Bombay High Court
Bajarang Tukaram Devkant vs The State Of Maharashtra on 26 September, 2017
Bench: V.K. Tahilramani
13. cri apeals 510-12 & 388-14.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 388 OF 2014
Bajarang Tukaram Devkant
C-5144, Age - 30 Years
[ At present lodged in Kolhapur
Central Prison, Kalamba ] .. Appellant
(Org. Accused No. 1)
Versus
The State of Maharashtra Respondent
WITH
CRIMINAL APPEAL NO. 510 OF 2012
Anna Shankar Bhosale
Age - 30 Years, Occ. : Labourer,
R/o. Indiranagar, Patan,
Tal. Paltan, Dist. Satara.
[ At present lodged in Kolhapur
Central Prison, Kalamba ] .. Appellant
(Org. Accused No. 2)
Versus
The State of Maharashtra
Through P.I. Patan Police Station,
Tal. Patan, Dist. Satara .. Respondent
...................
Appearances
Mrs. Nasreen S.K. Ayubi Advocate (appointed) for Accused No. 1
Mr. Balasaheb R. Deshmukh Advocate for Accused No. 2
Mrs. G.P. Mulekar APP for the State
...................
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13. cri apeals 510-12 & 388-14.doc
CORAM : SMT. V.K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : SEPTEMBER 25 & 26, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Criminal Appeal No. 388 of 2014 is preferred by the
appellant-original accused No. 1 Bajarang Tukaram Devkant
and Criminal Appeal No. 510 of 2012 is preferred by the
appellant-original accused no. 2 Anna Shankar Bhosale
against the judgment and order dated 29.11.2011 passed by
the learned Addl. Sessions Judge, Karad in Sessions Case No.
46 of 2008. By the said judgment and order, the learned
Sessions Judge convicted the appellants as under:-
Convicted Sentenced to
u/S
376(2)(f) R.I. for 10 years and fine of Rs. 5000/- each, in default, to
& suffer R.I. for 6 months.
376(2)(g)
r/w
IPC
302 Imprisonment for life and fine of Rs. 5000/- each, in
r/w default, R.I. for 6 months.
IPC
201 R.I. for 3 Years and fine of Rs. 1000/- each, in default, R.I.
IPC
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The learned Sessions Judge directed that the
substantive sentences of imprisonment shall run
concurrently.
Hereinafter, for the sake of convenience, we shall refer
to the appellants as they were referred to before the
Sessions Court i.e the appellant Bajarang Devkant will be
referred as 'accused no. 1' and the appellant Anna Bhosale
will be referred as 'accused no. 2'.
2. The prosecution case briefly stated, is as under:
(a) The victim girl was the daughter of PW 9 Rubina
and PW 3 Jahangir. The victim girl was about 7
years old at the time of the incident. Rubina,
Jahangir and their children including the victim girl
were residing at Patan, Dist. Satara.
(b) Accused No. 1 Bajarang was working with Jahangir
since about 6 to 7 years prior to the incident.
Jahangir used to do the business of selling fruits.
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Jahangir had given one fruit trolley to accused No.
1 to do business. On account of this, accused No.
1 was acquainted with Jahangir and his family.
Initially, while working with Jahangir, accused No.
1 used to stay in the house of Jahangir, however,
about 3 to 4 years prior to the incident, accused
No. 1 got married. After marriage, accused No. 1
started residing at Devkant Vasti. Accused No. 3
Dilawar was residing at Devkant Vasti along with
his wife and children. Dipanjali was the daughter
of accused No. 3. She was the classmate of the
victim girl. The family of accused No. 3 was also
known to Jahangir and his family.
(c) The incident occurred on 10.2.2008. At about
11.00 a.m., accused No. 3 Dilawar who was the
brother of accused No. 1 came to the house of PW
9 Rubina. Accused No. 3 told Rubina that on that
day, there was birthday of his son and would the
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victim girl like to come to his house to attend the
birthday celebration. At that time, victim girl
stated that she could not go alone. Thereupon,
accused No. 3 stated that he would send his
daughter Dipanjali and the victim girl should come
along with Dipanjali. Thereafter, Dipanjali came to
the house of Rubina at about 4.00 p.m. Rubina
then sent her daughter i.e the victim girl along
with Dipanjali. At that time, the victim girl had
worn white top and yellow colour skirt. At about
7.00 p.m., accused No. 1 came to the house of
Rubina. He had come to give the account of
business for that day. He gave the amount to
Rubina. At that time, Rubina told him that there
was birthday celebration of the son of accused No.
3 in his house, therefore, after celebration was
over, accused No.1 should bring her daughter to
her house. Thereupon, accused No.1 Bajrang told
her not to worry and after the birthday
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celebration, he would bring her daughter back to
her house. Thereafter, accused No. 1 Bajrang
went away.
(d) At about 8.00 p.m., PW 3 Jahangir, the father of
the victim girl came home. He saw that his
daughter was not at home. When he asked his
wife Rubina, she told him that their daughter had
gone to the house of accused No. 3 Dilawar since
there was birthday celebration of son of accused
No. 3. Rubina told Jahangir that their daughter
had gone along with Dipanjali to attend the
birthday celebration, however, their daughter had
not returned home. Rubina also told Jahangir that
she had told accused No.1 Bajrang to bring their
daughter back to the house. Jahangir and Rubina
waited for their daughter but she did not come
that night. Previously on 2-3 occasions, accused
No. 1 Bajrang had taken the victim girl to his
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house and used to bring her in the morning,
therefore, they did not have any suspicion.
(e) On 11.2.2008 in the morning at about 7.00 a.m.,
accused No.1 Bajrang came to the house of
Jahangir. He made inquiry whether the victim girl
had come to his house. Jahangir told Bajrang that
Bajrang was to bring the victim girl to his house
and why Bajrang was making such inquiry.
Thereupon, accused No. 1 Bajrang went away.
Then Jahangir along with his wife Rubina went to
the house of accused No. 1 Bajrang. He made
inquiry with the mother and the wife of accused
Nos. 1 and 3. They found that their daughter was
not present in their house. The mother and wives
of accused Nos. 1 and 3 told Jahangir that their
daughter went to their house earlier day. Then
Jahangir and his wife searched for their daughter,
however, they did not find her, hence, they went
to Patan Police Station and gave missing report.
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They searched for their daughter the entire day.
On 11.2.2008, the dead body of the victim girl was
found at about 7.15 p.m. It was kept in a water
chamber which was in an isolated place. There
was no water in the chamber. There was a pipe in
the water chamber and in that pipe, the dead
body of the victim girl was found. Injuries were
found on the private part and other parts of the
dead body of the victim girl. Jahangir then lodged
FIR (Exh. 76). Thereafter, investigation
commenced. After completion of investigation,
the charge sheet came to be filed. In due course,
the case was committed to the Court of Sessions.
3. Charge came to be framed against the appellants -
original accused Nos. 1 and 2 under Sections 376 (2) (f) r/w
34 of IPC and 376(2)(g) r/w 34 of IPC, under Section 302 r/w
34 of IPC and under Section 201 r/w Section 34 of IPC.
Charge also came to be framed against accused No. 3 under
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Section 363 and 201 r/w 34 of IPC. All the accused pleaded
not guilty to the said charge and claimed to be tried. Their
defence was that of total denial and false implication. After
going through the evidence adduced in this case, the
learned Sessions Judge convicted and sentenced the
appellants as stated in paragraph 1 above, hence, this
appeal.
4. We have heard the learned Advocates for the
appellants and the learned APP for the State. After giving
our anxious consideration to the facts and circumstances of
the case, arguments advanced by the learned counsel for
the parties, the judgment delivered by the learned Sessions
Judge and the evidence on record, for the reasons stated
below, we are of the opinion that accused No. 1 Bajrang
committed rape on the victim girl and thereafter, caused her
death and tried to cause disappearance of evidence by
concealing the body in the pipe in the water chamber.
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5. No doubt, there is no direct eye witness in the present
case and the conviction of the appellants is based only on
circumstantial evidence. The circumstances against accused
No. 1 Bajrang are 'last seen', medical evidence, recovery of
slippers of the deceased at the instance of accused No. 1 and
C.A. report.
6. PW 3 Jahangir was the father of the victim girl. He has
stated that the victim girl was 7 years old at the time of the
incident and she was studying in 2nd standard. He has
stated that he knew accused No. 1 Bajrang as accused No. 1
was working in his business i.e fruit business. He had given
fruit trolley to accused No. 1 Bajrang for his business
purpose. Initially, when accused No. 1 Bajrang was working
with Jahangir, he was living in the house of Jahangir, hence,
accused No. 1 Bajrang knew Jahangir and his family. 3-4
years prior to the incident, accused No. 1 got married. After
marriage, accused No. 1 started residing at Devkant Vasti.
Jahangir has stated that on 10.2.2008, he returned home at
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8.00 p.m. When he asked his wife Rubina, she told him that
their daughter had gone to the house of accused No. 3
Dilawar since there was birthday celebration of son of
accused No. 3. Rubina told Jahangir that their daughter had
gone along with Dipanjali to attend the birthday celebration,
however, their daughter had not returned home. Rubina also
told Jahangir that she had told accused No.1 Bajrang to bring
their daughter back to the house. Jahangir and Rubina
waited for their daughter but she did not come that night.
Previously on 2-3 occasions, accused No. 1 Bajrang had
taken the victim girl to his house and used to bring her in the
morning, therefore, they did not have any suspicion.
Jahangir further stated that on 11.2.2008 in the
morning at about 7.00 a.m., accused No.1 Bajrang came to
the house of Jahangir. He made inquiry whether the victim
girl had come to his house. Jahangir told Bajrang that
Bajrang was to bring the victim girl to his house and why
Bajrang was making such inquiry. Thereupon, accused No. 1
Bajrang went away. Then Jahangir along with his wife Rubina
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went to the house of accused No. 1 Bajrang. He made
inquiry with the mother and the wife of accused Nos. 1 and
3. They found that their daughter was not present in their
house. The mother and wives of accused Nos. 1 and 3 told
Jahangir that their daughter went to their house earlier day.
Then Jahangir and his wife searched for their daughter,
however, they did not find her, hence, they went to Patan
Police Station and gave missing report. They searched for
their daughter the entire day. On 11.2.2008, the dead body
of the victim girl was found at about 7.15 p.m. It was kept in
a water chamber which was in an isolated place. There was
no water in the chamber. There was a pipe in the water
chamber and in that pipe, the dead body of the victim girl
was found. Injuries were found on the private part and other
parts of the dead body of the victim girl. Jahangir then
lodged FIR (Exh. 76).
7. PW 9 Rubina was the mother of the victim girl. She has
stated that her daughter was 7 years old at the time of the
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incident and was studying in 2nd standard. She knew
accused No. 1 Bajrang because he was working with her
husband since 6 to 7 years prior to the incident. Accused
No.3 Dilawar was the brother of accused No. 1. At the time
of the incident, accused No. 1 and accused No. 3 were
residing at Devkant Locality. Dipanjali, the daughter of
accused No. 3 Dilawar was studying in the same class as the
daughter of Rubina, therefore, the family of accused Nos. 1
and 3 were known to their family.
PW 9 Rubina further stated that at about 11.00 a.m.
accused No. 3 Dilawar who was the brother of accused No. 1
came to the house of PW 9 Rubina. Accused No. 3 told
Rubina that on that day, there was birthday of his son and
would the victim girl like to come to his house to attend the
birthday celebration. At that time, victim girl stated that she
could not go alone. Thereupon, accused No. 3 stated that he
would send his daughter Dipanjali and the victim girl should
come along with Dipanjali. Thereafter, Dipanjali came to the
house of Rubina at about 4.00 p.m. Rubina then sent her
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daughter i.e the victim girl along with Dipanjali. At that time,
the victim girl had worn white top and yellow colour skirt. At
about 7.00 p.m., accused No. 1 came to the house of Rubina.
He had come to give the account of business for that day.
He gave the amount to Rubina. At that time, Rubina told him
that there was birthday celebration of the son of accused No.
3 in his house, therefore, after celebration was over, accused
No.1 should bring her daughter to her house. Thereupon,
accused No.1 Bajrang told her not to worry and after the
birthday celebration, he would bring her daughter back to
her house. Thereafter, accused No. 1 Bajrang went away.
PW 9 Rubina further stated that at about 8.00 p.m., PW
3 Jahangir, the father of the victim girl came home. He saw
that his daughter was not at home. When he asked Rubina,
she told him that their daughter had gone to the house of
accused No. 3 Dilawar since there was birthday celebration
of son of accused No. 3. Rubina told Jahangir that their
daughter had gone along with Dipanjali to attend the
birthday celebration, however, their daughter had not
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returned home. Rubina also told Jahangir that she had told
accused No.1 Bajrang to bring their daughter back to the
house. Jahangir and Rubina waited for their daughter but
she did not come that night. Previously on 2-3 occasions,
accused No. 1 Bajrang had taken the victim girl to his house
and used to bring her in the morning, therefore, they did not
have any suspicion. On 11.2.2008 in the morning at about
7.00 a.m., accused No.1 Bajrang came to their house. He
made inquiry whether the victim girl had come to his house.
Jahangir told Bajrang that Bajrang was to bring the victim girl
to his house and why Bajrang was making such inquiry.
Thereupon, accused No. 1 Bajrang went away. Then Jahangir
along with his wife Rubina went to the house of accused No.
1 Bajrang. He made inquiry with the mother and the wife of
accused Nos. 1 and 3. They found that their daughter was
not present in their house. The mother and wives of accused
Nos. 1 and 3 told Jahangir that their daughter went to their
house earlier day. Then Jahangir and his wife searched for
their daughter, however, they did not find her, hence, they
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went to Patan Police Station and gave missing report.
Thereafter, on the next day, the dead body of her daughter
was brought to the house. PW 9 Rubina saw injuries on the
body of her daughter.
8. The first circumstances against the appellant is last
seen. PW 10 Abid has deposed on this aspect. He has
stated that on 10.2.2008 at about 8.00 p.m., he along with
his friend Shabbir went to Cottage Hospital, Patan. While
going to the hospital at Devkant Vasti Road, he found
accused No. 1 along with the victim girl and one unidentified
person along with them. PW 10 Abid stopped his motorbike
and asked accused No. 1 Bajrang where he was taking the
victim girl. At that time, accused No. 1 Bajrang stated that
the victim girl had come to his house to attend the birthday,
therefore, he was taking the victim girl back to her house.
Abid told accused No. 1 that he will be returning home from
the hospital and he would take the victim girl to her house,
however, accused No. 1 told Abid that the mother of the
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victim girl had given the responsibility of reaching the victim
girl to her house to him (Bajrang) and therefore, he would
take her to her house. Thus, the evidence of PW 10 Abid
shows that the victim girl was last seen with accused No. 1
Bajrang.
9. That the victim girl was subjected to rape is seen from
the evidence of PW 6 Dr. Yadav who conducted the
postmortem on the dead body of the victim girl. Dr. Yadav
has stated that on the external genitals, he noticed the
following injuries:-
i. Watery discharge from vaginal opening. Laceration on left
side labia major. 1 x 1 c.m. Hymen torn. Left lateral of 2
o'clock position. Fourchette tear posteriorly;
ii. Multiple abrasions over both thighs on medial and anterior
aspect ranging from 0.5 x 2.0 c.m.;
iii. Abrasion over shin (between knee and ankle) over right
leg. Bruising anteriorly on neck bluish blackish, multiple
abrasion over both buttock and back;
iv. Bruising neck anteriorly muscle blackish blood on opening
of anterior. There was evidence of fracture of hyoid bone.
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Dr. Yadav has stated that injuries noticed in larynx
trachea and bronchia are corresponding to external injuries
of neck with fracture of hyoid bone. According to Dr. Yadav,
the cause of death was due to asphyxia due to throttling. Dr.
Yadav has stated that the injuries seen on the victim girl
were possible due to forcible sexual intercourse. Similarly
multiple abrasion on thighs and skin may be possible during
forceful sexual intercourse.
10. The next circumstance against the accused No. 1 is
recovery of slippers of the victim girl at the instance of
accused No. 1 Bajrang. PW 4 Panch Witness Borate has
deposed on this aspect. He has stated that he was called by
the police to Patan Police Station. In his presence, accused
No. 1 Bajrang made a statement that show the spot where
he threw the slippers of the victim girl. Accused No. 1
Bajrang then led the police and panchas to the spot and
showed the place where he had thrown the slippers of the
victim girl. They saw that the slipper was entangled in
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thorny branch of Babul tree. Thereafter, accused No. 1 took
them to the bank of stream where he had thrown the other
slipper of the victim girl. Police seized the slippers. PW 9
Rubina, the mother of the victim girl has identified the
footwear as that of her daughter.
11. PW 5 panch witness Tanaji has stated that early in the
morning of 12.2.2008, he was called to Patan Police Station.
Police informed him that they were going to seize the clothes
on the person of accused No. 1 Bajrang. Thereafter, police
seized Tee shirt and pant of accused No. 1 Bajrang in
presence of PW 5 Tanaji. The evidence of Investigating
Officer shows that these clothes were sent for chemical
analysis. The clothes of the deceased came to be seized
under panchnama Exh. 84. They were white colour top and
yellow colour skirt. These clothes were also sent to C.A. As
per C.A. report Exh. 113, sample of earth found on the top
and skirt of the victim girl tallied with the sample of earth
found on the Tee shirt and Pant of accused No.1 Bajrang. In
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addition, the C.A. report Exh. 116 shows that blood group of
accused No. 1 Bajrang was "A" group. The C.A. report Exh.
118 shows that the top and skirt of the deceased victim girl
was stained with blood and in addition, the skirt of the victim
girl was stained with semen of "A" group. This is a strong
incriminating circumstance against accused No. 1 Bajrang.
12. One more circumstance which points out to the
complicity of accused No.1 Bajrang is the evidence of PW 8
Dr. Jadhav. Dr. Jadhav has examined accused No. 1 Bajrang
on 12.2.2008 at about 11.30 a.m. On examination, he found
following injuries on the person of accused No. 1 Bajrang:-
i. Abrasion over glans penis proximal to urethral meatus on
superior surface of size 0.5 c.m. x 0.3 c.m. bluish brown in
colour.
In the opinion of Dr. Jadhav, considering the colour of
the said injury, it was aged more than 24 hours and
considering the location of injury on the part of the body, it
was due to trying of penetration of penis into vagina. Thus,
looking to the circumstances proved by the prosecution
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against accused No. 1 Bajrang, we are of the opinion that the
prosecution has proved its case against accused No. 1 -
Bajrang beyond all reasonable doubt.
13. As far as accused No. 2 Anna Bhosale is concerned, the
only circumstance against him is that his blood group was
"O" and on the skirt of the victim girl, semen of "O" group
was found. There is no other circumstance against accused
No. 2 Anna Bhosale. Even as far as the circumstance of last
seen is concerned, though PW 10 Abid has stated that when
accused No. 1 Bajrang was taking the victim girl along with
him at 8.00 p.m. and at that time, one other person was with
accused No. 1 Bajrang, PW 10 Abid has not identified
accused No. 2 Anna Bhosale as the person who was with
accused No. 1 Bajrang and the victim girl at that time.
Looking to the fact that the only circumstance against
accused No. 2 Anna Bhosale is that there was semen of "O"
group on the skirt of the deceased victim girl, in our opinion,
we do not find this circumstance by itself to be sufficient to
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prove beyond reasonable doubt that accused No. 2 Anna
Bhosale is involved in this case. Thus, as far as accused No.
2 Anna Bhosale is concerned, we are inclined to set aside his
conviction under Sections 372(2)(f), 376(2)(g), 302 and 201
r/w 34 of IPC. However, as far as accused No. 1 Bajrang is
concerned, we are inclined to dismiss his appeal. Hence, we
proceed to pass the following order:-
ORDER
1. Criminal Appeal No. 388 of 2014 is dismissed.
2. Criminal Appeal No. 510 of 2012 is allowed.
3. The conviction and sentence of accused No. 2 - Anna
Shankar Bhosale under sections 376(2)(f) and 376(2)(g)
r/w 34 of IPC, 302 r/w 34 of IPC and 201 r/w 34 of IPC is
hereby set aside. His bail bond shall stand cancelled.
[ DR. SHALINI PHANSALKAR-JOSHI, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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