed by him in his house.
L) After recording the memorandum statements
of both the Accused on the same day, as per the
say of both the Accused, Police staff and two
panchas along with both the Accused, the
investigating officer Mr. Gawade went to village
Choramba by Government Jeep No.MH-23/AF-0094 and
Government Jeep No.MH-23/AF-0085. After they
reached at village Choramba, firstly they went to
the house of Accused No.1. Then they entered in
the house of Accused No.1 along with him and then
Accused No.1 produced the clothes which were on
his person at the time of incident i.e. pant and
shirt, and the same were seized by the
investigating officer Mr. Gawade under seizure
panchnama in presence of panchas and same were
also sealed in presence of panchas. Thereafter as
per the directions of Accused No.2, along with
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him, they entered in the house of Accused No.2,
and then he produced one pant and shirt which were
on his person at the time of incident, and the
same were seized by the investigating officer Mr.
Gawade under the seizure panchnama, in presence of
panchas.
M) On 6th June, 2015, the investigating officer
Mr. Gawade, directed to witness namely Baliram
Mahadeo Irmale to remain present before Judicial
Magistrate First Class Court at Dharur, for
recording his statement under Section 164 of the
Code of Criminal Procedure. On the same day he has
also issued request letter to J.M.F.C. Dharur for
recording statement of witness Baliram Irmale
under Section 164 of the Code of Criminal
Procedure. Accordingly, on the same day J.M.F.C.
Dharur recorded statement of witness Baliram
Mahadeo Irmale, and same was sealed and handed
over to police. On the same day the investigating
officer Mr. Gawade directed to Ganpat Jadhavar
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(PHC B.No.859), to carry the seized Articles to
C.A., Aurangabad and accordingly, he carried
seized Articles on 8th June, 2015, and submitted
the same in the office of C.A., Aurangabad. On the
same day investigating officer Mr. Gawade recorded
the statement of carrier of seized Articles to
C.A. namely PHC Ganpat Jadhavar.
N) On 16th June, 2015, the investigating
officer Mr. Gawade collected the map of the place
of occurrence from the Revenue Circle Inspector,
Dharur. On 19th June, 2015 he collected the copy
of P.T.R. extract of the G.P. House No.438 of
village Choramba. On 30th June, 2015, he issued
one request letter to the Court of Special Judge,
Dharur to hand over both the Accused to
Probationary PSI, R.S. Gadve for taking their
blood sample for DNA Test. The said application
was allowed and accordingly on 1st July, 2015, the
Probationary P.S.I. Shri Gadve obtained the
custody of both the Accused from the District
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Prison Officer, Beed. Then on the same day, the
investigating officer Mr. Gawade referred both the
Accused to medical officer of Government Hospital,
Beed, for taking blood samples for DNA Test along
with letter. Accordingly, on the same day medical
officer had taken blood samples of both the
Accused for DNA Test and same were sealed and
handed over to police. On 2nd July, 2015 the
investigating officer sent the sealed blood
samples of both the Accused to Director, Forensic
Science Laboratory, Kalina, Santacruz, Mumbai.
O) After collecting postmortem notes of both
the deceased, medical examination reports of both
the Accused, C.A. Reports and after completion of
investigation, the investigating officer Mr.
Gawade found sufficient incriminating evidence
against both the Accused and therefore he
submitted charge-sheet in the Court of Special
Judge, Majalgaon alleging that both the Accused
have committed an offences punishable under
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Sections 302, 376(d), 376(2)(1)(M), 354, 354-B,
449, 34 of the I.P. Code and under Section 3, 4,
5(i) of POCSO Act.
P) The learned Judge framed the charge. The
contents of the charge were read over and
explained to the Accused. They denied the charge
and claimed to be tried. The defence of the
Accused as disclosed from the cross-examination of
the witnesses and, from their own statements under
Section 313 of the Code of Criminal Procedure is
that of total denial and false implication.
7. After recording the evidence and
conducting full fledged Trial, the Special Court,
Majalgaon convicted and sentenced both the Accused
in a manner stated in Para 3 herein above.
8. Learned Additional Public Prosecutor
appearing for the State invites our attention to
the evidence of the prosecution witnesses and
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submits that the findings recorded by the trial
Court are in consonance with the evidence brought
on record by the prosecution. Learned Additional
Public Prosecutor urged that, the prosecution has
established beyond reasonable doubt that the
Accused No.1 - Krushna s/o Ramrao Ridde, and
Accused No.2 - Achyut @ Bappa @ Babu s/o Kachru
Chunche, have committed serious offences
punishable under Sections 376 and 302 of the I.P.
Code, along with other offences. It is submitted
that prosecution case is entirely based on
circumstantial evidence. The prosecution has
brought on record all relevant and incriminating
circumstances which conclusively prove that all
links in the chain are so complete and
conclusively lead to the conclusion that, Accused
Nos.1 and 2 committed house trespass by entering
in the house of deceased Noorjaha, used criminal
force with intent to disrobing her, sexually
assaulted on deceased Parveen, forcibly committed
sexual intercourse on deceased Parveen and caused
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death of minor girl Parveen and her mother
Noorjaha. It is submitted that PW-7 Ramchandra
deposed in his evidence that on the day of
incident at about mid-night when he woke up for
answering nature's call and came out from his
house, at that time he noticed that Accused No.1
was hurriedly going towards his field. It is
submitted that the prosecution has proved chain of
evidence so complete and not left any reasonable
ground for the conclusion with the innocence of
Accused Nos.1 and 2, and accordingly prosecution
has proved that in all human probability the act
must have been done by Accused Nos.1 and 2. He
invites our attention to the medical evidence and
submits that prosecution has convincingly proved
that death of Noorjaha and Parveen was homicidal.
He invites our attention to Para 193 of the
Judgment of the trial Court and submits that the
trial Court upon appreciation of the entire
evidence on record found that Accused Nos.1 and 2
committed heinous crime of rape and murder in a
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brutal and barbaric manner. They committed the
offence in order to satisfy their lust and
forcibly raped 14 years old defence-less girl. He
submits that the modus operandi to commit the
crime by resorting to diabolical method exhibit
depravity, degradation and un-commonality of the
crime which had shocked the collective conscience
of the community. He further submits that,
considering the nature of offence, manner in which
it is committed and upon evaluating the
aggravating and mitigating circumstances, the
trial Court thought it fit to award death sentence
to Accused Nos.1 and 2. Therefore the learned
Additional Public Prosecutor submits that, the
reference deserves to be answered in the
affirmative and the Appeals filed by Accused Nos.1
and 2 deserve to be dismissed.
9. Learned A.P.P. appearing for the State
in support of his submissions made during the
course of hearing placed reliance on the following
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reported Judgments, in the cases of Dharam Deo
Yadav V. State of U.P.1, Anil alias Anthony
Arikswamy Joseph V. State of Maharashtra2, Bhagwan
Das and another V. State of Rajasthan 3, State
[through C.B.I.] V. Santosh Kumar Singh4, Munna
Kumar Upadhyaya alias Munna Upadhyaya V. State of
A.P.5, Hanuman Govind, Nargundkar and another V.
State of M.P.6, Darga Ram alias Gunga V. State of
Rajasthan7, Narendra V. State of Karnataka8, Kanda
Padayachi V. State of T.N.9, Shivaji alias Dadya
Shankar Alhat V. State of Maharashtra 10, Dhananjoy
Chatterjee alias Dhana V. State of W.B. 11, Laxman
Naik V. State of Orissa12 and Dasu and others V.
State of Maharashtra13.
1 2014 Cri.L.J. 2371
2 AIR 2014 SC [Supp] 1160
3 AIR 1957 SC 589
4 2007 Cri.L.J. 964
5 AIR 2012 SC 2470
6 AIR 1952 SC 343
7 AIR 2015 SC 1016
8 2009 [6] SCC 61
9 AIR 1972 SC 66
10 [2008] 15 SCC 269
11 [1994] 2 SCC 220
12 [1994] 3 SCC 381
13 1985 Cri.L.J. 1933
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10. On the other hand, Mr. S.G. Ladda,
learned counsel appearing for Appellant in
Criminal Appeal No.527 of 2016 i.e. filed by
accused No.1 Krishna Ramrao Ridde, submitted that,
the entire prosecution case rests upon
circumstantial evidence and unless there is
complete chain of circumstances, which firmly
establishes each of the circumstance separately
and all collectively, no conviction can be
maintained. It is submitted that, the prosecution
is required to prove each circumstance in the
chain of the circumstances firmly and there should
not be any room for suspicion or doubt. It is
submitted that, the evidence of last seen together
in the present case is lacking. It is submitted
that, even if the evidence of PW-7 Ramchandra is
taken as it is, at the most, it can be said that,
he noticed that Accused No.1, on the day of
incident at about mid-night, was hurriedly going
towards his field. However, the same is not
sufficient evidence to connect Accused No.1 or to
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blame him and hold responsible for death of
deceased persons. He submits that after carefully
perusing postmortem reports of both the deceased,
it is clear that there was no evidence to suggest
that the deaths occurred due to strangulation and
therefore it was wrong on the part of the learned
trial Court to hold that deaths were homicidal. He
submits that there were no marks or injury which
could suggest conclusive aspect of any violence on
the dead bodies. Admittedly, no rope or any other
string or cloth was found either at the spot or
otherwise collected during investigation. The
deaths did not occur due to throttling or
smothering or due to impact, injuring vital organs
of any of the deceased.
11. It is further submitted that the deceased
Noorjaha and her daughter Parveen were residing in
a tenement in agricultural land alongwith one
Shaikh Chand who is the husband of deceased
Noorjaha and father of deceased Parveen. There
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was none except their family resided adjacent or
nearby to the said tenement. Even according to
prosecution, Noorjaha was indulged in illegal
activities. She was selling spurious liquor
illegally. As such, it is clear that except both
the deceased and Shaikh Chand no other persons
were residing in the said tenement. It is
submitted that there is absolutely no evidence to
connect accused No.1 or to blame him to be
responsible for the death of the deceased persons.
12. It is submitted that according to the
prosecution the bodies in question had undergone a
long process of decomposition. The postmortem
report Exhibit-63 of deceased Noorjaha as well as
that of Parveen Exhibit-64, both would show that
their bodies had greenish, discoloration all over
the body with marbling of skin. In both the bodies
PM lividity were absent. The eyes thereof were
closed. There was no biting of the tongue. There
were no marks of strangulation. There was no
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fracture to the thyroid cartilages. There were no
marks of any ligature. Their bodies were black.
There was no mark of any contusion resembling to
have covered the circumference of their necks. No
marks of any knots were found either on the nape
or at any part of the neck. As such there was no
evidence to suggest that the deaths occurred due
to strangulation. The testimony of the autopsy
surgeon PW-12 does not disclose any base on the
basis of which he formed opinion that both the
deceased died due to manual strangulation.
Therefore, it was wrong on the part of the Judge
of the trial Court to say that deaths were
homicidal. Since the dead body parts were swollen
therefore an endeavor was necessary to be made to
rule out possibility of bite by any reptile or
insect. Not only this but the samples of blood
from the bodies had to be specifically sent for
the purposes of ascertaining if it exhibits any
traces of reptile or insect poison. Because due
to swelling and petrification and decomposition
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the bite marks were possible to be missed.
Therefore, the Judge of the trial Court ought to
have been circumspective before accepting and
ultimately relying upon the opinion of the doctor
PW-12, as regards the manner of death. It is
submitted that there were no marks or injury which
could suggest conclusive aspect of any violence on
the dead bodies. Admittedly, no rope or any other
string or cloth was found either at the spot or
otherwise collected during the investigation. So
also, it should not have been forgotten that the
deaths did not occur due to throttling or
smothering or due to impact, injuring vital organs
of any of the deceased. Not only this but the
important aspect which is prominent in cases of
death occurring due to hanging or strangulation,
there is compression of wind pipe, injury to
epiglottis always occurs. In the present case,
there was no such evidence. The Doctor did not
whisper in any manner that he found injuries to
the internal parts of neck. There was no injury
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to hyoid bone. The trial Court therefore ought not
to have forgotten that in all cases medical
opinion has to be tested on the basis of the other
evidence. That is the reason as to why various
High Courts and the Supreme Court time and again
reminded that the medical opinion should not be
accepted as a gospel truth and further that the
medical evidence shall not be taken to be
prevailing if the other evidence tendered in a
given case does not corroborate the medical
evidence. Therefore, in a trial the Judge has to
form his independent finding on the basis of the
entire evidence. Barring the so called autopsy
reports, there is no other material to term the
deaths to be homicidal.
13. It is further submitted that a bare
glance at both the postmortem reports would show
that most of the contents of both these reports
are verbatim as regards maximum aspects except
injury Nos.7 and 8 in Exhibit-64 the PM reports
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concerning deceased Parveen. The opinion as
regards the deceased Parveen as spelt in
Exhibit-64, about the sexual intercourse was not
to be accepted at all for variety of reasons.
There was no semen or smegma traces or blood found
in the vaginal cavity / canal of deceased Parveen.
There is no finding that rupture to the hymen was
fresh or that on touch the ruptured edges of such
torn hymen shown any active bleeding or the edges
were seen to be showing infiltration staining of
blood. Admittedly, the Doctor did not spell or say
that the edges were inverted. There was no
dissection carried to the labial folds. Swelling
over labial folds always occurs essentially in
each case of petrification. Therefore, the Doctor
must dissect such parts to find traces of any
injury to the underneath tissues. There is no
evidence to such an effect in the present case. It
is submitted that since the body shown marbling
appearance and it was swollen due to decomposition
and had become blackish all over, it was unsafe to
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accept the contention of the Doctor that there
were contusions over the thighs and more
particularly in absence of examining underneath
tissue of such parts. The C.A. reports concerning
the pubic hairs, vaginal swabs would show that no
semen was detected. Even no blood is detected.
None of the clothes which were found on the person
of Parveen had any semen. No blood was found on
any of the clothes of the accused No.1 matching to
be that of with of blood Group-B. There was no
injury to the labia minora or clitoris or fourchet
or the junction abridging the labial part and the
anal part. In view of this, and all above said
the opinion expressed by the autopsy surgeon that
there was forceful intercourse with Parveen had no
base at all. Thus the Judge of the trial Court
fallen in error.
14. It is further submitted that the spot
panchnama Exhibit-38 would falsify and contradict
the column No.7 of P.M. reports Exhibit-63 and 64.
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If these documents are minutely examined,
remembering the text of spot panchnama Exhibit-38,
it would appear that there was no pant / Salwar on
the body of said Parveen. There is no evidence
that police or anyone put the said pant and tied
its string any time after the spot panchnama.
Neither any panch nor the Investigation Officer
PW-13 speaks to this effect. In the spot panchnama
the Salwar is found lying at some distance from
door however it is not that it was found to be
torn at the genital region. The question therefore
is whether any answer is given about this mystery
by the prosecution through evidence. The answer is
in negative. Yet the Doctor finds a Salwar on the
dead body and spells its condition that it was
torn at the genital region. Thus a serious doubt
arises not only about the conduct of investigation
Officer and also about the autopsy surgeon. Yet
another mystery is there. In the spot panchnama
Exhibit-38 a nicker was found lying in the room of
the spot. Initially, when this nicker was sent to
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C.A., the prosecution claimed the same to be of
the deceased Noorjaha. Admittedly, the prosecution
does not say that Noorjaha was subjected to sexual
intercourse. However, without there being any
other contrary evidence, the Judge of the trial
Court took it to be that of Parveen. In the spot
panchnama Exhibit-38, at the place of occurrence
which is only of one room no any other nicker was
found. The real question in view of all above
said, would be that if according to the Doctor the
deceased Parveen wore a Salwar and it was on her
person then how unless the Salwar is removed the
nicker could be taken away from the body. The
another compartment of the mystery and it is if
the nicker and the Salwar were removed and thrown
away in the room, in that eventuality there could
be no traces of semen on the nicker. This nicker
as per C.A. report had stain of semen. The fourth
compartment of mystery is still there. If the
Salwar was made to tear and through that torn part
rape is committed, then there must be stain of
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semen on such Salwar. However, no semen is
detected.
15. It is further submitted that no injuries
were found on the person of the accused or their
genital parts. No injury to their foreskin or
glance penis was found. In view of all above, it
was clear that there was no satisfactory evidence
to establish rape. No articles in the room were
found to have been scattered suggesting that any
altercation or defensive / forcible act committed
there. There is no evidence of acceptable quality
as regards to collection of blood or semen samples
of the accused. There is no evidence of drawing
or sealing the samples. The prosecution had not
led any evidence to assure that the articles were
sealed at the spot or that those were given and
preserved in the custody of Muddemal Mohrir /
clerk of the police station. There is no paper on
the entire file of the record showing any seal or
stamp of such Muddemal clerk. Exhibit-38 does not
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disclose the manner and mode of the alleged
seizure and sealing. It does not bear any seals
specimen. If as per Exhibit-38 the yellow Salwar
was seized and sealed at the spot and taken in
custody by the police and if ultimately given to
the custody of Muddemal Mohrir / clerk, in that
event the Doctor could not find Salwar on the
person. Admittedly, there is no any second Salwar
in this case. Considering this, it should have
been held that the prosecution was absolutely
unfair and rather played game of hide and seek.
16. It is further submitted that the
prosecution deliberately omitted to examine the
initial Investigation Officer PSI Panpatte who
visited the spot first from the police department.
PW-1 is a panch of inquest panchnama Exhibit-25 of
deceased Noorjaha the claim of this witness is
absolutely false and is controverted inter-se by
the PM report. Similar is the case as regards
PW-2 Vitthal, who is panch of inquest of deceased
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Parveen Exhibit-27. PW-3 is a panch to the memo
Exhibit-30 of the appellant/ accused No.1 and
alleged another memo of Article-2 at Exhibit-31.
The same panchas were of recovery panchnamas
Exhibit-32 and 33 regarding seizure of clothes.
The alleged memorandums under Section 27 of the
Evidence Act are unbelievable for variety of
reasons. That apart there are no traces of blood
on the clothes of the appellant/ accused No.1.
Except only one semen stain of 0.5 c.m. in
diameter on his full pant near the zip. It would
be interesting to see that no blood on his pant is
found, no other clothes viz. under-pant of an
accused was collected and / or sent for C.A.
examination. Therefore it is submitted that
unless the underwear is removed no intercourse
would be possible. Even if it is presumed that it
was committed after unzipping the pant in that
event there must be blood stains, in case the
victim Parveen sustained genital injuries due to
the alleged act. Admittedly, no semen samples of
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any of the accused is collected. There is no
evidence of this either tendered by PW-3 or even
on Exhibit-32 and 33 about sealing of the articles
clothes. There is no seal specimen on the said
Exhibits. A careful perusal of Exhibit-32 and 33
would show that writing about sealing is
subsequently inserted in the document and the same
is in different hand-writing. Thus there is no
reliable evidence about sealing.
17. It is further submitted that the copies
of muddemal registers show that none of the
alleged seized articles were deposited with the
Muddemal clerk. The said copies do not bear
signature of Muddemal clerk of the Police Station.
Therefore, where the articles were lying till the
same were sent, remained in mystery. It is
unconceivable that the accused would make the
alleged disclosures to the persons who were not
known to them or were not of acquaintance. The
clothes allegedly seized from the house as claimed
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by the prosecution, the said houses were open when
police reached. It means that there were other
persons residing in the said houses. No inquiry
during investigation was made with any of the
inmates of the said houses as to exactly whom the
clothes belonged. Therefore, there is no link
between the seized clothes and the accused. Not
only this, but whether the clothes comfortably fit
on the text of the body of any of the accused is
not ascertained either by the Investigation
Officer or even by the trial Court before relying
on the evidence. The accused have stated that the
clothes do not belong to any of them. PW-4 is
seizure panch to the panchnamas Exhibit-35 and 36,
the panchnamas of seizure of clothes of deceased
Noorjaha and Parveen. Again there is no evidence
of seizure and / or sealing of any of these
clothse. Both panchnamas even according to
prosecution were prepared in Police Station. The
panch PW-4 is a puppet and habitual panch. There
is no evidence as to whom which cloth belongs.
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There is no evidence as to who, how, when, and in
what manner and why for produced said clothes
before Police. Again there is no evidence that
any of the clothes belonged to the deceased. The
person from whom the clothes are either received
or produced to the police is not examined. Thus
vital link is missing. As such, no reliance ought
to have been placed by the trial Court over the
seizure.
18. It is further submitted that PW-5 Shaikh
Amin is close relative of husband of deceased
Noorjaha. He is a panch to spot panchnama. His
evidence would show that the police were
politically influenced. This panch has resorted
to several contradictory versions. The nicker
before the Court is of red colour. It is at
Article-3. The spot panchnama Exhibit-38 does not
show that any of the seized articles were sealed.
The other clothes also did not bear any chit
bearing signature of the witness or any other one.
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No evidence of sealing is also adduced. None of
these seized articles were delivered to the
custody of Muddemal clerk of Police Station. No
evidence where these articles were lying till they
were dispatched for C.A. Reports. There is no
blood found on Exhibit-6. Again having regard to
the fact that if really the nicker belonged to
deceased Parveen, in that eventuality there ought
to have been blood thereon. Rest of the other
articles and particularly clothes of bodies did
not bear any semen. As such there is no evidence
to accept that nicker belonged to deceased Parveen
is there. As per the spot panchnama Exhibit-38, a
red colour nicker is seized and since then it was
in custody of police. The prosecution claimed
this nicker to be that of Parveen as is appearing
from Exhibit-49. The PM report Exhibit-64 would
show that there were clothes on the dead body of
deceased Parveen and there was yellow under-wear
on the person of deceased Parveen. Said clothes
are produced before the Court. PW-5 spot panch
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disclosed that he is totally unaware of such
clothes. If this is curiously looked further, it
would appear that the prosecution has painted
Article no.3 red nicker foisting it to be belonged
to deceased Parveen. This Article no.3 according
to prosecution was lying away from the dead body
and it has semen stains. This is the Article no.3
about which the DNA report is there. The
legitimate question therefore would arise if there
was nicker on the person of Parveen till she was
subjected to autopsy, then the Article no.3 cannot
be of her. According to prosecution, there were
no blood or semen stains on this yellow nicker
which was on the person of Parveen, where this
yellow nicker had gone is in mystery. Thus it is
clear that the trial Court did not consider this
valid submission of defence about vital aspect,
which goes to the root of the matter. Barring the
DNA report of nicker Article-3, there is no other
material of whatsoever nature. Thus the conviction
is absolutely illegal.
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19. It is further submitted that PW-6 Gulab
Shaikh is a real brother of Shaikh Chand, the
husband of deceased Noorjaha and father of
deceased Parveen. PW-6 claimed that he had
noticed the dead bodies on 28th May, 2015 at about
5.00 p.m. He did not lodge any report, nor
whisper about the same to anyone. He lodged the
FIR on the next day i.e. on 29th May, 2015. The
record would show that A.D. report Exhibit-39 was
lodged by PW-5 Shaikh Amin, who is a nephew. This
A.D. report bearing No.16/2015 was lodged at about
10.15 p.m. In the said report, there is no
allegation against anybody, although PW-5 had
visited the place of occurrence before lodging the
report. In the report, there is no mention about
any injuries or clothes, more particularly nicker
at the place of occurrence. After registration of
A.D., no inquest was conducted at the spot but
Exhibit-25 and 27 both were conducted at the
Government Hospital. Perusal of these inquest
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reports would show that those were conducted
during 6.30 a.m. upto 8.50 a.m. The spot
panchnama Exhibit-38 was conducted on 29th May,
2015 between 8.15 a.m. to 9.45 a.m. This shows
that when the spot panchnama was conducted no
dead bodies were lying there. Therefore, who, how
and when shifted the dead bodies, has remained in
dilemma and no evidence is adduced. The
Investigation Officer Mr.Panpatte who was
conducting inquiry in the A.D. is not at all
examined by the prosecution. It is submitted that
right from 5.00 p.m. of 28th May, 2015 till the
morning of 8.15 a.m. of 29th May, 2015 several
persons had access to the spot even before arrival
of police and also subsequent to it prior to
conducting spot panchnama. Admittedly, there is no
evidence of deputing any police guard. In view of
this and also the fact of belated FIR, it is clear
that a story was cooked up and plantation of the
things cannot be ruled out.
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20. It is further submitted that the
testimony of PW-6 Gulab Shaikh is not at all
helpful to the prosecution. The statement of
Shaikh Chand, the husband and father of deceased
persons, was not recorded. He was not interrogated
and examined. Even according to the prosecution,
he had decamped from the village close to the date
of incident. According to PW-6, Shaikh Chand had
gone to Koregaon at the house of his sister. No
investigation in that direction was made to
ascertain the correctness or otherwise of this
aspect. There is also no record on the file of
Court that the said Shaikh Chand had suffered or
not any injury or ailment. The answer to the
query given by PW-13 on this issue is totally non
satisfactory, rather flirting. This has all been
resorted to malignantly prosecuting the accused.
The testimony of PW-6 would show that on 28th May,
2015 Shaikh Chand had come to village Choramba in
the afternoon. The legitimate question arises as
to what was the conduct of this Shaikh Chand?
cnfcase3.16
What was his reaction? Why he did not visit the
place of occurrence? Why he did not go to the
place? All these questions remained unanswered.
According to PW-6, Shaikh Chand and deceased women
were residing together in the field i.e. the place
of occurrence. The testimony of PW-6 thus carries
the case of prosecution beneath dark clouds of
suspicion. Therefore, the present case being based
on circumstantial material, the prosecution has to
rule out all other hypothesis and possibilities.
Unfortunately, the trial Court did not look for
the same and proceeded to pass the impugned
Judgment of conviction. No blood or semen samples
of Shaikh Chand were obtained. His clothes were
not seized. He was never referred to medical
examination. Therefore, possibility of his semen
on the alleged nicker also cannot be ruled out.
Had this all been done probably the result would
have been different. No investigation was ever
directed to ascertain about the nature of
relations and the passion between said Shaikh
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Chand with the deceased women. Admittedly, there
were no neighbors surrounding the place of
occurrence and that apart Noorjaha, even according
to prosecution itself indulged in illegal
activities.
21. It is further submitted that the evidence
of PW-7 Ramchandra is useless for variety of
reasons. It is in respect of his noticing the
appellant/ accused No.1 going towards field. The
distance between house of the witness and of the
appellant/ accused No.1 is 300/400 meters. Except
this there is nothing. Thus witness PW-7 is
friend of Papa Shaikh, the brother of Shaikh Chand
and resided opposite to his house. Except
allegedly seeing the appellant/ accused No.1 there
is no other incriminating material. His statement
was recorded after 6 days of the incident. His
evidence does not show that there was either
street light or moonlight. He does not give any
timing. There is no data as to whether the
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appellant/ accused No.1 proceeded to his field or
otherwise. As such, his testimony does not take
the case at any point. He does not describe
clothes on the alleged person of appellant/
accused No.1. The evidence of PW-8 Ganpat Jadhwar
is regarding carrying articles to C.A. PW-9
Baliram and PW-10 Vachisht, both were declared
hostile by the prosecution. As such, it does not
take the case at any point at least against the
accused. PW-11 Dr.Balasaheb examined the accused.
His evidence about the alleged history is
inadmissible because it was made while the
appellant/accused No.1 was in the custody of
police. He does not say that he collected semen
sample. He did not find any nail scratch marks.
The abrasions were old and healed abrasions. The
appellant/ accused No.1 being an agriculturist,
the tiny abrasions as were found over his back,
right arm and right forearm were bound to occur in
routine course. The age of those abrasions
according to Doctor were 6 to 8 days old. The
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Doctor did not say that the said abrasions had any
cricentic shape. Perusal of the alleged history
would show that even according to prosecution the
alleged intercourse was 10 days prior to the
incident. Therefore, the semen found to be on the
nicker loses the significance. Admittedly, age of
semen is not ascertained. Thus the testimony of
the Doctor does not, in any way help the
prosecution. During cross-examination, the Doctor
admitted that his opinion about the injuries has
no base.
22. It is further submitted that the
testimony of Investigation Officer is fit to be
rejected for variety of reasons. Rather it would
show his biased attitude and unfairness apart from
unfruitful investigation. His evidence is contrary
to evidence of PW-5 Gulab. He gave lame excuses
when pointed questions were put to him. He has
suppressed vital documents and statements from the
Court. He withheld statements of various persons
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namely Dhanraj Mundhe, Lakhan Bhalerao, Balu
Ghadge, etc. He has chosen selected panchas, who
happened to be relatives of deceased, although the
village has dense population. There was no
evidence to show that deceased Parveen was not
major, but was either a minor or child. The age
was not determined by conducting an inquiry. No
compliance with Section 34[2] of the POSCO Act was
done. There was even otherwise no proof laid by
the prosecution to establish that Parveen was a
minor. No ossification test was done and / or
proved. No document or evidence concerning her
date of birth was produced. The entire evidence
whatsoever on record adduced by the prosecution
was hopelessly insufficient to hold that Parveen
was a minor. In view of this convicting the
appellant/ accused No.1 under POSCO Act is
absolutely illegal. The presumption under the
POSCO Act in the circumstances of the case is
unavailable for the prosecution. The A.P.P. who
conducted the prosecution before the trial Court,
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was not appointed under the POSCO Act to conduct
the trial. There is no gazette notification
approving his appointment. Thus the entire trial
vitiates. The case laws cited by the defence have
not at all been considered in proper perspectives.
The trial Judge allowed the passion to creep in
and the same has resulted in serious miscarriage
of justice.
23. It is further submitted that the entire
Judgment and sentence is not merely harsh but is
unsustainable. The case is not rare of the rarest
one to impose capital punishment. The observations
and findings on the issue recorded by Judge of the
Court below are incorrect, injudicious and
therefore fit to be disturbed and set aside.
There were several other possibilities which all
have not been ruled out and as such there being no
evidence to show that the accused were the only
perpetrator of the crime has not been established.
In view of this, they both ought to have been
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acquitted. It was clear on the face of record
that the prosecution case suffered with plenty of
laches and has failed to adduce clinching and
satisfactory evidence. The Court below apparently
forgotten the basic rule envisaged by the criminal
jurisprudence that graver the charge stricter
should be the degree of proof. Thus the questioned
Judgment of conviction being perverse is fit to be
quashed and set aside by acquitting the appellant/
accused No.1 and the confirmation case deserves to
be rejected. There is no admissible evidence as
regards alleged rape and alleged murders.
24. In support of his submissions, Mr. S.G.
Ladda, learned counsel appearing for the accused
No.1 placed reliance on the reported Judgments in
the cases of Goutam Kundu V. State of W.B. and
another14, The State V. Motia and other15, Jarnail
Singh V. State of Haryana16, Sharad Biridhichand
14 AIR 1993 SC 2295
15 AIR 1955 Raj.82
16 2013 Cri.L.J. 3976
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Sarda V. State of Maharashtra17, Shankarlal
Gyarasilal Dixit V. State of Maharashtra 18, Behram
Sheriar Irani V. Emperor19, Satbir Singh V. State
of Haryana20, Kishore Chand V. State of H.P. 21,
Paramhansa Jadab and another V. The State 22, Mohan
V. The State of Rajasthan23, Hanuman Govind,
Nargundkar [supra], Pratap Misra and others V.
State of Orissa24, Shaikh Farid Hussinsab V. State
of Maharashtra25 and Premjibhai Bachubai Khasiya V.
State of Gujarat & another26.
25. Mr. Hange, learned counsel appearing for
accused No.2 Achyut @ Bappa @ Babu s/o Kachru
Chunche adopted the arguments advanced by learned
counsel Mr. Ladda. In addition to that, it is
submitted that accused No.2 Achyut has been
falsely implicated in this case. There is no iota
17 AIR 1984 SC 1622
18 1981 Cri.L.J. 325
19 AIR 1944 Bom. 321
20 1995 Cri.L.J. 739
21 AIR 1990 SC 2140
22 AIR 1964 Orissa 144
23 1985 Cr.L.R. [Raj.] 657
24 AIR 1977 SC 1307
25 1981 Mh.L.J. 345
26 2009 Cri.L.J. 2888
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of evidence against accused No.2 Achyut. There is
no substantive evidence against accused No.2 and
alleged memorandum statement before the police and
pursuant to said memorandum and alleged
disclosure, no conviction can be based, since
statement given before the police is not
admissible.
26. We have heard the learned A.P.P.
appearing for the State, learned counsel appearing
for accused at greater length. Now we would like
to discuss the evidence of prosecution witnesses n
detail. Vishwajeet Govindrao Pawar ( PW-12), was
serving as Associate Professor of Forensic
Medicine in STRT Hospital and Medical College at
Ambajogai. During his evidence, he has stated that
on the same day i.e. on 29th May, 2015, along with
Dr.Vishal Gholve firstly he conducted the
postmortem examination of Shaikh Noorjaha and
found face cyanosed and swollen conjunctival
heamorrhage present. Tongue outside the mouth and
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tongue tie present. Mouth partially opened. No
salivary stains seen, reddish-blackish colored
blood like fluid oozing from mouth, nostrils,
ears. Nail beds and lips cyanosed. The above
external examination have been shown by them in
column Nos.13 and 14 in postmortem notes. At the
time of postmortem examination, they found no
evidence of any injury to the external genitals.
Evidence of purging of stool present and found
external injuries over the body. The above
external examination have shown by them in column
No.15 in postmortem notes. At the time of
postmortem examination of Shaikh Noorjaha, they
found following external injuries on her person:
"1] Contusion present over the right side
of the neck 3 x 2 cm in size, horizontal
in direction 3 cm above to Manubrium
sterni Brownish-black in colour.
2] Contusion present over the right side
of the neck 2 cm X 1 cm in size, vertical
in direction 4 cm above to Manubrium
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sterni brownish black in colour 1 cm above
to injury No.1.
3] Contusion present over the right side
of the neck 1 cm X 1 cm in size, vertical
in direction 5 cm above to the Manubrium
sterni brownish black in colour 1 cm above
to the injury No.2.
4] Contusion present over the right side
of the chin 1 X 1 cm in size, horizontal
in direction 3 cm above to Manubrium
sterni brownish black in colour parrel to
injury No.3.
5] Contusion present over left side of
the eye 2 X 1 cm in size, horizontal in
direction 3 cm parrel to right mastoid
process brownish black in colour.
6] Contusion present over the left side
of the neck laterally 2 X 1 cm in size,
horizontal in direction 4 cm above to
midpoint of clavicle brownish black in
colour.
7] Multiple contusions present over the
left arm medially varying in direction and
size, Brownish black in colour.
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8] Multiple contusions present over the
right arm varying in direction and size,
brownish black in colour.
9] Multiple contusions present over the
right and left knee joint varying in
direction and size, brownish black in
colour.
10] Contusion present over the left
buttock 5 X 3 cm in size, horizontal in
direction 3 cm from pubic symphysis
brownish black in colour.
11] Contusion present over the right
buttock 4 X 2.5 cm in size, horizontal in
direction 3 cm from pubic symphysis
brownish black in colour."
. The above all injuries were ante-mortem
in nature and shown by them in column No.17 in
postmortem notes.
. On internal examination, they found
evidence of petechial hemorrhags seen in white
matter of brain and the above injury shown by them
in column No.19 (III) in postmortem notes. They
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also found in column No.20 D and E right and left
lung shows reddish frothy fluid oozes out on cut
section with evidence of petechial hemorrhages
seen over interlobar surface. The above all
injuries were shown by them in column No.20E and D
in postmortem notes.
. On external and internal examination, it
was opined that the probable cause of death of
deceased Noorjaha due to Asphyxia due to manual
strangulation. There is no evidence of forceful
sexual intercourse however viscera and blood for
C.A. preserved.
. During his examination-in-chief, he
admitted that he along with Medical Officer
Dr.Vishal Gholve prepared postmortem notes.
27. PW-12 along with Dr. Vishal Gholve also
conducted postmortem examination of Parveen D/o.
Shaikh Chand. He stated that at the time of her
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postmortem examination, firstly on her external
examination, they found that face cyanosed and
swollen, tongue outside the mouth and tongue tie
present. Mouth partially opened. No salivary
stains seen. Reddish blackish coloured blood fluid
oozing from nose, mouth and ears. The above
external examination shown by them in column No.13
in postmortem notes. They also found on external
examination lips cyanosed. The above external
examination shown by them in column No.14 in
postmortem notes. At the time of her postmortem
examination, they found following external
injuries on the person of deceased Parveen:
"1] Contusion present over the Right side
of the neck 4 x 3 cm in size, vertical in
direction 4 cm above to Manubrium sterni
brownish black in colour.
2] Contusion present over the Right side
of the neck 4 X 2 cm in size, vertical in
direction 6 cm above to Manubrium sterni
brownish black in colour 1 cm above to
injury No.1.
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3] Contusion present over the Right side
of the chin 2 X 1.5 cm in size, vertical in
direction 4 cm above Manubrium sterni
brownish black in colour parrel to injury
No.3.
4] Contusion present over the right side
of the eye 1 X 1 cm in size, horizontal in
direction 3 cm parrel to right mastoid
process Brownish black in colour.
5] Contusion present over left side of
the neck laterally 2.5 x 2 cm in size,
horizontal in direction 4 cm above to
midpoint of clavicle brownish black in
colour.
6] Multiple contusions present over the
right and left knee joint varying in
direction and size, brownish black in
colour.
7] Contusion present over the left
buttock 4 x 3.5 cm in size, horizontal in
direction 3 cm from pubic symphysis
brownish black in colour.
8] Contusion present over the right
buttock 4.5 x 3 cm in size, horizontal in
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direction 3 cm from pubic symphysis
brownish black in colour. The above all
injuries were ante-mortem in nature and
shown by them in column No.17 in postmortem
notes."
28. On internal examination, they found
evidence of petechial hemorrhages seen in white
matter of brain, the above injuries are mentioned
by them in column No.19 (III). The right and left
lung shows reddish frothy fluid with evidence of
petechial hemmorrhages on interlobar surface. The
above injuries are mentioned in column no.20 D and
E. Then external examination of genitals, they
found following injuries:
"1] External injuries like contusion
present over right labial fold 2 x 1 cm in
size vertical in direction brownish black
in colour.
2] Contusion present over the left labial
fold 1.5 x 1.5 cm in size, oblique downward
in direction brownish black in colour.
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3] Multiple contusion present over the
right and left side of the thigh varying in
direction and size brownish black in
colour.
4] Swelling present over the right and
left labial fold.
5] Hymen rupture at 3 O'clock and 7
o'clock position.
6] Foul smelling discharge coming out
from the cervix.
7] Internally contusion present over the
cervix 1 x 0.5 cm in size on left of the
wall brownish in colour with bleeding
present black in colour. The above all
injuries were ante-mortem in nature and
shown by them in column No.21 of postmortem
notes."
29. They expressed opinion that the probable
cause of death of deceased Parveen is Asphyxia due
to Manual Strangulation. There is evidence of
forceful sexual intercourse however viscera with
blood, blood for grouping, pubic hairs and vaginal
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swabs preserved for C.A.
30. During his cross examination, he fairly
stated that the age of injuries are not mentioned
in column No.17. However, they mentioned
additional remarks in postmortem notes of Noorjaha
and Parveen that the death was occurred within 36
to 48 hours before doing the postmortem. It is
specifically denied by him that they have falsely
mentioned the nature of injuries as ante-mortem in
column No.17. He voluntarily stated that the
examination of stomach content is not relevant to
ascertain the time of death. He reiterated that
the death of both the deceased was occurred within
36 to 48 hours prior to their postmortem
examination and denied suggestion that due to the
bacterial infection the decomposition and
autolysis started in the body, they could not give
correct opinion. He specifically stated that it is
not necessary that hyoid bone should be fractured
in strangulation process. He further stated that
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the findings of strangulation and snake bite are
not identical.
. Upon careful perusal of his evidence, it
appears that PW-12 along with Dr.Vishal Gholve
conducted postmortem of Noorjaha and Parveen and
expressed their opinion that the death of both
deceased is homicidal in nature. It is
specifically stated by PW-12 that, when the dead
body of Parveen was brought for postmortem
examination at that time torn yellow colour
underwear, red colour payjama as well as yellow
colour Salwar were on her person. He specifically
stated that on the basis of pubic hairs, they have
mentioned the age of Parveen as 14 years in her
postmortem notes. However, he fairly stated that
it is not mentioned in the postmortem notes of
Parveen that on the basis of her pubic hairs, they
have ascertained her age as 14 years. He also
admitted that they did not follow the ossification
test. He specifically denied suggestion that the
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opinion given by them about the probable cause of
death of Noorjaha and Parveen as well as rape on
Parveen are not true and correct.
. In conclusion, the evidence of PW-12
makes it clear that the death of Noorjaha and
Parveen was homicidal and there are signs of
intercourse with Parveen, and further on the basis
of pubic hairs, the age of Parveen was 14 years at
the relevant time.
31. PW-11, Balasaheb Shahajirao Solanke, is
serving as a Medical Officer in Rural Hospital
Dharur. He stated in his evidence that he examined
accused no.2 Achyut @ Bapu Kachru Chunche. After
medical examination of accused no.2, as per his
opinion the accused no.2 is capable to perform
sexual act. At the time of his medical
examination, he had taken sample of pubic hair,
sample of scalp hair, nail cutting and sample of
blood. The said samples sealed by him and handed
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over to Police for sending to C.A. Accordingly, he
issued medical examination report of accused no.2.
He further stated that on the same day he examined
accused no.1 as per requisition letter of police.
At the time of medical examination of accused
no.1, he narrated the history about 'peno vaginal
intercourse with Parimala Chand Shaikh since 10
days before incident and performed peno vaginal
intercourse on same date of incident, but she was
not killed by him'. After medical examination of
accused no.1, as per his opinion accused no.1 is
capable to perform sexual act. At the time of
medical examination of accused no.1, he had taken
sample from pubic hair, sample of scalp hair, nail
cutting and blood sample. The said samples were
sealed by him and handed over to police for
sending it to C.A. At the time of medical
examination of accused no.1, PW-11 found in all
three injuries on his person. Injury no.1 abrasion
size 1/2 cm over back. 2] Abrasion size 2x2 cm
over right arm on middle 1/3rd. 3] Abrasion size
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1/2 cm over right forearm. The age of above three
injuries was within 6 to 8 days. Accordingly, he
prepared medical examination report of accused
no.1 in his own handwriting. He also identified
both the accused persons, who were present in the
Court.
32. So far as accused no.1 is concerned, he
narrated the history about 'peno vaginal
intercourse with Parimala Chand Shaikh since 10
days before incident and performed peno vaginal
intercourse on same date of incident, but she was
not killed by him'. Upon careful perusal of the
evidence of PW-11, he has clearly mentioned that
accused no.1 is capable to perform sexual act. At
the time of medical examination of accused no.1,
he had taken sample from pubic hair, sample of
scalp hair, nail cutting and blood sample. The
said samples sealed by him and handed over to
police for sending to C.A. He has also mentioned
three injuries noticed by him on the person of
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accused no.1. The age of injuries also stated in
between 6 to 8 days prior to his examination. He
also identified the accused persons who were
present before the Court.
. So far as accused no.2 is concerned,
PW-11 has stated that, during medical examination
of accused no.2, he took sample of pubic hair,
sample of scalp hair, nail cutting and sample of
blood of accused no.2. The said samples sealed by
him and handed over to Police for sending to C.A.
Accordingly, he issued medical examination report
of accused no.2. On the said medical report, there
is signature of PW-11 as well as signature and
thumb marks of accused no.1 and also signature of
one witness Angad Nakhate. Even on the medical
report of accused no.1, there is signature of
PW-11 as well as the signature and thumb mark of
accused no.1 and the signature of witness Angad
Nakhate. He denied suggestion that he did not
medically examine the accused on 2nd June, 2015.
cnfcase3.16
He has specifically stated even during his cross
examination that the requisite samples were taken
and same were sealed by him for sending to C.A.
Upon careful perusal of his cross examination,
nothing useful was elicited by the defence.
33. The prosecution examined in all 13
witnesses. PW-1 Samina Amin Shaikh and PW-2 Ramesh
Vitthal Chavan were examined to prove the inquest
panchnama. PW-1 Samina Shaikh in her evidence has
stated that on 29th May, 2015, she went to the
SRTR Hospital at Ambajogai to act as Panch of
inquest panchnama of Noorjaha. She found
strangulation marks as well as injuries on her
both cheeks, chin as well as on chest. When she
noticed the dead body of Noorjaha in P.M. room at
that time one chain of black beads was in her
neck. She has signed the inquest panchnama. The
strangulation marks and injuries on cheek and chin
on the person of Noorjaha were mentioned in the
said panchnama. When she noticed the dead body of
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Noorjaha in all five injuries i.e. strangulation,
two on her both cheeks, one on her chin and one on
her chest. According to her, the said injuries
were swelling injuries and not bleeding.
34. PW-2 Ramesh Vitthal Chavan was Panch to
the inquest panchnama of Parveen at Exhibit-27. He
noticed that Parveen has sustained injury on her
right cheek and the blood was oozing from her nose
and he also found mark on her neck. He noticed
that her private part was also swollen. He has
signed on the said inquest panchnama.
. During cross examination of PW-1 and PW-2
nothing useful to the defence has been elicited
from them.
35. Therefore, if the evidence of PW-11,
PW-12, PW-1 and PW-2, postmortem report and the
inquest panchnamas would lead to a conclusion that
the death of Noorjaha and Parveen was homicidal,
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and there was intercourse with Parveen.
36. The prosecution examined PW-3 Lahu
Bhimrao Kedar, at the relevant time he was working
as In-charge Talathi at Choramba, Sajja Dharur. On
5th June, 2015, he himself along with Revenue
Circle Inspector Munde went to the Police Station
Dharur. The Police brought accused no.1 from
police custody before them. Accused no.1 made
memorandum statement before them and police that
he committed rape on Parveen and then he committed
her murder as well as he also stated the another
accused no.2 committed murder of Noorjaha. He
further stated before them and police the cloths
on his person at the time of incident are kept by
him in his house and he is ready to produce the
said clothes and handed over it to the police.
Accordingly, the Police prepared memorandum
statement of accused no.1. The statement was
signed by PW-3 and also Revenue Circle Inspector
Munde.
cnfcase3.16
. Lahu (PW-3) further deposed that
thereafter, the Police brought accused no.2 Achyut
Chunche from the police custody before them.
Accused no.2 made memorandum statement before
them. He has stated that he committed murder of
Noorjaha and the clothes wore by him at the time
of incident has been kept in his house and he is
ready to produce the said clothes and handed over
it to the police. Accordingly, the police prepared
memorandum statement of accused no.2 before them.
The said memorandum statement was signed by PW-3
and also the accused.
37. Lahu (PW-3) has stated that the
Dy.S.P.Gawade with Police Staff, accused nos.1
and 2, he himself as well as another Panch Mundhe
went to village Choramba by police jeep. Accused
no.1 produced his one shirt and pant from his
house and the said clothes were seized by the
Police under seizure panchnama in their presence.
cnfcase3.16
The said panchnama was signed by PW-3 as well as
by another Panch. It was also signed by the
Deputy S.P. Gawade. He identified the clothes of
accused no.1 when those were shown to him. He
stated that the label affixed on seized pant
pocket is shown to him and he noticed his
signature and signature of another Panch Munde on
the said seizure panchnama. He also stated that
after that along with police, he himself and
Mr.Munde went to the house of accused no.2.
Accused no.2 produced his shirt and pant from his
house. The said seizure panchnama was prepared and
all of them have signed.
. During the cross examination of PW-3,
nothing useful to the defence has been elicited
from this witness.
38. Mahendrasingh Mahavirsingh Rahekwal
(PW-4), deposed that he received phone call from
Police Station Dharur. He went to the Police
cnfcase3.16
Station, Dharur. It appears that the clothes on
the person of deceased Noorjaha i.e. one sari, one
petti-coat stained by blood and one blouse were
shown to PW-4, and thereafter the Police prepared
seizure panchnama of the clothes on the person of
deceased Noorjaha in his presence and in the
presence of another Panch. The Police also seized
the clothes on the person of deceased Parveen at
the time of postmortem in presence of PW-4. The
Police prepared seizure panchnama. PW-4 identified
his signature on the said panchnama. It is true
that during his cross examination, he stated that
he did not remember the seized petti-coat of
deceased Noorjaha was having lace (thread) or not.
He cannot tell how many buttons were on seized
blouse of Noorjaha. However, he reiterated that in
his presence the seizure panchnama of the clothes
was there and he reiterated his statement of
witnessing such seizure panchnama and signing it
during his cross examination. He denied suggestion
that the Police did not seize the clothes of
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deceased Noorjaha and deceased Parveen in his
presence.
39. The prosecution examined Shaikh Amin
Rasul as PW-5. He stated in his deposition that on
29th May, 2015, he was present in his village
Choramba. He was called by the Police Officer
Gawade on the place of occurrence to act as Panch.
He has stated minute details about articles seized
from the spot. He stated that at the time of
preparing spot panchnama, the police also seized
blood mixed soil on the place of occurrence,
simple soil on the place of occurrence, one nicker
having red colour stained with semen and black
hair attached with the said nicker. The Police
also seized the black hair on the place of
occurrence, one parrot colour lime Dabi of Rajesh
company, one button of fashion company having
white colour, one full and one half buttons of
fashion company, having white colour and six
pieces of broken bangles having faint red pink
cnfcase3.16
colour on the spot in their presence. He can
identify the seized article if shown to him. He
identified all those articles when he was shown
those articles during recording of his evidence.
He also identified his signature. He specifically
stated that the seized full button and one half
button of fashion company having white colour are
the same, which were seized and the label on it
are the same. He put his signature on it. He also
identified other seized articles and his signature
on the seizure panchnama. He stated details about
his relation with the deceased Noorjaha and her
husband Shaikh Chand. He has also stated about the
habits of Shaikh Chand. He stated that the
distance between house of Noorjaha and village
Choramba is 300 meter. He has also stated
topography of the adjoining area of house of the
Noorjaha. He specifically stated that on 27th May,
2015, there was a function of jagran-Gondhal in
the house of Haribhau Sakrudkar. To go to the
house of the said Haribhau Sakrudkar, there was a
cnfcase3.16
way in front of the house of Noorjaha. He stated
that on the day of incident Shaikh Chand was not
at his house.
40. The prosecution examined PW-6 - Gulab
Ismail Shaikh. He is an informant. He deposed that
his brother Shaikh Chand, his wife Noorjaha and
their daughter Parveen were residing in his field
on Chardari road at village Choramba. But eight
days prior to the incident his brother Shaikh
Chand went to the house of their sister at
Koregaon. On 29th May, 2015, he was in his
village. On that day he went to police Station
Dharur for filing report before police about the
death of Noorjaha and Parveen. He deposed that
one day prior to lodging report, he went to his
field in which his brother Shaikh Chand was
residing with his wife and daughter, and on that
day when he was in the field, one Gadekar came
there. Gadekar made demand of drinking water.
Then he told Gadekar to go in the house of Chand
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and to drink water. Accordingly, said Gadekar
went to the house of Chand and opened the door and
entered in the house and Gadekar noticed that
Noorjaha and Praveen were lying in dead condition.
PW-6 further deposed that immediately said Gadekar
rushed to him and narrated him about the death of
Noorjaha and Parveen. Thereafter he himself and
Gadekar went in the house of Shaikh Chand and
noticed that Noorjaha and Parveen were dead and
the blood from nostril of Parveen was oozing as
well as the clothes were also disordered on their
person. Thereafter he returned back to his house
and narrated about the death of Noorjaha and
Parveen to his brothers and their wives.
Thereafter on next day he went to police Station
Dharur and lodged report Exhibit-43.
. During the course of his cross-
examination, PW-6 Gulab further stated that as
mother of Parveen was saying that Parveen was aged
about 14 years, therefore he had mentioned age of
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Parveen as 14 years in report.
41. The prosecution examined PW-7 Ramchandra
Sakrudkar. He deposed that on the day of incident
at about mid-night when he woke up for urine, at
that time he noticed that accused No.1 was
hurriedly going towards his field.
42. The prosecution examined PW-8 Ganpat
Bhimrao Jadhavar. He deposed that on 2nd June,
2015, and again on 8th June, 2015 he carried the
seized articles and submitted the same in the
office of C.A., Aurangabad.
43. The prosecution examined PW-9 Baliram
Mahadeo Ermale. But he turned hostile and did not
support the prosecution case. The prosecution also
examined PW-10 Vachisht Bhanudas Mule on the point
of 'last seen together'. However this witness
turned hostile and did not support the prosecution
case.
cnfcase3.16
44. The prosecution examined PW-13 Ganesh
Namdeo Gawade. He is Investigating Officer in this
crime. He deposed about the manner in which he has
carried out the investigation of the crime.
45. Pursuant to the order passed by this
Court on 2nd February, 2017, one Sandeep Ganpat
Pawar was examined as PW-14 by the Special Judge,
Majalgaon. Pursuant to the order passed by this
Court, further evidence of PW-13 Ganesh s/o Namdeo
Gawade, Dy.S.P. Beed was also recorded by the
Special Judge, Majalgaon.
46. We have discussed the evidence of medical
officers PW-11 Balasaheb Solanke and PW-12
Dr. Vishwajeet Pawar, and PW-1 Samina and PW-2
Ramesh who were panch witnesses to the inquest
panchnamas of deceased Noorjaha and Parveen. The
medical officer PW-12 Vishwajeet Pawar expressed
opinion that death of Noorjaha and Parveen was
cnfcase3.16
homicidal and there was forceful intercourse with
Parveen and further on the basis of pubic hairs,
it is mentioned in the postmortem notes that age
of Parveen was 14 years. It appears that only on
the basis of pubic hairs the conclusion is reached
by the medical officer that age of Parveen was 14
years. It is admitted by the medical officer PW-12
Pawar in his cross-examination that they did not
follow the ossification test. PW-12 Pawar fairly
stated in his cross-examination that it is not
mentioned in the postmortem report that on the
basis of pubic hairs they have ascertained the age
of Parveen as 14 years. Importantly, in the
present case the provisions of the POCSO Act, are
invoked. We find considerable force in the
argument of counsel appearing for the accused that
the trial Court ought to have invoked the
provisions of Section 34(2) of the POCSO Act, to
determine the age of Parveen so as to lend support
to the opinion expressed by PW-12 Pawar that he
has determined her age as 14 years, on the basis
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of pubic hairs. PW-12 Pawar has also given an
important admission in his evidence that he has
not mentioned the age of the injuries in Column
No.17 of the postmortem reports. However, in the
postmortem report it is stated that death of
Parveen was within 36 to 48 hours preceding
conducting the postmortem report.
47. Admittedly, in the present case there is
no eye witness to the prosecutions case and the
prosecution case is entirely based upon the
circumstantial evidence. So far as the
appreciation of the circumstantial evidence is
concerned, the law is well settled. The Supreme
Court in the case of Hanuman Govind Nargundkar and
another Vs. State of M.P.27, held thus:
"It is well to remember that in cases
where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should
in the first instance be fully
27 AIR 1952 SC 343
cnfcase3.16
established, and all the facts so
established should be consistent only with
the hypothesis of the guilt of the
accused. Again, the circumstances should
be of a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability the
act must have been done by the accused."
48. The Supreme Court in the case of Nathiya
vs. State Represented by Inspector of Police,
Bagayam Police Station, Vellore28, in Para-27 of
the Judgment held thus:
"27. As recently as in Sujit Biswas vs.
State of Assam29 and Raja vs. State of
Haryana30, it has been propounded that in
scrutinising the circumstantial evidence, a
court is required to evaluate it to ensure
28 (2016) 10 S.C.C. 298
29 (2013) 12 S.C.C. 406
30 (2015) 11 S.C.C. 43
cnfcase3.16
that the chain of events is established
clearly and completely to rule out any
reasonable likelihood of innocence of the
accused. It was underlined that whether the
chain is complete or not would depend on
the facts of each case emanating from the
evidence and no universal yardstick should
ever be attempted. That in judging the
culpability of the accused, the
circumstances adduced when collectively
considered, must lead only to the
irresistible conclusion that the accused
alone is the perpetrator of the crime
alleged. That the circumstances established
must be of a conclusive nature consistent
only with the hypothesis of the guilt of
the accused, was emphatically propounded."
49. Since the case is based upon the
circumstantial evidence, the motive assumes
importance. According to the prosecution case, so
as to fulfill the sexual lust, the accused
committed forceful intercourse with Parveen and
thereafter they killed Noorjaha and Parveen. In
the light of discussion of the prosecution
evidence and also keeping in view the evidence of
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PW-7 Ramchandra Sakrudkar, who is alleged to have
seen accused No.1 Krushna going hurriedly in the
intervening night of Wednesday and Thursday within
the proximate time of the incident, following
incriminating circumstances would emerge for
consideration in the present case.
i) PW-12 Pawar in his evidence stated that
death of Noorjaha and Parveen was
homicidal and there was sexual intercourse
with Parveen.
ii) Secondly, PW-11 Solanke in his
evidence stated that, at the time of
medical examination accused No.1 Krushna
narrated the history about 'peno vaginal
intercourse with Parimala Chand Shaikh
since 10 days prior to incident and
performed peno vaginal intercourse on same
date of incident, but she was not killed
by him'. PW-11 Solanke also expressed
opinion that accused No.1 is capable to
perform sexual act and he noticed three
injuries on the person of accused No.1 and
the age of said three injuries was within
6 to 8 days preceding the conducting of
examination by him.
cnfcase3.16
iii) The prosecution claims that PW-7
Ramchandra Sakrudkar who saw accused No.1
Krushna in the intervening night between
Wednesday and Thursday, is the witness on
'last seen together'. Subsequent conduct
of accused is relevant under Section 8 of
the Evidence Act.
iv) Fourthly, Chemical Analyzer (for
short "C.A.") PW-14 Sandeep Ganpat Pawar
stated in his evidence that, the DNA
profile of Exhibit-6 semen stain's cutting
from Jangiya of deceased and DNA profile
of accused No.1 Krushna are identical and
from one and same source of male origin
and the DNA profile match the maternal and
paternal allels present in the source.
v) The prosecution claims that
memorandum statement of accused Nos.1
and 2 were recorded wherein they stated
that they were ready to produce the
clothes which were on their person at
the time of incident which have been
concealed by him in the house, and at
the instance of accused No.1 one pant
and one shirt and at the instance of
accused No.2 one pant and one shirt
cnfcase3.16
were seized, and button of said cloth
matched with buttons recovered from the
spot which were of Fashion Company.
50. In order to find out whether afore-
mentioned circumstances brought on record by the
prosecution have been proved or otherwise, we
would like to discuss the evidence brought on
record by the prosecution in relation to each of
circumstance mentioned herein above.
51. It is true that death of Noorjaha and
Parveen appears to be homicidal, as stated by
PW-12 Pawar and injuries noticed on the person of
the deceased and described by PW-1 Samina and
PW-2 Ramesh, who were panch witnesses to the
inquest panchnamas of deceased Noorjaha and
Parveen. There appears to be sign of intercourse
with Parveen. As already observed, PW-12 Pawar has
expressed the opinion that death was within 36 to
48 hours preceding conducting the post-mortem.
cnfcase3.16
It appears that as per the prosecution case the
alleged incident had taken place within 36 to 48
hours preceding of the conducting of post-mortem,
it means that incident had taken place in between
the period on 27th May, 2015, and 28th May, 2015,
since the post-mortem was conducted on 29th May,
2015.
52. The husband of Noorjaha i.e. Chand
Shaikh, is not examined by the prosecution.
Gangabhishan Gadekar was the first person who
opened the door of the house where deceased were
residing and noticed dead bodies in injured
condition, is also not examined by the
prosecution. The police officer Panpatte, who
carried out the initial investigation, is also not
examined by the prosecution. It has come on record
that the spot of incident i.e. house of the
deceased and Shaikh Chand, is situate in a place
where there are no adjoining houses and appears to
be at isolated place. Though the prosecution has
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brought on record PTR record of Gram panchayat
houses of village Choramba, nevertheless there is
no satisfactory evidence brought on record showing
exact location of the house or the spot of
incident, the houses of the accused or any other
important evidence so as to connect the accused
with the alleged commission of offence.
53. It is true that medical officer PW-12
Pawar has expressed opinion that there was
forceful sexual intercourse with Parveen. However,
the real question is, who committed such sexual
intercourse? In order to connect the accused with
such commission of crime, which according to the
prosecution, was done with a motive to first
ravish the victim, and then so as to cause the
disappearance of evidence, kill them, reliance has
been placed on 'medical history'.
54. When history was given to the medical
officer by accused No.1, admittedly, he was in
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police custody. Therefore, such statement given by
accused No.1, when he was in police custody, is
not admissible. And secondly, even if we consider
said history given by the accused to the medical
officer at the time of treatment, while he was in
police custody, the same cannot form basis for
conviction. The Supreme Court in the case of Munna
Kumar Upadhyaya alias Munna Upadhyaya V. State of
A.P., supra, in Para-34 of the Judgment held that,
the history given to the doctor at the time of
treatment would not be strictly an extra-judicial
confession, but would be a relevant piece of
evidence, as the document had been prepared in the
normal course of business. However, upon careful
perusal of other evidence brought on record by the
prosecution, there is no any corroboration to such
statement given by accused No.1 before he was
examined by the medical officer. Therefore, it
cannot form the basis for conviction.
55. Regarding the third circumstance, the
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prosecution has placed reliance on the evidence of
PW-7 Ramchandra Sakrudkar. In his deposition, he
stated before the Court that he is residing with
the family in his field on Chardari road at
village Choramba. The land of one Papa Shaikh is
towards eastern side of his land. On the day of
incident i.e. on Wednesday he went to house of
his brother Haribhau for attending the function of
"Jagran Gondhal". On that day at about 10.30
p.m., he had taken meal and returned back to his
house in the field and slept in the house.
Thereafter at about mid-night he woke up for urine
and came out from his house. At that time he
noticed that accused No.1 was hurriedly going
towards his filed. After urine, he returned back
and slept in the house. On the next day afternoon
he came to know that incident of murder of wife
and daughter of Shaikh Chand took place.
. During the course of cross-examination by
the Advocate for accused No.1, he stated that Papa
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Shaikh is the brother of Shaikh Chand. The house
of Papa Shaikh is opposite to his house,
therefore, they used to go the houses of each
others. Towards Southern side of his house, there
is house of Subhash Sarudkar. The distance between
meters. The land of Accused No.1 is towards
Western side of his land and way for passing
towards land of accused No.1 is passing from his
land Survey No.46. Except the way in his land
Survey No.46, there is no other way for passing
the land of accused No.1.
. In his further cross-examination by the
Advocate for accused No.2 he stated that he has
cordial relations with Papa Shaikh. He denied that
he was deposing falsely on the say of Papa Shaikh.
He denied that he was deposing falsely that on
the concerned day at midnight he woke up for urine
and he noticed that Accused No.1 was hurriedly
going towards his field. He denied that he was
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deposing falsely on the say of Papa Shaikh.
56. Upon careful perusal of evidence of PW-7
Ramchandra Sakrudkar, nowhere he has stated that
he saw accused No.1 Krushna in the relevant night
in the company of the deceased. His statement
nowhere even remotely suggest that he saw accused
No.1 Krushna in the company of deceased either
nearby his house or nearby the spot or at any
other place. At the most, the said statement can
be considered to view the conduct of accused No.1
Krushna under Section-8 of the Evidence Act. But
certainly PW-7 cannot be considered as a witness
to accept the case of the prosecution that he is
the witness on 'last seen together'. He only
stated that he woke up at midnight for urine and
he came out from his house and at that time he
noticed that accused No.1 Krushna was hurriedly
going towards his field. By no stretch of
imagination his aforementioned version can be
construed as the evidence on 'last seen together'.
cnfcase3.16
Though PW-7 stated in his evidence that on the
next day afternoon he came to know about the
incident of murder of wife and daughter of Shaikh
Chand, nevertheless for the reasons best known to
the prosecution, statement of PW-7 came to be
recorded belatedly i.e. on 2nd June, 2015, after
six days. Since defence did not bring on record
omissions, contradictions or improvements by
confronting him the statement made before the
police, we refrain ourselves from commenting upon
the said aspect. However, his deposition before
the Court is quite different than what he has
stated before the police. An important admission
given by PW-7 in cross-examination is that he has
cordial relations with Papa Shaikh who is brother
of Shaikh Chand, husband of deceased Noorjaha. He
admitted that house of Papa Shaikh is opposite to
his house and therefore they used to go to the
house of each others. He has stated that distance
between his house and house of accused No.1
Krushna is 300 to 400 meters. The land of accused
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No.1 is towards western side of his land and way
for passing land of accused No.1 is passing from
his land Survey No.46. Except the way in his land
Survey No.46, there is no other way for passing
the land of accused No.1. The prosecution has not
brought on record the evidence showing that there
was sufficient light or moon light so as to
conclude that PW-7 had proper opportunity to see
accused No.1 Krushna and there was no mistaken
identity. PW-7 has candidly admitted that no
discussion or any exchange of words took place
between him and accused No.1 and he did not ask
accused No.1 where he was hurriedly proceeding. An
admission given by him that there is a land of
accused No.1 towards western side of his land and
there is no other way except from land Survey
No.46 owned by him to go to the land of accused
No.1 makes it abundantly clear that being a farmer
accused No.1 might have gone to his field, and as
already observed, evidence of PW-7 cannot be
construed as evidence on 'last seen together'
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i.e., deceased were last seen in the company of
the accused and thereafter nobody saw them. It is
also relevant to observe that, there is no
corroboration from evidence of any other
prosecution witness to the claim of PW-7 that, he
saw accused No.1 on said night.
57. It appears that prosecution examined PW-9
Baliram Ermale and PW-10 Vachisht Mule on 'last
seen together'. However, they turned hostile and
their evidence is of no use to the prosecution.
While discussing the evidence of PW-7 Ramchandra,
the trial Court has observed that PW-10 Vachisht
corroborated to the version of PW-7 Ramchandra.
But this is incorrect appreciation of evidence, as
PW-10 Vachisht turned hostile and did not support
to the prosecution case, it was not proper on the
part of the trial Court to rely on his version.
Therefore, the position which clearly emerges on
record is that the prosecution failed to establish
that deceased were last seen in the company of the
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accused. There are even no remote circumstances
brought on record by the prosecution that within
proximity of death of Noorjaha and Parveen the
witnesses saw the accused even nearby the house
i.e., spot of the incident, where both the
deceased were residing.
58. The fourth and most important
circumstance according to the prosecution is the
result of DNA Test. The report received from C.A.
was submitted before the trial Court on the day
fixed for recording of the statements of accused
under Section 313 of the Cr.P.C. The say of the
defence was called before taking on record the
report received from C.A. The defence sought an
opportunity to contest the C.A. report, however
the trial Court rejected the said prayer and
proceeded to record statements of accused under
Section 313 of Cr.P.C. During the course of
hearing of this Confirmation Case and Appeals
filed by both the accused, the counsel for the
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accused raised the objection that the trial Court
committed error in admitting the vital documents
of DNA reports Exhibit-95 and 96 directly in the
evidence, without giving sufficient opportunity to
the accused. The counsel submitted that these
documents were produced at the fag end of the
trial, after filing the "Evidence Close Purshis"
on behalf of the prosecution and the date was
fixed for recording statement of both the accused
under Section 313 of Cr.P.C. when prosecution
produced the documents of DNA report on record and
though the accused raised objection for production
of these documents at belated stage, the trial
Court did not accede to the objection and directly
allowed production of these documents. Therefore,
this Court passed detailed order on 2nd February,
2017. After considering the rival contentions made
by the counsel appearing for the parties, and
referring to the provisions of Section 391 of
Cr.P.C., this Court observed in Para-7 of the
order as under:
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"7. Undoubtedly, the Court trying the
criminal trial has a heavy responsibility
and duty to see that fair trial is
conducted within the purview of
established practice and procedure
prescribed under the law. In such
circumstances, we are of the view that it
would be appropriate to send the matter to
the trial Court only for the purpose of
recording the evidence of the Assistant
Chemical Analyzer Shri S.G. Pawar, who had
issued the DNA reports at Exh.95 and 96.
After examination of the Chemical Analyzer
to Government Forensic Laboratory, Mumbai,
the trial Court is directed to record
evidence of I.O. restricted only to the
extent of evidence of the Chemical
Analyzer - Shri Pawar. Moreover, the
statement of accused prescribed under
Section 313(1)(b) of Cr.P.C. be recorded
in regard to the additional evidence of
Shri Pawar, Assistant Chemical Analyzer
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and I.O. in this case. The opportunity to
the prosecution and accused be given to
put questions to these witnesses, as
prescribed under law. This endeavour is
only to afford an opportunity to the
accused to traverse the genuineness and
veracity of the vital piece of evidence in
the form of DNA Reports (Exh.95 and 96)
produced on record. The trial Judge should
take care that cross-examination of Shri
Pawar, Assistant Chemical Analyzer and the
concerned I.O. be restricted to the
documents of DNA (Exh.95 and 96)."
59. Thus, by order dated 2nd February, 2017,
this Court transmitted the matter back to the
concerned Court of Special Judge, Majalgaon, Dist-
Beed, for recording evidence of Assistant Chemical
Analyzer and additional evidence of the concerned
Investigating Officer. Thereafter, the matter was
received from the trial Court after recording
evidence of Chemical Analyzer, additional evidence
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of the Investigating Officer and statement of
accused under Section 313 of Cr.P.C.
60. In the light of above, the fourth
circumstance on which heavy reliance is placed by
the prosecution is the C.A. report which shows
that semen found on said Jangiya (nicker) is of
blood group "A" i.e. blood group of accused No.1
Krushna. In order to appreciate the said
circumstance, we propose to discuss the evidence
of PW-5 Shaikh Amin Rasul, who was the panch
witness to the spot panchnama. We have already
discussed his evidence in earlier part of the
Judgment. PW-5 Shaikh Amin stated that on 29th
May, 2015, he was present in his village Choramba.
He was called by the Police Officer Gawade on the
place of occurrence to act as Panch. He has stated
minute details about articles seized from the
spot. He stated that at the time of preparing spot
panchnama, the police also seized blood mixed soil
on the place of occurrence, simple soil on the
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place of occurrence, one nicker having red colour
stained with semen and black hair attached with
the said nicker. The Police also seized the black
hair on the place of occurrence, one parrot colour
lime Dabi of Rajesh company, one button of fashion
company having white colour, one full and one half
buttons of fashion company, having white colour
and six pieces of broken bangles having faint red
pink colour on the spot in their presence.
61. Therefore, from the deposition of PW-5
Shaikh Amin Rasul it is clear that one nicker
having red colour stained with semen and black
hair attached with the said nicker, was recovered
from the spot. Ganesh Gawade (PW-13) who
investigated the case, at the relevant time
working as Police Sub-Divisional Officer, Beed,
stated that he prepared the spot panchnama by
visiting the spot. At the time of preparing spot
panchnama, he seized blood mixed soil, simple
soil, one ladies nicker of red colour, hair which
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were attached to nicker and also hairs on place of
occurrence. He also seized one Lime Box of Rajesh
company of parrot colour, one button of white
colour of Fashion Company as well as one button
and one half button of Fashion company and the
pieces of broken bangles on the place of
occurrence. Then he obtained signature of the
panchas on the spot panchnama. He further deposed
that on the same day he seized the clothes on the
person of both the deceased at the time of post-
mortem examination which were produced by police
person namely Jadhavar. He stated that on the same
day he seized the clothes on the person of
deceased Parveen which were sent by doctor in one
pocket. The said clothes are one Punjabi Shirt and
Paijama. He has stated further details about
seizure of clothes. However, he has given certain
admissions in his evidence that nicker handed over
by the doctor is not found in Muddemal. He further
stated that as per the pocket sent by doctor he
seized all the articles under panchnama.
cnfcase3.16
62. The prosecution case in the wake of
evidence of prosecution witnesses and in
particular PW-5 Shaikh Amin and PW-13 Ganesh
Gawade is that red colour nicker seized from the
spot at the time of preparing spot panchnama was
sent to C.A., and at one breath PW-13 Gawade has
stated that the nicker handed over by the doctor
is not found in the Muddemal. However, at another
breath PW-13 Gawade stated that as per the pocket
sent by the doctor, he seized all the articles
under the panchnama. It is clear from the evidence
of PW-5 Shaikh Amin and PW-13 Ganesh Gawade that
the nicker which was seized at the time of spot
panchnama was of red colour. At this stage, it
would be appropriate to make reference to the
evidence of medical officer PW-12 Vishwajeet
Pawar. He stated in his deposition before the
Court that when the dead body of Parveen was
brought for post-mortem examination, at that time
torn yellow colour underwear, red colour payjama
cnfcase3.16
as well as yellow colour Salwar were on her
person. In the aforesaid background, therefore,
the question arises, the red colour nicker which
was recovered from the spot belongs to whom? when
the medical officer has stated in his evidence
that, when Parveen was brought for post-mortem
examination, at that time torn yellow colour
underwear was on her person. Therefore, reasonable
inference can be drawn that the red colour nicker
which was seized from the spot at the time of spot
panchnama, belonged to Noorjaha. We have carefully
perused Exhibit-47, a letter dated 1st June, 2015,
written by PW-13 Ganesh Gawade to the Deputy
Director, Regional Forensic Science Laboratory,
Aurangabad, wherein it is shown that the seized
articles were sent for C.A. examination. From the
said letter, it would be relevant to make
reference to Exhibit C-1 i.e. nicker seized at
the time of preparing spot panchnama. Upon careful
perusal of description of Exhibit C-1, the typed
portion shows that the nicker recovered from the
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spot was on the person of Noorjaha Chand Shaikh at
the time of incident which was kept in sealed
envelope. However, subsequently, the name
"Noorjaha" is scored and in handwriting it is
written as "Parveen". PW-13 Ganesh Gawade stated
in his cross-examination that he did not authorize
PW-8 Ganpat Jadhavar to change the contents of
said letter. Thus, it also create serious doubts
about the prosecution case, that really which
nicker was sent to C.A. In his deposition, PW-13
Ganesh Gawade has stated that the seized ladies
nicker of red colour which was shown to him was
the same, which is Article-3. Therefore, the red
nicker which was sent to C.A., was different and
not the same which was on the person of Parveen
when her dead body was taken to the hospital for
post-mortem examination to medical officer PW-12
Vishwajeet Pawar. As already observed, medical
officer PW-12 Vishwajeet Pawar stated that when
dead body of Parveen was brought for post-mortem
examination, at that time torn yellow colour
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underwear was on her person. Therefore, reasonable
inference can be drawn that the torn yellow colour
underwear on the person of Parveen at the time of
post-mortem examination, was not sent to the C.A.
The medical officer PW-12 Vishwajeet Pawar did not
notice any sign of forceful sexual intercourse on
Noorjaha, nor it is the case of the prosecution
that there was any forceful intercourse with
Noorjaha. Therefore, the red colour Jangiya
(nicker) which was recovered from the spot appears
to be that of Noorjaha, which was sent to C.A.
63. Now, we proceed to discuss in detail, the
evidence of C.A. which was recorded pursuant to
order passed by this Court on 2nd February, 2017.
Sandeep Ganpat Pawar was examined as PW-14 by the
Special Judge, Majalgaon. In his deposition he
stated that since 11th January, 2013, he is
serving as Assistant Chemical Analyzer in Forensic
Science Laboratory, Kalina, Santacruz, Mumbai. He
had completed training in DNA, Finger Printing in
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DNA Division, Mumbai. In his service tenure, till
today, he has examined in all 500 DNA cases. He
further stated that on 26th June, 2015, he was on
duty in his office. On that day, he received one
sealed envelope with a letter signed by the Deputy
Director, Regional Forensic Laboratory, Aurangabad
by hand Shri Gaisamudre. Then he analyzed the said
Exhibit and get the DNA profile from the said
Exhibit. Then he received blood samples of accused
on 3rd July, 2015. He analyzed the same Exhibits
and generated the DNA profile of the said
Exhibits. The first blood sample was of accused
no.1 Krushna and second was of accused no.2
Achyut. They match the DNA profile of accused no.1
blood sample with semen stains detected on
Jangiya. Then He gives the interpretation that the
DNA profile of Exhibit-6 semen stain's cutting
from Jangiya of deceased and DNA profile of
accused Krushna are identical and from one and the
same source of male origin and the DNA profile
match the maternal and paternal alleles present in
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the source. He also give the interpretation that
DNA profile of Exhibit-6 semen stains cutting from
Jangiya of deceased and Exhibit-2 blood sample of
accused Achyut are not identical and not from one
and same source of male origin. The DNA profiles
did not match with maternal and paternal alleles
present in the source. Then he prepared report.
Reports at Exhibits-95 and 96 shown to him, are
the same. He put his signature on it. For the test
of DNA, he used PCR Amplification Technique.
. During the course of his cross-
examination, PW-14 Sandeep Ganpat Pawar stated
that he has not received the consent letter for
DNA test of accused from any office. He has not
studied about the legal provisions of DNA Test.
For DNA test consent is must. He read the
scientific literature about DNA test. He did not
read the scientific literature about the fake
results of DNA test can be made. He has no
knowledge about preparation of fake results of DNA
cnfcase3.16
test. As per the report Exhibit-96, he has started
analysis from 2nd July, 2015. As per the said
date, it appears that analysis started before
receipt of the sample. He has perused the letter
of Investigating Officer at Exhibit-80. On the
said letter there was no seal specimen. When a
question was put to him that, is there any letter
in the papers which he has brought with him to
show that his office had ever supplied DNA kit to
the investigating officer of this case, he denied
the said question. He further stated that report
Exhibit-95 did not show how and from whom and on
which date Exhibit-6 received. Similarly, it did
not show in what manner it was received. Exhibit-6
did not show whether it is received from FSL
Aurangabad. Similarly, it did not show, it was
received in sealed condition. While preparing
document Exhibit-95, he was diligent and not at
all lethargic. Column No.5 in Exhibit-95 is an
important column. When a question was put to him
that, had the parcel been received as described in
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Exhibit-95 he has hesitated to write in Exhibit-95
that it was received in sealed condition. He
replied that in refer case they are not mentioning
the same thing. He further stated that sample
Exhibit-6 was received in sealed envelope but he
has not mentioned the same in report Exhibit-95.
On the day of recording his evidence, he has not
brought the said envelope. For the first time he
stated in examination in chief that sample
Exhibit-6 received in sealed envelope. The papers
which he has brought did not show that sample was
received in sealed condition. The whole Jangiya of
deceased was not received. He was unable to tell
size of said sample of Jangiya. Till the day of
recording his evidence the said sample was
preserved in their laboratory. He did not verify
whether sample received was from Jangiya or not.
He was unable to tell that if the said sample of
Jangiya was of male or female. Prior he received
Exhibit-6 said sample was subjected to chemical
analysis. He did not find any traces on sample
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Exhibit-6 in respect of its earlier chemical
analysis. He denied that the said sample was
handled by another person prior to him. On the
said sample it was written "Exhibit-6 semen stain"
by pen. For writing said words, the said sample
was handled. He admits that if sample is
contaminated, its results will not be accurate.
When the question was put to him that the control
sample can be contaminated with the crime scene
sample, he was unable to tell the same. He further
stated that there is no document to show how there
were white blood cells shown in report Exhibit-96.
He did not know whether the WBC were separated
from blood. He did not know whether the WBC can be
separated from blood by centrifuging it. Red blood
cell does not contain DNA. He does not know after
removing WBC from blood sample the DNA of a
targeted person, can be intermixed. DNA can be
obtained from saliva, uprooted hair, semen,
biological fluid and cup touched by lips. If
anything which carries DNA of a person comes in a
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contact with the crime scene sample then DNA of
the control sample and crime scene sample will
match, if the sufficient amount of source will
transfer. In sample Exhibit-6, quantity of source
is not mentioned in report Exhibit-95. Therefore,
training is given for handling the sample
properly.
. During the course of his cross-
examination, PW-14 Sandeep Ganpat Pawar further
stated that it is not mentioned that blood sample
Exhibit-96 received from doctor. It is mentioned
that sample received from police. Blood samples
should be collected by medical officer. In the
sample, it is not mentioned whether it was
collected by medical officer. The RFSL Aurangabad
did not send any blood sample to them. There was
no data that how many people handled the sample
and in what temperature it was kept. The stages of
DNA extraction not mentioned in the report i.e.
protocol of analysis is not mentioned in the
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report. He has adopted 15-STR LOCi and gender
specific Amelogenin Locus using PCR amplification
Technique. In that technique they did not detect
the Methylation. He agreed with the proposition
contained in Para (iv) under heading "FABRICATED
DNA EVIDENCE AND COUNTER-MEASURES" on page No.202,
in Chapter-5, Synopsis 5 from book DNA TEST in
Criminal Paternity Disputes (Scientific
Investigation and Trial) by Dr. Gupta and Agrawal,
Edition-2016, which runs as under:
"(iv) The Nucleix Countermeasure.-
Fortunately the same investigators that
exposed this weakness have suggested a
countermeasure in the form of detection of
DNA methylation. In vivo, nuclear DN
becomes methylated at cytosine bases by
the addition of a methyle group to the
pyramidine ring (Nelson and Cox 2004).
This is a naturally occurring process
that, in the living oganism, is involved
in gene expression and regulation, as well
as DNA replication (Nelson and Cox 2004)
DNA amplified by PCR isn't subject to this
sort of regulation and as a result is not
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methylated. Lab assays to detect
methylation are available, but as yet, the
procedure is not well-automated, is time-
consuming and laborious, and is not
frequently included as part of a forensic
analyst's training (Cottrell 2004).
Further, since "faked" DNA evidence gives
every appearance of being legitimate
(aside from its lack of methylation), and
it may not be obvious in which cases a
life sciences graduate may be involved,
methylation assay must be performed on
every forensic DNA sample if we are to
retain our confidence- legal and moral -
in DNA profiling as a criminal justice
tool. Fortunately the wide publicity of
the Nucleix article is having an effect.
Several life science companies have
announced development of more repid and
automated assays. Nucleix among them
(Cottrell 2004, Eada 2000)."
. PW-14 Sandeep Ganpat Pawar stated that he
did not perform the said test, therefore, he is
not confirm with above proposition. He was unable
to tell that if Methylation is found in DNA it
will be a sure sign that the sample which were
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received for analysis were not contaminated
because he never performed the same test. Till the
day of recording his evidence he never performed
Methylation test and he has no knowledge about the
said test. He denied that he is imperfect in
scientific test or DNA test. He has no data to
show that whether the samples were contaminated or
not contaminated. He did not provide any
sequencing photographs to police. He did not
perform the test for detection of blood in sample
Exhibit-6. Therefore, he was not able to tell
whether the sample Exhibit-6 contained blood or
not. If the blood will transfer to any object, the
DNA profile can be obtained, but it depends upon
amount of source and environmental condition. He
did not examine quantity of semen on sample
Exhibit-6. The colour of said sample Exhibit-6 is
not mentioned in reports Exhibits-95 and 96. He
did not perform any test for detection of
spermatozoa. In letter Exhibit-80, the sample Y-2
and Z-2 were of what, is not mentioned. The said
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samples were received by them in Thermos is not
mentioned in it. It is not mentioned that he
performed analysis of the sample received in
Thermos. He did not ask clarification from the
person under whose signature, the letter was
forwarded to his office. In his report Exhibit-96,
he has not mentioned about Exhibits-Y-2 and Z-2,
he did not know who had given marking Exhibits-Y-2
and Z-2, as referred to in Exhibit-80. He has no
any document to show that the samples were
received as Y-2 and Z-2 as referred in the letter
Exhibit-80. Quantity of blood is not mentioned in
the report. His seniors are Assistant Director,
Joint Director, Deputy Director and Director. His
next promotion will be as a Assistant Director.
He is Sub-ordinate to Assistant Director. The
documents Exhibit-95 and 96 does not bear
signature of Assistant Director. He did not
remember sample of Exhibit-6 was crusty in nature.
He did not remember whether it was puckered. He
did not remember same was plain. He did not
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remember the condition of sample Exhibit-6. The
said condition is not mentioned in reports
Exhibits-95 and 96. He had not checked the
properties of sample Exhibit-6. He did not
analyze motility of stain on sample Exhibit-6. He
performed the test for detection of semen. In
reports Exhibit-95 and 96 he has not mentioned
that the sample Exhibit-6 was having semen.
. During the course of his cross-
examination, PW-14 Sandeep Ganpat Pawar further
stated that he did not perform the test for EDTA,
therefore, it remained in dark. He did not know
the words "isonins" and "isogens". He has not
submitted the calibration certificate of
equipments with reports Exhibits-95 and 96. He
admits that the sample sent to the Lab should be
kept in requisite temperature. He has not
mentioned in reports Exhibits-95 and 96 that
samples were kept in requisite temperature in his
Lab. Sample Exhibit-6 was not received from
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Police Officer. The Police has not requested for
DNA test of sample Exhibit-6 to his office as well
as in letter Exhibit-80. It is not mentioned in
reports about colour and colourless of sample
Exhibit-6. He was unable to tell whether the DNA
of one person can be planted at the crime scene
article. After analysis of sample Exhibit-6, his
office did not return the same to Police. The
number shown in report Exhibit-96 in the chart of
Genotype, are the numbers of DNA LOCUS. The data
of number shown in Genotype column was not already
stored in their lab. That numbers have some
significance. The said numbers were not created on
his own view. Their lab uses standard DNA for
reference. Their Lab has no data base. He did not
know their data Lab is connected with Maharashtra
Police Website. The police persons used to come to
their office. There is no restriction to police on
his part. He did not know if his office restricts
police persons. He did not know word "Dog Tail".
The sample taken on tags or slides are preserved
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by their office. They did not create images of
said tags or slides. There is no mention in
reports Exhibits-95 and 96 about preparation of
any tags or slides for the purpose of analysis. He
has not brought the tags or slides. He has not
brought electronic data about images with him. He
did not supply images with report Exhibit-96 to
police. The date of dispatch of report Exhibit-96
is 7th January, 2016. He was unable to tell on
which date the said report was accepted by police.
His office dispatched reports Exhibits-95 and 96
by post. Those were not received back to him as
unserved. He denied that DNA reports Exhibits-95
and 96 are totally false and prepared without
analysis, and therefore, the so-called Amplified
images were not supplied with reports Exhibits-95
and 96. He denied that to suppress the above fact,
they prepared false documents and attempted to
produce in the Court. He denied that sample
Exhibit-6 was not received by their office. He
denied that the blood sample which he said to have
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matched of accused No.1, as per report Exhibit-96,
is not blood sample of accused No.1. He did not
remember whether there is any signature on Vial.
He do not remember except names, other details
were given on vials or not. It is not their
practice to write in detail on Vials. He has not
mentioned in report that Vials were sealed. He
denied that he only put his signature on reports
Exhibits-95 and 96 and data in said reports is
false. He has not mentioned in reports Exhibits-95
and 96 that he rechecked the data before signing
them. He denied that entries of findings of data
are taken in concerned register by their office.
He denied that their office taken entries of data
on loose papers. Their office also did not take
entries of said data in compute. The number is
given to case and not Code. He has not given Code
in this case. In reports Exhibits-95 and 96, he
has not mentioned that it was of "human". He has
not mentioned in reports Exhibits-95 and 96 that
the stains are of human stains. He denied that he
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is deposing falsely. During interval time he went
with Dy.S.P. Gawade in his Jeep and within one
hous he returned back to Court. Dy.S.P. Gawade is
not his friend. He admits that Dy.S.P. Gawade
offered food to him. He denied that since
childhood, Dy.S.P. Gawade is his friend. He denied
that on the say of Dy.S.P. Gawade he is deposing
falsely.
64. Thus, the evidence of Chemical Analyzer
makes it abundantly clear that he did not
recognize the colour of Jangiya (nicker) wherein
he noticed the semen which he found matched with
blood of accused No.1. It is also important to
note that Sandeep Ganpat Pawar (PW-14) in his
cross-examination stated that, report Exhibit-95
did not show how and from whom and on which date
Exhibit-6 received. Similarly it did not show in
what manner it was received. Similarly it did not
show that it was received in sealed condition. He
further stated that the whole Jangiya of deceased
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was not received. He was unable to tell size of
said sample Jangiya. He did not verify whether
sample received was from Jangiya or not. He was
not able to tell if the said sample of Jangiya was
of male of female. Blood samples should be
collected by medical officer. In the sample it is
not mentioned whether it was collected by medical
officer. There was no data that how many people
handled the sample and in what temperature it was
kept. He also admitted that he never performed
Methylation test and he has no knowledge about it.
He did not examine quantity of semen on sample
Exhibit-6. The colour of said sample Exhibit-6 is
not mentioned in reports Exhibits-95 and 96. In
letter Exhibit-80, the sample Y-2 and Z-2 were of
what, is not mentioned. He has not mentioned that
the sample Exhibit-6 was having semen. He has not
mentioned in reports Exhibits-95 and 96 that
samples were kept in requisite temperature on
their Lab. Sample Exhibit-6 was not received from
police officer. The police has not requested for
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DNA test of sample Exhibit-6 to their office, as
well as in letter Exhibit-80. He did not remember
whether there is any signature on Vial. He did not
remember except names, other details were given on
Vials or not. He has not mentioned in reports
Exhibits-95 and 96 that the stains are of human
stains.
65. Just to ascertain whether the articles
seized at the time of preparation of spot
panchnama by the Investigating Officer were sent
in a proper sealed condition to C.A., it would be
apt to discuss the evidence of PW-8 Ganpat Bhimrao
Jadhavar. During his cross-examination, he stated
that on 1st June, 2015, and again on 6th June,
2015, when Dy.S.P. Gawade directed him to carry
seized articles to C.A., Aurangabad on that day
the above seized articles were in custody of in-
charge of Malkhana namely Rajgire. Both times
Dy.S.P. Gawade directed him orally to carry the
articles to C.A., Aurangabad. When he went to
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C.A., Aurangabad for submitting seized articles on
that day the PSO had taken entry in that regard in
Station Diary. The seized articles were sealed
but the pockets of said articles do not bear the
signature of Rajgire. Admittedly, the prosecution
has not examined said Rajgire who was in-charge of
the Malkhana. Conjoint reading of evidence of PW-8
Jadhavar, PW-13 Gawade and PW-14 Sandeep Pawar,
C.A., reasonable inference can be drawn that the
seized articles were not immediately sent to C.A.
and those were not sent in proper sealed condition
as per the procedure. The Supreme Court in the
case of The State vs. Motia and others 31, held
that:
"Similarly it is necessary that the officer
recovering the articles should immediately
take steps to seal them and evidence should
be produced that the seals were not
tampered with till the identification is
over, or till the articles are sent to the
Chemical Examiner for analysis. In the
absence of such precautions it would always
be open to the accused to say that the
31 A.I.R. 1955 RAJASTHAN 82 (Vol.42 C.N.27)
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police later put human blood on the
articles in order to implicate the accused.
If evidence as to such sealing is not
produced, court cannot place the same
reliance on the discovery of blood stains
on various articles as the Court would have
done if necessary precautions had been
taken."
66. Even if we take the case of the
prosecution at the highest that the prosecution
has brought on record DNA report, in that case
also that itself will not form basis for the
conviction of accused No.1. At the most said
report can be used as corroborative evidence i.e.
the evidence to substantiate other evidence. In
the case of Premjibhai Bachubhai Khasiya vs. State
of Gujarat and another32, placing reliance upon the
exposition of law in the case of Kamti Devi vs.
Poshi Ram33 and in the case of Ranjitsing
Brahmajeetsing Sharma vs. State of Maharashtra and
another34, in Para-14 of the Judgment, it is held
32 2009 Cri.L.J. 2888
33 2001(5) S.C.C. 311
34 2005(5) S.C.C. 294
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that:
"14. It is thus clear that positive D.N.A.
report can be of great significance, where
there is supporting evidence, depending of
course on the strength and quality of that
evidence. If the D.N.A. report is the sole
piece of evidence, even if it is positive,
it cannot conclusively fix the identity of
the miscreant, but, if the report is
negative, it would conclusively exonerate
the accused from the involvement or
charge."
67. So far as the fifth circumstance
recording memorandum statements of accused Nos.1
and 2 and seizure of the clothes at their instance
is concerned, firstly, the memorandum statements
were recorded when the accused were in police
custody and secondly, the clothes were recovered
at the instance of the accused from their houses,
where other family members were also residing. The
prosecution has not brought on record cogent and
clinching evidence showing that really the said
clothes belonged to accused Nos.1 and 2. The claim
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of the prosecution that the clothes which were
allegedly recovered from the houses of the accused
at their instance, button of said cloth matched
with buttons recovered from the spot which are of
Fashion Company, cannot be accepted since such
type of buttons are normally available in market,
and during investigation, no enquiry was made with
any of the inmates of the said houses as to
exactly whom the clothes belonged.
68. We find considerable force in the
argument of the counsel appearing for the
Appellants that the investigation in the present
case to some extent was motivated, due to the
following admissions given by the Investigating
Officer in his cross-examination. In his cross-
examination Investigating Officer PW-13 Ganesh
Gawade admitted that after incident in present
case the political leaders namely President of
N.C.P. Shri Sharad Pawar, Parliamentary Member of
Beed namely Smt. Preetam Munde and Parliamentary
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Member Ramdas Athwale visited village Choramba.
M.L.A. Shri Jaidatt Kshirsagar also visited
Choramba. When the above political leaders came to
Choramba, he met them and at that time the said
political leaders had asked him about arrest of
accused. The S.P. Beed told him to investigate the
matter as early as possible.
69. Considering the manner in which
investigation is carried out in the present case,
we find considerable force in the submissions made
by the counsel appearing for the Appellants that
the Investigating Officer was determined to book
the present Appellants by hook or crook, and to
ensure their conviction so as to save the
investigating machinery from not really tracing
out the real culprits. In this respect the counsel
appearing for the Appellants has referred to the
statement of accused No.1 Krushna, recorded under
Section 313 of the Cr.P.C. on 9th March, 2017. In
reply to Question No.23, as to whether he want to
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say anything else, he replied thus:
"When I was in lock-up the Dy.S.P. Gawade
has taken my semen on cloth and he has
used the same semen."
70. We also find considerable force in the
submission of the counsel for the Appellants that
in the present case, the prosecution has not
examined material witnesses. As observed earlier,
Gangabhishan, who first saw the dead bodies of
Noorjaha and Parveen lying in the house, is not
examined by the prosecution. Rajgire, in-charge of
Malkhana, from whose custody PW-8 Jadhavar claims
that he has taken the seized articles to carry the
same to the C.A., Aurangabad, is also not
examined. According to Investigating Officer
Ganesh Gawade (PW-13), the police constable
Wanjare carried blood sample of accused for DNA
Test to the Forensic Science Laboratory, Mumbai.
Said Wanjare is also not examined by the
prosecution. Mr. Panpatte, who carried out the
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initial investigation, is also not examined by the
prosecution.
71. The Supreme Court in the case of
Shankaralal Gyarasilal Dixit Vs. State of
Maharashtra35 in para 13 held thus :
"13. Since this is a case of circumstantial
evidence, it is necessary to find whether
the circumstances on which the prosecution
relies are established by satisfactory
evidence, often described as `clear and
cogent' and secondly, whether the
circumstances are of such a nature as to
exclude every other hypothesis save the one
that the appellant is guilty of the
offences of which he is charged. In other
words, the circumstances have to be of such
a nature as to be consistent with the sole
hypothesis that the accused is guilty of
the crime imputed to him."
35 AIR 1981 SC 765
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. After discussing the circumstances
brought on record and the evidence available
therein, in the case of Shankaralal Gyarasilal
Dixit (supra), the Supreme Court observed that
though 12 circumstances have been relied upon by
the prosecution, the important circumstance is
that the appellant therein was present in the
house, was not proved by the prosecution.
Therefore, in the facts of that case, Supreme
Court held in Para-26 of the Judgment that the
crucial link in the chain of circumstances is the
presence of the appellant in his house at the time
when the dead body of Sunita was discovered. Once
that link snaps, the entire case would have to
rest on slender tit-bits here and there. This
discussion disposes of the second part of the 4th
circumstance, part of 5th circumstance and
circumstances (6) and (7). The Supreme Court
acquitted the appellant therein.
72. In the present case also, in the light of
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discussion in foregoing paragraphs, it will have
to be held that the chain of circumstances on
which reliance has been placed by the prosecution
has not been established beyond reasonable doubt
by the prosecution. Therefore, benefit of doubt in
favour of the Appellant deserves to be extended.
73. The Supreme Court in the case of Sharad
Birdhichand Sarda Vs. State of Maharashtra36 has
held that, the prosecution must stand or fall on
its own legs and it cannot derive any strength
from the weakness of the defence. It is not the
law that where there is any infirmity or lacuna in
the prosecution case, the same could be cured or
supplied by a false defence or a plea which is not
accepted by a Court. It is also to be borne in
mind that the case in hand is a case of
circumstantial evidence and if two views are
possible on the evidence on record, one pointing
to the guilt of the accused and other his
36 (1984) 4 SCC 166
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innocence, the accused is entitled to have the
benefit of one which is favourable to him.
74. In the light of discussion in foregoing
paragraphs, we are of the considered view that
the entire prosecution case rests upon the
circumstantial evidence and the evidence brought
on record by the prosecution is not cogent,
sufficient, convincing and do not inspire
confidence so as to prove the offence against the
Appellants beyond reasonable doubt. Therefore, an
inevitable conclusion is that the Appellants are
entitled for the benefit of doubt. Hence we pass
the following order:
O R D E R
(I) Criminal Appeal No.527 of 2016
filed by accused No.1 - Krishna s/o
Ramrao Ridde, and Criminal Appeal
No.507 of 2016 filed by accused No.2 -
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Achyut @ Bappa @ Babu s/o Kachru
Chunche, are allowed.
(II) The conviction and sentence
imposed on accused No.1 - Krishna s/o
Ramrao Ridde and accused No.2 - Achyut
@ Bappa @ Babu s/o Kachru Chunche, is
quashed and set aside.
(III) The confirmation sought by the
trial Court of the conviction and
sentence is declined.
(IV) Accused No.1 - Krishna s/o Ramrao
Ridde and accused No.2 - Achyut @ Bappa
@ Babu s/o Kachru Chunche are acquitted
of the offence punishable under Section
449, 354(B), 376(2)(i), 302 read with
34 of the Indian Penal Code, 1860, and
under Section 4 of the Protection of
Children from Sexual Offences Act,
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2012.
(V) accused No.1 - Krishna s/o Ramrao
Ridde and accused No.2 - Achyut @ Bappa
@ Babu s/o Kachru Chunche shall be set
at liberty forthwith, unless their
presence is required in any other
offence.
(VI) accused No.1 - Krishna s/o
Ramrao Ridde and accused No.2 - Achyut
@ Bappa @ Babu s/o Kachru Chunche shall
furnish the bail bonds of Rs.15,000/-
each and surety of like amount each
under Section 437-A of the Code of
Criminal Procedure, before the
concerned trial Court at Majalgaon.
[K.K. SONAWANE, J.] [S.S. SHINDE, J.]
asb/AUG17
