Bombay High Court
Bhagwat Parbati Kshirsagar vs The State Of Maharashtra on 11 January, 2018
Bench: S.S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CONFIRMATION CASE NO. 1 OF 2017
The Addl. Sessions Judge, Hingoli. ...The petitioner
Versus
1. Bhagwat S/o Parbati Kshirsagar,
Age : 18 years, Occupation : Labour,
2. Rahul @ Satish S/o Baban @ Masaji Kshirsagar,
Age : 21 years, Occupation : Labour,
Both R/o. Waranga (Masai),
Taluka-Kalamnuri, District-Hingoli (Original accused).
The accused..
Reference u/s 366 Cr.P.C.
for Confirmation of
sentence of Capital
Punishment.
.................
Mr Amarjeetsingh B. Girase, Public Prosecutor for petitioner
Mrs Pratibha Bharad, Advocate for the accused.
.................
WITH
CRIMINAL APPEAL NO. 180 OF 2017
1. Bhagwat S/o Parbati Kshirsagar,
Age : 18 years, Occupation : Labour,
2. Rahul @ Satish S/o Baban @ Masaji Kshirsagar,
Age : 21 years, Occupation : Labour,
Both R/o. Waranga (Masai), Taluka-Kalamnuri,
District-Hingoli (Original accused). The appellants..
Versus
1. The Stae of Maharashtra,
Through the Police Station Officer,
Kalamanuri Police Station,
Tq. Kalamnuri, Dist. Hingoli.
::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 02:19:17 :::
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2. Sambhaji S/o Harji Kshirsagar,
Age : Major, Occu. Agri.,
R/o. Waranga (Masai), Tq. Kalamnuri,
Dist. Hingoli. The respondents...
CORAM : S. S. SHINDE &
A. M. DHAVALE, JJ.
RESERVED ON : 17.11.2017
PRONOUNCED ON : 11.01.2018
JUDGMENT (A. M. DHAVALE, J.) :-
1. In Special (POCSO) Case No. 3 of 2016, accused nos. 1 & 2
were convicted for kidnapping a girl, aged four years for the purpose
of subjecting her to illicit intercourse, for committing gang rape and
for committing unnatural intercourse and thereafter committing her
murder by gagging her mouth by stuffing raw cotton and for causing
disappearance of evidence all acts committed in furtherance of
common intention of them and sentenced them to various terms as
follows.
SENTENCE
OFFENCE
Substantive Fine In default
363, 34 IPC 7 years Rs. 500/- R.I. 3 months
366, 34 IPC 10 years Rs. 500/- R.I. 3 months
376(2)(I) r/w RI for life Rs. 1000/- R.I. 6 months
34 IPC.
377, 34 IPC R.I. for life Rs. 1000/- R.I. 6 months
302, 34 IPC Sentenced to
death
201/34 IPC 7 years Rs. 500/- R.I. 6 months
2. They are sentenced to capital punishment for committing
murder punishable under Section 302 r/w Sec. 34 of Indian Penal
Code. Hence, the ld. Addl. Sessions Judge, Hingoli has made
reference under Section 366 Cr.P.C. for confirmation of sentence.
Whereas the aggrieved accused have filed appeal against their
convictions and sentences. Along with the two accused, their parents
and brother of accused no.1, total five in number were also
prosecuted, but they were acquitted. Accused nos.1 and 2 were also
prosecuted for offences under Sections 3 and 4 of Protection of
Children from Sexual Offences Act (hereinafter referred to as 'POCSO
Act' for brevity) in the alternative to the charge u/s 376 (2)(f), (i)
and 377 of IPC. The judgment is delivered by Special Judge and
Additional Sessions Judge, Hingoli (Shri. M. P. Divate) on 7.4.2017.
3. The facts relevant for deciding these proceedings may be
stated as follows:
The unfortunate victim Siddhi was aged four years and
three months. She was daughter of P.W.1 Sambhaji, residing at
Waranga (Masai), Taluka Kalamnuri, District Hingoli. Accused no.1
Bhagwat Kshirsagar and accused no.2 Rahul Kshirsagar are
neighbours of P.W.1 Sambhaji and their houses are situated in front
of house of P.W.1 Sambhaji. On 7.1.2016, at about 12.00 noon,
Siddhi returned from her play school. She took her lunch and she was
playing with her sister Riddhi aged two years in front of her house.
Her father's step mother P.W.6 Gayabai was sitting in front of her
house. At about 12.30 to 1.00 p.m., accused no.1 Bhagwat and
accused no.2 Rahul (appellants) came there and offered to provide
chocolates to Siddhi. Siddhi being unaware about evil intention of
accused nos.1 and 2, she followed them calling them as 'bhaiya-
bhaiya'. They took her along with them to a shop of PW8 Shaikh
Bismillah. Thereafter, she did not return. P.W.6 Gayabai started
searching for Siddhi. At 3.30 p.m., one Masarao made a phone call
and informed to PW1 Sambhaji who was out station for work that
Siddhi was missing. PW1 Sambhaji returned home at 4:30 p.m. PW6
Gayabai told him that sometime after 12.00 noon, both the accused
had taken away Siddhi towards a shop for providing chocolates and
since then she was missing. Then, P.W.1 Sambhaji and his relatives
and villagers searched for Siddhi and as she was not found, Sambhaji
reached Kalamnuri Police Station at 6.30 p.m. and reported about
missing of Siddhi. The police did not record the report but came
along with P.W.1 Sambhaji to the village and took both the accused
to the Police Station. Then Police Inspector with other staff came to
the village for taking search. They inspected one house at 9.45 p.m.,
which is claimed to be of accused no. 3-Parbati (father of accused
no.1-Bhagwat). They found Siddhi in dead condition kept in one
white bag of fertilizer with gagging of her mouth by stuffing of raw
cotton in her mouth. There were blood stains on her clothes and
there were injuries on her vagina and anus showing bleeding. Then
dead body along with white bag was taken to Kalamnuri. The police
recorded F.I.R. (Exh.65) of P.W.1 Sambhaji at 4.16 a.m. on 8.1.2016.
It was mainly against accused no.1-Bhagwat and it was alleged that
accused no.2 Rahul had assisted accused no.1 Bhagwat in committing
rape and murder of Siddhi. On the basis of F.I.R. in above terms, the
Crime at C.R.No.9/2016 under Sections 201, 302, 363, 376(2) and
377 r/w 34 of Indian Penal Code and under Sections 3 and 4 of
POCSO Act came to be registered and the same was investigated into
by P.W.19 PSI Premlata Gomase, P.W.20 P.I. Mukund Deshmukh and
P.W.21 Dy.S.P. Prasanna. The parents of accused no.1 Bhagwat
(accused no. 3-Parbati & accused no.5-Panchafula) and parents of
accused no.2 Rahul (accused no.4-Baban and accused no.7-Shobha)
and brother of accused no.1 Bhagwat by name Kavinarayan (A6)
were also prosecuted for causing disappearance of evidence of
murder by concealing the dead body in bag of fertilizer inside the
house of accused no.3 Parbati.
4. During the investigation, the Police Officers conducted spot
panchnama, carried out inquest panchnama and arranged to get the
post mortem conducted. The sample of raw cotton found in the room
and chocolate wrapper were seized. The accused were arrested.
Their medical examination was carried out. Their nail clippings and
blood samples were also taken. Their nail clippings containing cotton
fibres along with cotton taken out from the mouth by Medical Officer
were sent for analysis. Their clothes were seized. The birth
certificates of the appellants and deceased Siddhi and other
documentary evidence was collected. The clothes and other articles
of deceased Siddhi were also seized. The seized articles were sent to
Chemical Analyst and CA reports were collected and after completion
of investigation, the charge-sheet was submitted in the Court. The
prosecution had collected evidence of following type:
(I) Last seen together :
P.W.6 Gayabai, grandmother, P.W.8 Shaikh Bismillah,
shopkeeper and P.W.13 Kusum, relative.
(II) Evidence of custodial death :
Dead body of Siddhi was found in the house in possession
of accused no.3 Parbati, who is father of accused no.1 Bhagwat
(PW1, PW2, PW9, PW12, PW18, PW19 & PW20).
(III) Oedema over penis of A1-Bhagwat & absence of
Smegma on penises of both the accused :
The medical examination of accused nos.1 and 2 showing
absence of smegma on penises of both the accused and oedema over
the glance of penis of accused no.1-Bhagwat (PW11-Dr. Pathade).
(IV) Stains of semen of blood group of both the accused found
on frock of Siddhi.
(V) Human blood & semen found on the underwear of
accused no.2, when he had no injury.
(VI) Cotton fibre in nail clippings :
Nail clippings of both the accused showed fibers of cotton,
which was found similar to the sample of cotton seized from the
mouth of Siddhi and raw cotton found in the room (PW10-Dr. Gude
& PW22 Shri. Vaibhav Deshpande, Asst. Chemical Analyser).
(VII) The wrapper of chocolate provided to Siddhi was found
near the dead body. Chocolates with similar wrappers were seized
from PW8 Shaikh Bismillah.
(VIII) There was a strong reaction of the mob gathered against
accused persons particularly accused no. 5-Panchafula, mother of
accused no.1-Bhagwat and she was required to be taken out of the
village and kept in safe custody of one lady Social Worker. The
accused have contended that, PW1 Sambhaji or a villager have given
fist blow on her face.
5. On submission of charge-sheet, in due course the case was
committed to the Court of sessions. The learned Addl. Sessions Judge
framed charge against seven accused. The present appellants accused
nos.1 and 2 were charged under Sections 363, 366/34, 376 (2)(f)(i),
377/34, 302 and 201/34 of IPC. The charges under Sections 376 and
377 are in alternative with charge under Section 4 of POCSO Act.
6. The accused pleaded not guilty. The prosecution examined
22 witnesses. Defence of the accused is of total denial. They have
denied that the house where the body was found was belonging to
accused no.3 Parbati, father of accused no.1. In statement under
Section 313 Cr.P.C., accused no.1 Bhagwat and accused no.2 Rahul
did not raise any specific defence. Accused no. 1 has not even stated
why the witnesses were deposing against him. Accused no. 2 has
taken a flimsy defence that PW1 Sambhaji was insisting him to come
for labour work with him and his relatives were objecting on the
ground of disturbance in his studies, hence he has been falsely
implicated. There is also defence suggested to PW1 that accused nos.
3 to 7 had a dispute with him over flowing of drainage water.
7. Though the accused had not raised any defence about their
juvenility, considering the birth certificate of accused no.1 showing
his age just above 18 years and admission of PW21 Dy.S.P. More, the
prosecution moved an application for medical examination for
determining age. Accused No. 3-Parbati and accused no. 4-Baban
and accused nos. 1 and 2 were examined as defence witnesses on the
point of their age. The prosecution conducted medical examination
and examined PW23 Dr. Karwa, PW24 BDO on the point of birth
register and PW25 Dr. Sunita on the point of age. Based on the
medical report showing age of accused no. 18 with margin of (+) or
(-) of one year, the accused no.1 in the present Court has raised
defence that he was juvenile at the time of the incident.
8. The learned trial Judge held the accused as not juvenile
and accepted the prosecution case as against the present appellants
and convicted them for various offences and sentenced them as
shown above. Hence this appeal against conviction and in view of
capital punishment, this reference for confirmation.
9. Heard Mrs Pratibha Bharad, learned Advocate for the
appellants and Mr Amarsing Girase, learned P.P. for the State.
10. Learned Advocate Mrs Bharad has filed her additional
written notes of arguments. Learned P.P. Mr Girase has also provided
chart showing the evidence on various aspects. Both have cited
number of rulings, which will be considered at the appropriate stage.
11. Mrs Bharad has raised following points :
(I) The prosecution itself doubted the age of accused no.1
and, therefore, filed application and learned trial Judge
referred accused no.1 Bhagwat for medical examination.
Medical examination shows that accused no.1 was aged
18 years old with margin of (+) or (-) one year. She
argued that accused no.1 Bhagwat was juvenile on giving
benefit of doubt.
(II) On merits, she argued that the evidence of P.W.6
Gayabai, P.W.8 Shaikh Bismillah and P.W.13 Kusum on
the point of last seen together is not reliable and
trustworthy. P.W.6 Gayabai has a weak eye sight and
she identified wrong persons as accused nos.1 and 2 in
the court. Therefore, her evidence is unreliable. P.W.8
Sk.Bismillah has stated that her shop is far away from
the house of deceased Siddhi. There are shops nearer to
the house of Siddhi and, therefore, the accused could not
have taken Siddhi towards the shop of P.W.8 Shaikh
Bismillah. There is no proper description regarding the
chocolates sold. She has not stated that the accused paid
the price. PW3 Kusum had stated that she had seen two
accused taking Siddhi to a particular house. The police
could have definitely searched that house first but the
said house was not searched till 9.45 p.m. P.W.13
Kusum was working in the field from where the said
house was not visible. Her evidence is not reliable.
(III) Mrs Bharad argued that the ground of custodial death is
also not made out as the house in which the dead body
was found is not proved to be the house of accused nos.1
and 2 or their relatives. There is no documentary
evidence about the ownership of the said house and the
possession thereof. The evidence of witnesses in absence
of documentary evidence cannot be relied upon to hold
that the house belongs to accused no.3 Parbati, father of
accused no.1 Bhagwat.
(IV) Mrs Bharad submitted that absence of smegma is not
evidence of commission of rape and as far as injury to
the penis of accused no.1 Bhagwat is concerned, it can be
caused in forceful masturbation or by any other mode.
(V) Mrs Bharad argued that the appellants were nabbed on
the day of incident but, their arrest was shown on the
next date at 8.00 p.m. and there was delay in sending
them to medical examination. Meanwhile, they had
taken bath many a times. Therefore, no blood was
expected on their clothes. The clothes of the accused
were seized but those were not sealed. No semen was
found in the vaginal and anal swab of Siddhi.
(VI) As per evidence of P.W.6 Gayabai, Siddhi was wearing
underwear, whereas the said underwear is not produced.
As per inquest, she had worn legging, but there was no
blood found on it.
(VII) The clothes were not sealed and sent to Forensic Science
Laboratory, Aurangabad after four days and meanwhile,
those were in possession of P.I. Deshmukh and there is
possibility of tampering the clothes so as to prove the
presence of blood.
(VIII) The Investigating Officer committed several mistakes.
He did not draw inquest panchnama on the spot. He has
not seized raw cotton gagged in the mouth of victim and
it was not weighed. He has not immediately registered
the FIR.
(IX) No traces of chocolate were found in the buccal cavity of
deceased Siddhi.
(X) There is no reliable evidence to show that accused nos.1
and 2 had committed rape and murder and kept the
dead body in the place where it was found. The learned
trial Judge erred in shifting the burden on the accused
u/s 106 of Evidence Act in absence of proof of
possession of the house with the accused.
(XI) The prosecution has not examined some material
witnesses.
(XII) The prosecution attempted but failed to produce more
reliable evidence in the form of DNA.
(XIII) Even if the evidence is taken on its face value, it does not
disclose that the accused intended or knew that the
gagging of mouth of the victim would result into her
death. There is no proper evidence to show the quantity
of raw cotton stuffed in the mouth of deceased Siddhi.
Hence, even if the evidence is accepted as it is, still
offence u/s 302/34 IPC is not made out. At the most, it
will be an offence u/s 304-II IPC.
12. Per contra, ld. PP Shri. Girase strongly supported the
judgment of the trial Court. He relied on the circumstantial evidence
disclosed in para 4 above to submit that there is cogent, convincing
and reliable evidence against both the accused and, therefore, the
appeal against the conviction deserves to be dismissed.
13. On the point of confirmation, ld. PP submitted that, the act
of the accused in kidnapping a girl aged 4 years who was entrusted to
them in trust and committing gang rape, unnatural intercourse and
her murder is most cruel, barbaric, inhumane and ghastly act. In
order to satisfy their lust, they have subjected Siddhi to most
gruesome and unbearable acts and in order to suppress the evidence
or to fulfill their lust, she was gagged with raw cotton to death. Their
acts are so ghastly, brutal and inhumane that their young age or
other mitigating circumstances should not be considered. He has
relied on number of rulings to support the sentence of death against
both the accused.
14. Per contra, ld. Advocate Mrs Pratibha Bharad has submitted
that, both the accused are hardly aged 18 to 19 years. They belong
to poor labourer class. There is no previous criminal record against
them. It is not clear whether accused no. 2 had actually committed
rape and unnatural intercourse or not. There was no injury on his
penis. Hence, if the appeal of the appellants is not allowed, their
sentence should be reduced to imprisonment for life.
15. Learned Additional Sessions Judge, Hingoli has done a very
good job in framing of charge early and recording large number of
witnesses to complete the trial within one year and three months
from the date of offence.
16. However, we find that learned Additional Sessions Judge
committed mistakes in framing charge and recording the conviction
under wrong sections on the basis of facts proved.
17. When there was charge under Section 366 read with Sec.34
of Indian Penal Code, no separate charge u/s 363 was necessary, as it
is minor offence of Section 366 of Indian Penal Code. Similarly,
simultaneous conviction u/s 363 & 366 r/w 34 IPC was also not
warranted.
18. In the present case, the victim child was aged four years.
After the enactment of POCSO Act, 2012, the persons who commit
sexual assault on a child earlier punishable under Section 376 or 377
of Indian Penal Code should be charged only under the provisions of
POCSO Act. The POCSO Act being special enactment, it will override
the general provisions of Section 376 & 377 IPC. Admittedly, the girl
was aged four years. It is not a border line case where the alternative
charge under Section 376 and 377 of IPC was necessary. The learned
trial Judge framed charge under Section 4 of the POCSO Act for both
the offences of rape as well as unnatural intercourse. The facts
alleged disclose that the charge should have been framed for
aggravated penetrative sexual assault punishable under Section 5(g)
and 5(i) r/w Section 6 of POCSO Act. Since definition of penetrative
sexual assault is applicable to both rape as well as unnatural
intercourse, there should have been two charges u/s 5(g) & 5(i) r/w
Section 6 of POCSO Act. We find that there is sufficient material to
show that both the accused were made aware about the nature of
charges against them. They were provided with all the necessary
papers. They were represented by lawyers in the trial Court. Mere
wrong reference to Sections 376 & 377 IPC and 4 of POCSO Act
instead of Section 5(g) and 5(i) r/w Section 6 does not cause any
prejudice to the accused and, therefore, case against the accused can
be considered under Section 5(g) and 5(i) r/w Section 6 of POCSO
Act which is identical with Sections 376 & 377 IPC for which the
accused are convicted. (However, the sentences passed u/s 376 &
377 IPC cannot be enhanced).
19. The points for our consideration with our findings thereon
are as under:
Sr. Point Finding
No.
(I) Whether accused nos.1 and 2 were aged In the negative.
under 18 years on the date of the offence ?
(ii) Whether deceased Siddhi met with a Proved.
homicidal death ?
(iii) Whether accused nos. 1 and 2 in Proved.
furtherance of their common intention
kidnapped Siddhi, aged 4 years, from
lawful custody of her parents for
subjecting her to sexual intercourse?
(iv) Whether accused nos.1 and 2 in Proved.
furtherance of their common intention
committed murder of Siddhi?
(v) Whether accused nos.1 and 2, in Proved.
furtherance of their common intention
committed aggravated penetrative sexual
assault (by gang rape per vagina) on a
girl aged four years?
(vi) Whether accused nos.1 and 2 in Proved.
furtherance of their common intention
committed unnatural carnal intercourse on
a girl aged four years punishable under
Section 5 (g) & (i) r/w Section 6 of
POCSO Act?
(vii) Whether accused nos.1 and 2 in Proved.
furtherance of their common intention
caused disappearance of the evidence of
murder, rape and unnatural intercourse?
(viii) Whether this is a rarest of the rare case In the negative.
inviting capital punishment ?
(ix) Whether any interference in the judgment Yes. Conviction
u/s 363/34 IPC
of conviction and sentence is warranted &
set aside.
what order? Conviction u/s
376/34 &
377/34 IPC
altered to
Section 5(g) &
5(i) r/w Section
6 of POCSO Act
& Section 5(g)&
5(i) r/w Section
6 of POCSO Act.
Capital
punishment set
aside and
reduced to life
imprisonment of
not less than 30
years without
remission.
REASONS
[I] Point No. 1 : ISSUE OF JUVENILITY.
20. The Investigating Officer has produced the school
admission form of accused no.1 Bhagwat at Exh.174 and of accused
no.2 Rahul at Exh.175. As per Exh.174, accused no.1 Bhagwat was
admitted on 13.7.2005 in Zilla Parishad Primary School at Waranga
(Masai) and his birth date recorded in the certificate is 30.12.1997.
The incident has taken place on 7.1.2016. Thus, as per the certificate,
he was aged 18 years and 7 days on the date of the incident. As per
certificate Exh.175, accused no.2 Rahul was admitted in the same
school on 3.7.2002 and his birth date recorded is 27.8.1996. Thus,
as per his certificate Exh.175, accused no.2 Rahul was aged 19 years,
4 months and 12 days at the time of incident. Mrs Bharad has relied
on the fact that the learned A.P.P. submitted application Exh.228 on
16.3.2017 to the learned trial Judge after the evidence of almost of
all the witnesses was over, for X-ray (ossification) examination of
accused no.1 Bhagwat for his age determination. The accused gave
no objection and learned trial Judge, by order of relevant date
allowed the application in respect of accused no.1 Bhagwat. He
recorded that there was no dispute about birth of accused no.2 Rahul
as 27.8.1996 and it was proved that accused no.2 Rahul had
completed age of 18 years. The ld. Sessions Judge had recorded the
evidence of accused no.1-Bhagwat and his father Parbati on the same
day and found it insufficient to determine the age of Bhagwat. In case
of accused no.1 Bhagwat, he recorded that Gramsevak, Waranga has
submitted report Exh.227 that the relevant record of 1995-1999
regarding birth of accused no.1 Bhagwat was not available. As per
evidence of P.W.24 B.D.O. Khillare, the birth of accused nos.1 and 2
was not recorded in the Grampanchayat record.
21. The medical examination of accused no.1 Bhagwat was
conducted by Dr. Nandkishore Karwa, who is examined as P.W.23.
He has arranged to get X-ray of ulna, iliac crest etc. Those X-rays
were produced. There was fusion of radius upper end and radius
lower end. Similarly, there was fusion of upper and lower end of
ulna and fusion of iliac crest. He has issued certificate Exh.235 that
Bhagwat was above 18 years of age. Mrs Bharad relied on the
admission given by him that he could not say whether the age of
accused no.1 Bhagwat was less than 18 years. He had not examined
the teeth, particularly, molar teeth. She argued that the opinion is
always subject to margin of (+) or (-) one year and accused no.1
should get benefit of this margin. Besides, the medical examination
should have been by Medical Board.
22. Mrs Bharad relied on
(i) Harpal Singh v State of Himachal Pradesh AIR 1981 SC
361 wherein it is held , that certified copy of entry in the birth
register made by concerned official in discharge of his official duties
is admissible u/s 35 of Evidence Act.
(ii) Hari Ram v State of Rajasthan (2009)13 SCC 211, Rule
12 introduced in 2007 in JJ Rules is retrospective in effect u/s 7A of
2000 Act. The claim of juvenility is to be raised before any court at
any stage. Even if the accused was not juvenile on the date of Act of
2000, he would be governed by the said Act.
(iii) Abdul Razzaq v State of U.P. AIR 2015 SC 1770. Chhotu
v State of Maharashtra Cr. Appeal 423/09 decided by Marlapalle &
A. M. Thipsay, JJ. on 22.03.2011.
Person below 18 years at the time of incident could claim
benefit at any time even if he was not entitled to benefit of juvenility
prior to amendment of 2000 Act.
(iv) Rajendra Chandra v State of Chhattisgarh 2002 Cr.L.J.
1014 SC. Benefit of doubtful date of birth in the birth register was
given to the accused.
(v) Criminal Petition No. 200464/2015 (Siddhu Mane v
State of Karnataka) decided on 23.04.2016 (Kalburgi Bench). In
this case it is observed that if the documents referred above are of
doubtful nature, the case should be referred to Medical Board (and
not to Medical Officer) and the age on the lower side within the
margin of one year should be considered for determining juvenility.
This ruling is not applicable as the documents on record are not of
doubtful nature.
23. The incident took place on 7.1.2016. The Juvenile Justice
(Care and Protection of Children) Act, 2015 was brought into force
from 12.01.2016. Therefore, the case of the appellants would be
governed by The Juvenile Justice (Care and Protection of Children)
Act 2000 and the rules framed thereunder. As per Rule 12(3) of the
Juvenile Justice Rules, 2007, the procedure prescribed is as follows :
"12. Procedure to be followed in determination of
age. -
(1) Not applicable.
(2) Not Applicable.
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be
conducted by the Court or the Board or, as the case may
be, the Committee by seeking evidence by obtaining -
(a)(i) the matriculation or equivalent certificates, if
available, and in the absence whereof; (ii) the date of
birth certificate from the school (other than a play
school) first attended; and in the absence whereof; (iii)
the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year, and, while passing orders in such case shall,
after taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii)
or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the
juvenile in conflict with law."
24. In Ashwinikumar Vs. State of M.P. AIR 2013 SC 553, the
Apex Court has observed;
(i) On conjoint reading of Section 2(k), 2(l), 7(a),
20, 49 r/w Rules 12 and 98, all persons who were below 18
years on the date of commission of offence, even prior to
01.04.2001 would be treated as juveniles and even if the
claim of juvenility was raised after they had attained the age
of 18 years and even when they are undergoing sentence on
conviction, the court shall determine the age in the manner
prescribed in Rule 12 of 2007 Rules.
(ii) The Court has to hold inquiry and not an
investigation or trial but evidence should be taken and not
the affidavits (Para 27). Such inquiry has to be completed
within 30 days (Para 28). The procedure to be followed
under the JJ Act is laid down in Rule 12. The Courts have
to act as kind of guardian over minors (Para 32 & 33). It is
further observed;
34. "Age determination inquiry" contemplated under section
7A of the Act r/w Rule 12 of the 2007 Rules enables the court
to seek evidence and in that process, the court can obtain the
matriculation or equivalent certificates, if available. Only in
the absence of any matriculation or equivalent certificates,
the court need obtain the date of birth certificate from the
school first attended other than a play school. Only in the
absence of matriculation or equivalent certificate or the date
of birth certificate from the school first attended, the court
need obtain the birth certificate given by a corporation or a
municipal authority or a panchayat (not an affidavit but
certificates or documents). The question of obtaining medical
opinion from a duly constituted Medical Board arises only if
the above mentioned documents are unavailable. In case
exact assessment of the age cannot be done, then the court,
for reasons to be recorded, may, if considered necessary, give
the benefit to the child or juvenile by considering his or her
age on lower side within the margin of one year.
35. Once the court, following the above mentioned
procedures, passes an order; that order shall be the conclusive
proof of the age as regards such child or juvenile in conflict
with law. It has been made clear in subsection (5) or Rule 12
that no further inquiry shall be conducted by the court or the
Board after examining and obtaining the certificate or any
other documentary proof after referring to sub-rule (3) of the
Rule 12. Further, Section 49 of the J.J. Act also draws a
presumption of the age of the Juvenility on its determination.
36. Age determination inquiry contemplated under the JJ Act
and Rules has nothing to do with an enquiry under other
legislations, like entry in service, retirement, promotion etc.
There may be situations where the entry made in the
matriculation or equivalent certificates, date of birth
certificate from the school first attended and even the birth
certificate given by a Corporation or a Municipal Authority or
a Panchayat may not be correct. But Court, J.J. Board or a
Committee functioning under the J.J. Act is not expected to
conduct such a roving enquiry and to go behind those
certificates to examine the correctness of those documents,
kept during the normal course of business. Only in cases
where those documents or certificates are found to be
fabricated or manipulated, the Court, the J.J. Board or the
Committee need to go for medical report for age
determination. (underlining is ours)
25. Since accused no. 1-Bhagwat was just above 18 and he is
sentenced to capital punishment, we as a matter of caution
summoned the Headmaster to produce the original register of school
admission. On 27.09.2017, the Headmaster has produced before us
the register and extracts of entries of school admission of accused
nos. 1 and 2 and also the applications made by Parbati (A3), father of
accused no. 1 and Baban (A4), father of accused no. 2 for admission.
Those are taken on record. The applications are signed by father of
accused nos. 1 and 2, respectively. The copies thereof are taken on
record and marked as Exh. 251, 252 and copies of register are
marked as Exh. 174-A, 175-A & shall form part of the trial court
record. We are convinced that, the birth date registered in the first
school of admission of accused nos. 1 and 2 are as per certified copies
at Exh. 174 and 175. Since both the accused are not having
matriculation or equivalent certificates, the entries in the school
admission register will prevail and shall have conclusive value. It was
not at all necessary for the prosecution and the trial Judge to subject
accused no. 1 for medical examination. Hence, the margin of (+) (-)
one year is not applicable at all. Hence, accused no. 1 Bhagwat born
on 30.12.1997 was aged 18 years and 07 days on the date of incident
and accused no. 2 Rahul born on 27.08.1996 was aged 19 years 4
months and 10 days on date of incident i.e. 07.01.2016. Hence, we
hold that, they were not juveniles. Point no. 1 is answered
accordingly.
26. On the point of appreciation of evidence, reliance is
placed on;
(i) Hanumant v State of M.P. AIR 1952 SC 343
12. It is well to remember that in cases where the evidence in
of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance
be fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
pendency 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. .......
(ii) Sharad Sarda v State of Maharashtra AIR 1984 SC 1622
(iii) Padala Veera Reddy Vs. State of Andhra Pradesh AIR
1990 SC 79
(iv) Shankarlal Vs. State of Maharashtra AIR 1981 SC 765.
(v) Abdul Salam Vs State 1951 CJ (J&K) 1, wherein it is
observed in para 10 thus:
10. In a case of circumstantial evidence, the judgment
remains essentially inferential. Inferences are drawn
from established facts, as the circumstances lead to
particular inferences. The Court must draw an
inference with respect to whether the chain of
circumstances is complete, and when the circumstances
therein are collectively considered, the same must lead
only to the irresistible conclusion, that he accused alone
is the perpetrator of the crime in question. All the
circumstances so established must be of a conclusive
nature, and consistent only with the hypothesis of the
guilt of the accused.
(vi) Hukum Singh Vs State of Rajasthan 2011 ALL SCR
(O.C.C.) 44. In para 7, it is observed as under :
7. ........ If the circumstances proved in a particular case
are not inconsistent with the innocence of the
accused and if they are susceptible of any rational
explanation, no conviction can lie.
(vii) In Sujit Biswas Vs. State of Assam AIR 2013 SC 3817, it
is laid down that suspicion however strong cannot take the
place of proof.
[II] Point No. 2 : WHETHER THE DEATH IS HOMICIDAL?
27. The evidence of PW1 Sambhaji, PW9 Govind Bedre, PW20
PI - M.R. Deshmukh, disclose that, on 07.01.2016, at 09:45 p.m.,
Siddhi's body was found in folded condition in a white bag of
fertilizer in one house. Her mouth was gagged with stuffed raw
cotton. The witnesses realized that she was dead but she was
immediately taken in a Police Jeep to Government Hospital at
Kalamnuri. Dr. Prafulla Pathade, PW11, stated that she was brought
to him at 10:30 p.m. and on examining her, he declared her as dead.
28. On the next day morning at 08:30 a.m., inquest
panchanama was drawn in presence of PW3 Tulshiram, he noticed
raw cotton stuffed in her mouth. There was bleeding per vagina and
per anus and white coloured fluid discharge from the nose. The
panchas opined that, Siddhi died due to gagging of her mouth by
stuffed raw cotton. Thereafter, PW10 Dr Mahesh Gude and PW11
Dr. Pathade have conducted post-mortem at 09:45 to 11:50 a.m.
They found mild cynosis over nail beds of finger. Mucoserous fluid
was oozing from nostril and making a dribbling continuous marks
upto tragus of left ear. They noted following injuries;
Oedema over both labia majora and oozing of blood
through vaginal orifice.
i) Lacerated wound of size 2x2.5 cm. Exhibit No. extending
from ruptured hymens in vaginal canal along its axis.
ii) Laceration having size 1.5 x 0.5 extending from superior
portion of external aal sphincter into the annal canal.
iii) Three small contusion marks ad measuring 2 mm in diameter
and 2 cm. From left angle of mouth in an infero-lateral
region forming grossly a<<L shaped mark.
9. 1. .....
2. Thorax : Wall, ribs, cartilages intact. Pleura intact and
congested. Larynx, trachea and bronchi congested with
areas of petecheil haemorrhages seen. Right and left lungs
deeply congested. Pericardium congested with petecheil
haemorrhages. Heart with weight congested approximately
70 gms. Large vessels intact. No injury seen. On dissection
of abdomen following was noticed.
1) Laceration of size 1.5 x 0.5 cm. under side of upper level of
right upper incisors.
2) Oral cavity and pharynx completely filled with packed raw
cotton. All teeth were intact in the sockets.
3) Oesophagus congested and intact with small cotton
particles.
4) Stomach and its contents 100 ml. Of semi digested food
with greyish yellow colour. Small intestine was empty, was
filled and distended and was intact. Large intestine faecal
matter was present and intact.
5) Liver and gall pancreas and supra ranals were intact.
6) Spleen was congested and intact. Kidney was intact.
Bladder was empty and intact.
7) Organs of generation:- Uterus was intact not fully
developed. Small size with intact ovaries masovarium and
fallopinc tubes were intact.
8) On examination of contents of stomach, he opined that last
meal was taken before 2-3 hours of death.
29. All injuries were ante-mortem. They had preserved the
viscera and was forwarded to CA and as per CA report Exh. 104 of
no poisoning, Dr. Gude has opined that Siddhi died due to asphyxia
due to gagging. Their provisional death certificate and PM notes are
at Exh. 102 and 103.
30. The defence has not disputed that, Siddhi died due to
gagging. However, Mrs. Bharad, learned counsel for the accused
argued that, the cotton taken out from the mouth was not weighed
and therefore it is not clear whether the person who gagged her
mouth with cotton had intention to commit her death or not. In any
case it is not disputed that it is a culpable homicide. Whether it
amounts to murder or not will be considered separately. We answer
point no. 2 accordingly in the affirmative.
[III] Kidnapping, Rape, Unnatural intercourse, Murder and
Disappearance of evidence by A1 & A2:
31. PW6 Gayabai has deposed that, on 07.01.2016 at about
12:30 noon, both the accused took away Siddhi while she was
playing in front of her house, by luring her with offer of chocolates.
Thereafter, there was hectic search taken but, Siddhi was not traced
till 09:45 p.m. At 09:45 p.m. Siddhi was found dead with bleeding
from vagina and anus and injuries to orifices of vagina and anus. It is
crystal clear that, Siddhi was brutally subjected to rape as well as
sodomy and at the same time in order to see that she does not raise
shouts, raw cotton of substantial quantity was stuffed in her mouth
and thereby her mouth was gagged. This has resulted into her death.
It is obvious that, the person who committed rape and sodomy must
have committed homicide as well and the circumstances indicate that
all three offences must have been committed by the person who were
lastly seen together with her.
32. PW6 Gayabai has stated that, after Siddhi came from play
school at about 12:00 p.m., she had taken her lunch. As per evidence
of PW10 Dr Mahesh Gude and PM notes Exh. 103, 100 ml of semi-
digested food with yellowish liquid was found in the stomach of
deceased Siddhi. The small intestine was empty. From the above
facts, Dr. Mahesh Gude has opined that Siddhi died within 2-3 hours
after her last meals. There is no challenge to this evidence. As per
this evidence, Siddhi died at about 02:00 to 04:00 p.m.
33. Dr. Mahesh Gude on the basis of the injuries noted on the
private parts of the deceased Siddhi gave opinion that, she was
subjected to penetrative sexual intercourse per vagina as well as per
anus.
34. It was argued that, no semen was found in the vaginal
swab and anal swab but, the evidence shows that, Siddhi had a
profused bleeding from vagina. The inquest panchanama shows
bleeding from anus as well. Considering the nature of the injuries
suffered by Siddhi on her vagina and anus, she was definitely
subjected to rape and unnatural intercourse.
35. Krishan Kumar Malik Vs. State of Haryana AIR 2011 SC
2877 (para 43 & 44), relating to collection of sperm for fool proof
case is therefore not applicable to the present facts.
36. Taking into consideration all above facts, the act of
kidnapping, rape, sodomy and murder have taken place within short
time and are integral part of same transaction. It is certain that, the
person/persons who had kidnapped her must have committed rape
and unnatural intercourse amounting to penetrative sexual assault on
her and he/they has/have attempted to cause disappearance of
evidence. Therefore, all these points will have to be considered
together.
37. The prosecution has examined 22 witnesses. The
chronological events, the oral evidence and documentary evidence in
respect of those events may be stated as follows.
Sr.No. Date, time and event. Evidence
01/07/16
1 12:00 noon. Deceased Siddhi came from School and had a PW6
lunch. Siddhi was playing in front of her house. Gayabai.
2 12:30 to 01:00 p.m. Accused nos. 1 and 2 took Siddhi from PW6
the courtyard of PW1 Sambhaji by offering her Gayabai.
chocolates and went towards shop.
3 12:30 to 1:00 p.m.: Both the accused along with Siddhi went PW8
to the shop of Shaikh Bismillah PW8 and Shaikh
PW8 provided four chocolates worth Rs. 2/- free of charge to Bismillah.
Siddhi.
4 01:30 to 02:00 p.m.: Both the accused proceeded along with PW13
Siddhi towards their house. Kusum
5 2:00 p.m. onwards : PW6 Gayabai and others started search PW6
of Siddhi. Gayabai.
6 After 2 hrs. Accused no. 1 - Bhagwat came to PW6 Gayabai. PW6
PW6 asked him where was Siddhi and he told her Gayabai.
that Siddhi went to shop and he would see Siddhi and left the
spot and did not return.
7 03:30 p.m. : One Masarao gave ring to PW1 Sambhaji, PW1
father of Siddhi, and informed that Siddhi was
missing.
8 04:30 p.m. : PW1 Sambhaji came home. PW6 Gayabai told PW1
him that after returning from school at 12:00 Sambhaji
noon Siddhi had taken lunch and while playing in courtyard, (PW6
accused nos. 1 and 2 had taken her away for providing Gayabai
chocolates. is silent).
9 04:30 to 06:00 p.m. : PW1 Sambhaji and others searched for
Siddhi but she was not found.
10 06:00 to 06:30 p.m. : PW1 Sambhaji went to Police Station PW1
at Kalamnuri (13 kms. from Waranga Sambhaji
(Masai) and reported about missing of Siddhi and expressed & PW19
his suspicions against accused no. 1-Bhagwat and accused Lady PSI
no.2-Rahul. Gomase.
11 07:15 to 08:00 p.m.: PSI Gomase with PW1 Sambhaji came PW1
from Kalamnuri to Waranga. PW19 faced Sambhaji
a violent crowd and felt that they would have assaulted A1 and
and A2. She picked up Bhagwat (A1) from a place near his PW19 PSI
house while NPC Chavan and Driver picked up Rahul (A2) Gomase.
from his house and brought them to the Police Station at
08:00 p.m.
12 PI Deshmukh made inquiry with both the accused. PW1 and PW20 - PI
many villagers came to the police station for further inquiry Deshmuk
and the mob had become aggressive. Attempts of PI h & PW1
Deshmukh to pacify them were unsuccessful. Sambhaji
13 PI Deshmukh along with PW1 and two constable Mane and PW20 - PI
Raut r/o Waranga proceeded to Waranga in a Jeep. A1 & A2 Deshmuk
left at the Police Station. Several villagers followed them on h & PW1
bikes. PI Deshmukh promised them that there would be Sambhaji
proper investigation. Press reporter - Rahul Mene and his & PW9
friend PW9 Govind accompanied the police. Govind
14 PI Deshmukh went to the field of Parbati (A3), father of PW20
Bhagwat (A1). Several villagers came there with torches.
Siddhi was not found in the field.
15 09:30 p.m. : Police Patil, PW1 Sambhaji and villagers PW1
showed the house of Parbati (A3). Accused nos. Sambhaji
3 to 7 obstructed them from entering. Panchafula (A3),
mother of Bhagwat (A1) told them that there was nothing in PW19
the house and they should not take search of the house. Still (Para 3)
they entered. PI Deshmukh, PW9 Govind, PW1 Sambhaji and
several others entered the house. Siddhi was not found in PW20
first two rooms. (Para 5)
16 09:45 p.m. : PW9 Govind saw a white coloured gunny bag PW9,
kept behind two pieces of wooden rafters and a PW20,
barrel near bags of sand. On touching the bag, he found PW1
some soft substance. He called Police Driver, his friend Rahul
Mene and PI Deshmukh. The bag was opened. Siddhi's body
was found in folded condition in the bag. Her mouth was
gagged with raw cotton. They realized that she was dead.
17 PW1 Sambhaji and the villagers started weeping. They got PW20,
annoyed. They started shouting. PI Deshmukh apprehending PW1,
danger made call to PW19 PSI Gomase and asked her to PW15,
come to Waranga with all available police staff apprehending PW19.
danger to the accused (relatives of A1 & A2), he brought the
Jeep very near to the house put the gunny bag with dead
body and Panchafula and PW1 in the Jeep and proceeded
towards Police Station. Constable Bele, Pandit and Police
Patil were asked to lock the house and guard it. PW15 Bele
guarded it till the next day.
18 10:30 p.m. : The police arrived at Civil Hospital, Kalamnuri. PW11
PW11 Dr. Pathade opened the gunny bag and
examined Siddhi and declared her dead. That time, there
was huge mob outside the hospital and there was no light.
19 11:35 p.m. & 04:15 a.m. (08.01.2016) : FIR of PW1 Sambhaji PW1,
Kshirsagar was recorded and crime PW19,
was registered at C.R. No. 9/16. FIR,
Exh. 65 &
01/08/16
20 04:16 a.m. : FIR registered.
21 07:00 a.m. : PI Deshmukh drew inquest panchanama. PW20,
PW3,
Exh. 70.
22 Request letter by PI Deshmukh for PM and collection of Exh. 99,
evidence. Exh. 101
23 09:45 to 11:15 a.m.: PM conducted, provisional death PW10,
certificate issued. PW11,
Exh.100
& 102.
24 11:00 to 12:30 : PI Deshmukh collected four samples PW5,
of chocolates of the type given by PW8 PW8
to Siddhi PW20,
Exh.87.
25 01:00 to 01:50 p.m.: Spot panchanama drawn by PI PW2 &
Deshmukh. PW20.
26 07:40 & 07:50 p.m. : PI Deshmukh arrested accused nos. 1 PW4,
and 2. PW20
and
Panchana
ma Exh.
72 & 73.
27 08:30 p.m. PI Deshmukh seized T-shirt and brown pant and Exh. 74,
underwear of A1. (Articles 4 to 6). PW4,
PW20.
28 09:10 to 09:40 p.m. : PI Deshmukh seized full-shirt, black PW4,
full pant and purple underwear of accused PW20,
no.2 (articles 7 to 9). Exh.75.
29 10:30 p.m. : PW 11 Dr. Pathade examined Bhagwat (A1), PW11
noted oedema to his penis and certified that he Certificat
was potent. Collected samples of pubic hair, semen nail e Exh.
clippings and sealed them. No smegma found. 116, 117
& 119.
30 10:40 p.m. : PW 11 Dr. Pathade examined Rahul (A2) PW11
certified that he was potent. Collected samples Certificat
of pubic hair, semen, nail clippings and sealed them. No e Exh.
smegma found. 118.
31 Further investigation carried out by PW19 PSI Gomase, PW20
PI Deshmukh, PW21 Dy.S.P. More.
11.01.2016 :
32 Articles sent to CA through PW14. PW14,
Exh. 135
to 137
(CA
reports
Exh. 104,
107 to
109).
13.01.2016
33 Sending samples for DNA through PW15. PW15,
Exh. 139,
Exh. 140.
DNA
reports
not
received.
38. Following are the witnesses and other documents :
PW1 Sambhaji (father of victim) - last seen/custody death.
PW2 Ramakant Kanthale (spot panch, panchanama Exh.64.
Seizure of chocolate wrapper and cotton from the spot). Map
Exh. 68.
PW3 Tulshiram - Panch to inquest panchanama (Exh.70).
PW4 Panch to arrest of accused nos. 1 and 2 (Exh.72 & 73).
Seizure of clothes of accused nos. 1 & 2 (Exh.74 & 75).
PW5 Vishal, panch to purchase of samples of chocolates Cintu
Eclairs from PW8 Shaikh Bismillah (panchanama Exh.87).
PW6 Gayabai (grand-mother of Siddhi) last seen together.
PW7 Ayaj Khan, panch to seizure of white gunny bag, frock and
legging (article 1, 2 & 3) after PM (Exh. 95).
PW8 Shaikh Bismillah, Shopkeeper, who lastly saw Siddhi with
accused nos. 1 and 2. Identified chocolate wrapper found on
the spot (article 11).
PW9 Govind, Search of disputed house at 09:45 p.m. and recovery
of dead body in a gunny bag and on conduct of A1 Bhagwan's
mother Panchafula.
PW10 Dr. Mahesh Gude conducted PM. Correspondence Exh. 99,
100, 101 & Provisional Certificate and PM Notes (Exh. 102 &
103). CA reports Exh. 104 to 111 and letters to CA Exh. 112
to 114.
PW11 Dr. Pathade. Examination of accused nos. 1 and 2 certifying
about their potency. Presence of smegma on their penis and
oedima over glance of penis of accused no. 1 and collection
of nail clippings. Sealing the same and giving to police.
Certificates Exh. 116, 117, 118 & 119.
PW12 Gramsevak - Ambhore. Correspondence and GP extracts and
Domicile Certificates Exh. 121 to 132.
PW13 Kusum, last seen together.
PW14 PC Namdeo, Carrier (Covering letters Exh. 135 to 137).
Carried on 11.01.2016.
PW15 Police Naik Bele, who guarded the spot during the night
before spot panchanama and carrier of DNA samples
(covering letters Exh.139 & 140). Carried samples on
13.01.2016.
PW16 Circle Inspector Sovitkar (Letter Exh. 142 & map of the spot
Exh. 143).
PW17 Revenue Inspector Sule, who conducted nil searches Exh. 145
to 149.
PW18 Sanjay, Photographer (Photos Exh. 153 to 159).
PW19 PSI Smt. Gomase, IO. (Correspondence, 7/12 extract Exh.
161 to 169).
PW20 PI M.R. Deshmukh, IO. Birth certificates of A1 & A2 (Exh.
174 & 175). Correspondence Exh. 171, 176 to 182. Birth
certificate of Siddhi (Exh.183). Seizure of white bag of
fertilizer (Exh.184). Correspondence (Exh. 185, 186, 198 &
other relevant muster rolls).
PW21 Dy.S.P.- Prasanna More, Correspondence Exh. 205 to 208.
CA reports (Exh. 214 to 216).
PW22 Vaibhav Deshpande, Asst. Chemical Analyser. Evidence of
fibres of raw cotton similar to the spot found in nail clippings
& CA reports (Exh.214 to 216, 218 & 219, 222 to 225).
PW23 Dr. Nandkishor Karwa, Radiologist. On x-rays of ossification
of accused no.1- Bhagwat.
PW24 BDO Khillare (No birth register maintained from 1995 to
1999 for Waranga Masai.
PW25 Dr. Sunita. On age of accused no. 1 as 18 to 19 (Letter Exh.
247 & Age Certificate Exh. 248).
EVIDENCE OF LAST SEEN TOGETHER :
39. On this point, following rulings are submitted :
(i) Ram Reddy v State of A.P. [2006 (10) SCC 172]
27. The last seen theory, furthermore, comes into
play where the time-gap between the point of time when
the accused and the deceased were last seen alive and
the deceased is found dead is so small that possibility of
any person other than the accused being the author of
the crime becomes impossible. Even in such a case the
courts should look for some corroboration. (See also
Bodh Raj v. State of J. and K. (2002 (8) SCC 45).
(ii) Shivaji Alhat v State of Maharashtra (2008) 15 SCC 269.
(iii) State of U.P. v Satish (2005) 3 SCC 114.
(iv) State v Viram Rajput (Confirmation Case No. 3/2014)
decided by Smt. V. K. Tahilramani & I. K. Jain, JJ. dt.
16.02.2015.
(v) Nagraj Vs State 2015 Cr. L. J. 2377 SC.
Absence of explanation by the accused can't lead to
adverse inference unless the prosecution discharges its
initial burden.
(vi) Anjan Kumar Sarma Vs State of Assam AIR 2017 SC
2617.
. Last seen together with absence of
explanation is weak piece of evidence. When it is
established by the prosecution that the time gap
between the point of time when the accused and
deceased were found together alive and when the
deceased was found dead is so small that possibility
of any other person with the deceased could
completely be ruled out. The time gap would be
material consideration for appreciation of evidence
and placing reliance on it. (Reliance on State of Goa
Vs Sanjay Thakaran AIR 2007 SC (Supp.) 61.
(vii) Arjun Marik Vs State of Bihar 1994(1) BLJR 688 SC.
29. ...... it is settled law that the only
circumstance of last seen will not complete the chain
of circumstances to record the finding that it is
consistent only with the hypothesis of the guilt of the
accused and, therefore, no conviction on that basis
alone can be founded.
(viii) Sahadevan vs. State of Tamil Nadu AIR 2012 SC 2435.
31. Even in the case of State of Karnataka v. M.V.
Mahesh [(2003) 3 SCC 353], this Court held that
merely being last seen together is not enough. What
has to be established in a case of this nature is definite
evidence to indicate that the deceased had been done
to death of which the respondent is or must be aware
as also proximate to the time of being last seen
together. No such clinching evidence is put forth.
(ix) The State of Maharashtra v Vasanta Sampat Dupare
(Criminal Confirmation Case No. 1/2012), the Division
Bench of Nagpur Bench.
(x) Shyamal Ghosh v State of West Bengal (2012) 7 SCC
646.
74. The reasonableness of time gap is therefore of
some significance. If the time gap is very large, then it
is not difficult but may not even be proper for the
court to infer that the accused had last seen alive with
the deceased and the former, thus, was responsible for
commission of offence. The purpose of applying these
principles, while keeping the time factor in mind, is to
enable the Court to examine that where the time of
last seen together and the time when the deceased
was found dead is short, it inevitably leads to the
inference that the accused person was responsible for
commission of the crime and the onus was on him to
explain how the death occurred. (underlining is ours).
(xi) In Laxman Naik v State of Orissa (1994) 3 SCC 381, the
accused had taken away his 7 year old niece, when he had
been to attend funeral ceremony they were seen together by
a witness in a Jungle and later appellant alone reached his
house. He made a false representation that the deceased
was at the house of her mother. On the next day, the dead
body of victim with bleeding injuries on the private part
was found in the Jungle. The Apex Court after considering
the circumstances held that, those found a complete chain
so as not to leave any reasonable ground for a conclusion
consistent with the hypothesis of innocence of the
appellant.
(xii) K. Sukumaran Vs State of Kerala 2000(10) SC 365. In
this case, there was evidence of last seen together but most
vital circumstance that, blood of blood group of the
deceased was found on the clothes of the accused was not
established.
40. Ld. Advocate Smt. Bharad relied on Tomaso Bruno Vs.
State of U. P. 2015 ALL MR (Cri) 837, where CCTV footage though
available to show presence of the accused in hotel was not produced,
the burden u/s 106 Evidence Act was not shifted to the accused. It is
not applicable to the facts of the present case.
41. The sum and substance of these rulings is that normally last
seen together with absence of explanation is weak type of evidence
but when the time gap between the incident of last seen together and
death of a person is so small that any other probability except
commission of murder by the accused is ruled out, it becomes a
strong piece of evidence and it needs a small corroboration.
42. On this point, the prosecution has examined PW6 Gayabai,
grand-mother of deceased Siddhi, PW8 Sheikh Bismilla, the Shop
Keeper and PW13 Kusum, maternal cousin of father of the deceased.
43. PW6 Gayabai is step mother of Siddhi's father PW1
Sambhaji. She stated that, Siddhi returned from school at about
12:00 noon and she and Riddhi were playing together in front of her
house. That time, accused no.1-Bhagwat and accused no.2-Rahul
came there. Siddhi was dancing behind them as Bhaiyya-Bhaiyya.
They offered her chocolate and then Siddhi went along with them.
As per birth certificate of Siddhi Exh. 183, her birth date was
29.09.2011. Thus, she was then aged 4 years, 3 months and 10 days
old. PW6 Gayabai stated that, Siddhi did not return and after two
hours, accused no. 1 Bhagwat came. She made inquiry with him and
he told her that Siddhi had gone to a shop and he would find her out.
Accused no. 1 thereafter left the spot and he did not return. In the
evening, PW1 Sambhaji came home. According to him, he came at
4:30 pm whereas PW6 Gayabai stated that, he returned at 6:00 p.m.
He stated that Gayabai informed him that Siddhi had gone along
with accused nos. 1 and 2. Gayabai did not state that she had
disclosed this fact to PW1 Sambhaji. In cross-examination of
Gayabai, it is brought on record that she has weak eyesight and
cannot see the things at long distance without spectacles. She was
using the spectacles for last two years (her evidence was recorded
about 9 months and 10 days after the incident). She claimed that,
she could see the things from long distance but when she was asked
to identify accused nos. 1 and 2, she wrongly identified accused no. 6
Kavinarayan as accused no. 1-Bhagwat and accused no. 4-Baban as
accused no.2-Rahul. It must be stated here that she was knowing
both the accused since their childhood. They were residing opposite
her house, hence there was no question of any identification of the
accused. The only issue was about her weak eyesight. In this regard,
we find that she must be at a long distance in the court from the
accused persons as the witness box is normally 20-25 ft. away from
the box of the accused. The ld. APP and ld. trial Judge ought to have
asked her to identify the accused from close distance but it was not
done. On the spot, she must be in close vicinity from Siddhi and
Riddhi. Therefore, there was no problem of identification at that
time. Besides, the accused had talked with Siddhi and she had heard
their voice. She could have identified them from voice as well.
44. If any doubt lingers about identification by PW6 Gayabai of
the accused, it is eliminated by the subsequent facts brought on
record. PW1 Sambhaji has stated that he had gone for work in the
morning at 06:30 and returned home at 4:30 p.m. He stated that, his
step mother Gayabai disclosed that Siddhi had gone along with
accused no. 1-Bhagwat and accused no. 2-Rahul as they offered her
chocolates and she did not return. He has thereafter taken search of
Siddhi and reached Police Station at Kalamnuri from Waranga
(Masai) at 06:30 p.m. He narrated the fact to PW19 PSI Premlata
Gomase about missing of Siddhi. PW19 has fully corroborated his
evidence on this point. She had then accompanied him to Waranga
(Masai) and nabbed accused no. 1-Bhagwat and accused no. 2-Rahul
from their houses. Pertinently, these facts are not disputed. In fact,
these facts are brought on record for the first time in the cross-
examination of PW1. Thus, both the accused were picked up and
were brought to the Police Station by 07:30 to 08:00 pm.
45. The evidence shows that there was absolutely no enmity
between PW1-Sambhaji and both the accused or their parents. PW1
Sambhaji had no reason to express suspicion against the accused if
PW6 Gayabai would not have disclosed their names to him as the
persons who had taken away Siddhi at 12:30 p.m., PW19 Premlata
Gomase nabbed both the accused from the village at about 07:00
p.m. and brought them to the Police Station at 08:00 p.m. As per the
information given by PW1 Sambhaji to PW19, evidence of PW6
Gayabai is strongly corroborated that she had seen both the accused
taking away Siddhi at noon time.
46. It was also argued that, PW6 Gayabai had stated that
Siddhi followed Ankush (para 7). We find that, it is a wrong
translation of Marathi evidence that Þfl/nh vadq'kP;k ikBhekxs ykxyh gksrhß. It
means, Siddhi was pursuing Ankush to meet with her demands. It is
well settled that, when there is difference between English version
and Marathi version, the Marathi shall prevail. Thus, there is
absolutely no material to show that Siddhi was following Ankush
who is her cousin.
47. PSI Gomase should have made Station Diary Entry about
the information given by PW1 expressing his suspicion against the
accused. She could not have recorded FIR as, by that time no offence
was disclosed. The prosecution ought to have produced the said
Station Diary Entry on record but in view of the admitted fact, the
non-production of Station Diary Entry does not affect the credibility
of evidence of PW6 Gayabai.
48. Then, next evidence is of PW8 Shaikh Bismillah. She is
having a small grocery shop at the other end of village. Her son was
looking after the shop, but in his absence, she was looking after the
shop. She stated that, about seven months before the date of
deposition, on a Thursday at noon time, when her son had gone for
lunch, she was attending the shop. That time, son of Parbati
Kshirsagar and son of Baban Kshirsagar came along with the
daughter of the complainant. She is resident of Waranga (Masai)
where the accused are residing from their childhood. Therefore,
though she was not knowing their names, she was knowing that they
are sons of accused no. 3 - Parbati and accused no. 4 - Baban. She
identified accused nos. 1 and 2 in the court as the same persons. She
stated that, she provided four chocolates worth Rs. 2/- to the
daughter of the complainant (informant) and thereafter the sons of
Parbati and Baban took away the daughter of the complainant Bandu
Kshirsagar. It is pertinent to note that, Bandu is nick name of PW1
Sambhaji and PW8 Shaikh Bismillah was knowing the nick name. It
is therefore not unnatural that PW8 provided four chocolates worth
Rs. 2/- to Siddhi without taking any money from her or from the
accused. Pertinently, one chocolate wrapper was found on the spot.
The police have subsequently taken samples of chocolates and those
matched with the wrapper found on the spot. PW2 Panch Kanthale
has proved recovery of chocolate wrapper (article 11) from the spot.
PW8 Shaikh Bismillah has identified the said wrapper as well as the
specimen chocolates article 12. PW5 has identified chocolate
wrappers (Articles 11 & 12) before the court.
49. It was too much to expect from her by the accused that she
should have issued receipt for selling the chocolates worth Rs. 2/-.
She admitted that, the shops of Ganga Maharaj and Pandurang Ingale
were located near Masai Mandir which was nearer to the house of
PW1 Sambhaji whereas her house was situated to the eastern side of
Masai temple.
50. The prosecution did not draw a topographic map but the
defence has drawn such map and it is marked Exh. 68. It is no doubt
true that there were shops nearer to the house of PW1 where the
accused could have purchased the chocolates but the main intention
of the accused was not to provide the chocolates but to take Siddhi
away from her house and therefore they must have selected a shop
farther away from the house of PW1 Sambhaji. Therefore, the fact
that the shop of PW8 is away from the house of PW1 does not raise
any suspicion. PW8 has admitted that she and her son had cultivated
land of PW1 Sambhaji on crop share basis but that cannot be a
ground for disbelieving her. She is an independent witness. She has
no enmity with the accused. Her evidence is not anyway shaken in
the cross-examination. She has disclosed facts to the police at the
earliest. We do not find any reason to disbelieve her. Hence, the
evidence of PW6 is corroborated by the evidence of PW8 Shaikh
Bismillah.
51. PW13 Kusum is maternal cousin of PW1 Sambhaji. She
stated that, on the date of incident, she was plucking cotton in the
field of Ashok Kare, which is situated opposite to the house where the
dead body was found. She stated that she had seen both the accused
proceeding to their house along with Siddhi and taking entry in the
house. It was at about 2:30 p.m. Then she had a lunch break. When
she was returning from lunch, PW6 told her that Siddhi was not
traceable. Gayabai told her that, both the accused nos. 1 and 2 had
taken Siddhi with them for providing Chocolates. She had disclosed
to Gayabai at 1:00 p.m. that both the accused had made entry in
their house along with Siddhi the dead body was discovered at about
09:45 p.m. After careful consideration of her evidence, we find, that
her evidence that she saw both the accused entering into the house
along with Siddhi is not reliable. She has stated that, they entered
their house whereas the houses of accused nos. 1 and 2 are different.
She is maternal cousin of PW1 Sambhaji. By noon only, she had
learnt that Siddhi was missing and all the villagers were making
hectic search of Siddhi. If she would have disclosed this fact that
both the accused had taken Siddhi to a particular house, PW1 and
other villagers would have searched the same house at the earliest
but the evidence on record shows that, the said house was not
searched upto 09:45 p.m. Evidence of PW20 PI Deshmukh shows
that, he made inquiry with the accused at the Police Station and from
the clues received, particular house was searched and the dead body
was found. Pertinently, the statements of PW13 Kusum was also
recorded after eight days. For these reasons, we find it unsafe to rely
on the evidence of PW13 Kusum particularly with regard to the entry
of both the accused along with Siddhi in the particular house. We,
therefore, discard the evidence of PW13 Kusum on this point.
However, from the evidence on record we are thoroughly satisfied
that accused nos. 1 and 2 had taken away Siddhi from the courtyard
in front of house of PW1 Sambhaji at about 12:30 to 01:00 p.m. and
they had taken Siddhi to the shop of PW8 Shaikh Bismillah and
purchased chocolates but PW8 did not take money for the same.
52. It also cannot be forgotten that, deceased Siddhi was a girl
aged four years and three months. PW6 Gayabai reposed faith in the
accused who were neighbours and Siddhi was allowed to go along
with them for purchasing chocolates. It was the duty of the accused
to leave Siddhi back to her house or deliver her custody to some
elderly relative of Siddhi. Siddhi all alone could not have gone away
from the accused. The accused could not have left her at some long
distance. They were supposed to drop her back to her house.
Considering these peculiar facts and small time gap, we find that the
evidence of last seen together is much stronger in the present
case to connect the accused with the crime. In fact, this evidence
of last seen together coupled with small time gap and absence of any
explanation by the accused is sufficient to show the involvement of
both the accused in the crime.
53. In present case, evidence of last seen together is well
corroborated by additional evidence of custodial death, injury to
penis of A1, blood spot on underwear of A2 & cotton fibers in nail
clippings of both accused similar to cotton found in mouth of victim
and found on spot.
CUSTODIAL DEATH :
54. Another circumstance relied upon by the prosecution is
custodial death. It is claimed that, the house where the dead body of
Siddhi was found in a manure bag belongs to accused no. 3-Parbati,
father of accused no. 1 Bhagwat. In this regard, there is evidence of
following witnesses.
(i) PW1 - Sambhaji.
(ii) PW2 - Ramakant, Spot Panch.
(iii) PW9 - Govind Bedre.
(iv) PW12-Gramsevak Ambhore.
(v) PW18-Sanjay, Photographer.
(vi) PW20 - Police Inspector - M. R. Deshmukh
55. Though PW12 Gramsevak Ambhore has produced house
property extracts of the house of accused no. 3 Parbati (Exh. 123)
and house of accused no. 4 Baban (Exh. 134) in response to letter
Exh. 122, these are not in respect of the disputed house. It is defence
of the accused that it is house of Namdeo Gopal Kshirsagar but there
is no documentary evidence in either way. The evidence shows that,
the villagers were searching for Siddhi in the village and Siddhi was
not found and PW20 P.I. M.R. Deshmukh deposed that both the
accused were brought to the Police Station by PSI Gomase (PW19) at
07:45 to 8:00 p.m. on suspicion. Both of them were frightened and
looked like Juveniles. The statements given by them before him are
definitely not admissible even though at that time they were not
accused (State of U.P. v Deoman Upadhyaya AIR 1960 SC 1125).
Suffice it to say that the information given by them which was not
recorded into writing was the clue received by PI Deshmukh. He
then came from Kalamnuri to Waranga (Masai) and along with PW1
Sambhaji and other villagers and police constables Raut and Mane,
r/o Waranga (Masai) who were on leave, but present in the village,
went in search of field and then house of Parbati, father of Bhagwat.
56. PW20 PI Deshmukh deposed that, at that time PW1
Sambhaji and several villagers had gathered there and had a strong
feeling. The mob was becoming aggressive. He assured the villagers
that he would properly investigate the crime but the mob was
uncontrollable. PW20 told PW1 Sambhaji to lodge FIR and the
villagers told him that the FIR would be lodged later and they told
him to immediately search the house of accused no. 1 Bhagwat from
his field. Then he along with PW1 Sambhaji and villagers and Police
Constable Mane and Raut, who are r/s Waranga (Masai) and were on
leave, decided to proceed to the spot. Considering the gravity of
crime, he gave intimation to Dy.S.P. Jatale. Press reporters Rahul
Mene and Govind Bedre were also with them and the villagers had
brought torches. Then they went to the field of accused no. 3-Parbati
and took search in the entire field. The girl was not found. Then all
of them proceeded to the house of Parbati. Police Patil Ambadas
Ingole showed him the house. Accused no. 5 - Panchafula, mother of
accused no. 1, was sitting in front of the house. The door was
latched from the outside. He disclosed his intention to search the
house and all the accused present there (except the appellants who
were in the police station) restrained him by stating that there was
nothing inside the house. Then he asked Panchafula - accused no. 5,
mother of accused no. 1 Bhagwat, to move aside and then Police Patil
unlatched the door. He, driver Shaikh Rahim, Rahul Mene, Govind
Bedre and Panchafula entered the house. There were three rooms.
The girl was not found in the first and second room. Govind Bedre
found one bag of fertilizer with soft substance inside, kept in a rack.
It was taken out and he gave call to driver Rahim and then PI
Deshmukh was called there. On opening the bag, the dead body of
the girl with folded hands and legs was found with her mouth gagged
by raw cotton. There was pink frock and black legging on her
person. The Police Patil identified the girl as Siddhi, the missing girl.
Then PW1 Sambhaji also identified it. When Panchafula saw that girl,
she had a drama of fainting. Then the mob was getting unruly and PI
Deshmukh was busy in providing safety to Panchafula. Then Police
Constable Mane and Raut stopped the entry of the public and Police
van was brought near the house and the girl in the bag was
immediately placed in the van. He apprehended that, the mob would
attack Panchafula and they would also attack and damage the house.
He made a call to Police Station and asked lady PSI Gomase to send
Police staff. Then Constables Pandit and Bele came there. Then
Panchafula and the dead body of Siddhi were kept in the Jeep and
Bele, Pandit and Police Patil locked the house to guard it until the
next order. He took Sambhaji along with him and went to hospital
and gave intimation to Dy.S.P. Jatale.
57. PW1 Sambhaji has deposed that, the Police had searched
the house of the accused and at 9:45 p.m. dead body of Siddhi kept
in a white coloured gunny bag was found. The body was taken out
and the injuries on the private parts were noted. The clothes of the
Siddhi were stained with blood and her mouth was gagged with
cotton. PW20 PI-Deshmukh obviously had no prior knowledge as to
whom the house was belonging to. He stated that PW1 Sambhaji
stated that the said house was occupied by accused no. 3 Parbati and
his family members. Accused no. 3-Parbati was having more than
one houses in the village. One of them is in front of house of PW1
Sambhaji. PW1 admitted that he was not knowing the house number
and the owner of the house. His cross shows that, the house was
shown by the villagers to the Police.
58. On the next day, the spot panchanama Exh. 62 was drawn
in presence of PW2 Ramakant Kanthale, who is from Hingoli. He
stated that, the Police Patil showed the spot in the said house. There
were household articles in scattered state and there was cotton cake
in one room. There was a chocolate wrapper on the spot and there
was disturbed flooring. One T.V. set in damaged condition was found
in the house. The spot panchanama drawn on 08.01.2016 at 10:30
a.m. is at Exh. 64. PW2 stated that, some cotton and wrapper of
chocolate of Éclair company were seized from the spot. He stated
that, Sarpanch was present at the time of spot panchanama. He
could not tell the house number.
59. In cross-examination, he denied that the articles seized
were not sealed on the spot. PW9 Govind Bedre was present at the
time of recovery of the dead body from the house. He had been to the
police station at 07:30 p.m. and he had accompanied his friend Rahul
who was Press reporter. He also deposed that all the villagers took
search of the girl in the field but she was not found. Then Police Patil
of the village showed the house of the accused Parbati Kshirsagar,
father of accused No. 1 Bhagwat. One woman was sitting outside the
house and door was latched. PI Deshmukh told her to get away and
allow him to search the house and then the search was conducted.
He stated that there were two wooden rafters kept on barrel and bag
of sand and through the gap of wooden rafters they noticed the bag
one containing sand and one white coloured gunny bag. On touch, he
noticed that it was having some soft material inside. Hence he called
Police driver Rahim and his friend Bele and PI Deshmukh also came
there and dead body with her mouth gagged with cotton was found
inside. She was dead and there was pink frock and black legging on
her person. He also stated that the villagers got annoyed and started
shouting. Hence PI Deshmukh was constrained to put the bag, PW1
Sambhaji and the lady Panchafula, who was sitting in front of house,
in the Jeep and immediately moved to the police Station. He stated
that the woman sitting there had stated that there was nothing in the
house and she was accused no. 5-Panchafula before the court. He
identified gunny bag (article 1), frock (article 2) and legging pant
(article 3). In cross, he stated that the spot panchanama was not
drawn immediately and he was not called by police. They were
present in the village for two hours. He stated that there was no
electricity available in the village. His evidence that, Panchafula told
PI Deshmukh that there was nothing in the house, seems to be an
improvement. PW12 Sandeep is a Gramsevak working at Waranga
(Masai) from August 2012. He received a letter dt. 14.01.2016 (Exh.
124) for extracts of Grampanchayat record of the house in question.
He provided property tax receipt (Exh. 123) executed in the name of
accused no.3 - Parbati, father of accused no. 1. The extract of house
of accused No. 4 - Baban, father of accused no. 2 is at Exh. 124. He
stated that, the house in question was in possession of Parbati but it
was not bearing any house number. He has also issued Domicile
Certificates of accused nos. 1 and 2 (Exh. 126 and 127) and other
accused showing that they were residing there since birth. In cross-
examination, he admitted that he was not resident of Waranga
(Masai) and he was not present in the village on the day of incident.
He admitted that, the house in question was not entered in the
property tax register of the Grampanchayat and therefore he was
unable to tell the name of real owner. But, he stated that, it was in
the possession of accused no. 3 - Parbati. PW15 Hanuman Bele,
Police Naik has visited the house on the spot on the call of PI
Deshmukh. Then as per instructions of PI, he had guarded the spot
till the next day upto 01:35 p.m. when the spot panchanama was
drawn. PW16 Umesh Sovitkar is a Revenue Circle Inspector, who has
drawn the sketch of the house and surrounding. The police had
shown him the spot. His sketch is at Exh. 142. It shows that, the
house in question is in front of a well with a fallow land and in front
of it there is a cement road of 15 ft. width. There is house of
Masarao Narayan to the southern side of the house as per map at
Exh. 143. PW18 Sanjay is a photographer. He has taken photographs
of the spot on the next day morning at the time of spot panchanama.
The photographs are at Exh. 153 to 159.
60. PW19 PSI Premlata Gomase has stated that, on that night
at 10:10 p.m. driver Shaikh Rahim told her that dead body of Siddhi
was found in the house of Bhagwat A1.
61. There is categoric evidence of PW1 Sambhaji, PW9 Govind
& PW20 PI Deshmukh that, as per the information taken from Police
Patil and Gram Panchayat, the said house was in possession of
accused no.3-Parbati, the father of accused no.1-Bhagwat.
62. There is corroborative evidence in the form of conduct of
accused no.5-Panchafula, mother of accused no.1 Bhagwat and of
other accused persons. PW1 Sambhaji has stated that accused nos. 3
to 7 had obstructed them from entering into the house. He stated
that, the villagers had shown the said house to the police.
Immediately after the incident on discovery of the dead body in the
house, according to PW20 PI Deshmukh, Panchafula made a drama
of fainting. There is evidence that the villagers were very angry and
annoyed and there was severe problem of security of Panchafula.
PW20 felt that Panchafula would be assaulted by the villagers and
hence he did not waste time in drawing any panchanama and called
police force, made arrangement for guarding the spot and
immediately brought the dead body and Panchafula in his Jeep. PW1
has stated that, along with him Panchaful was in the Jeep. He denied
that, he had given fist blow to Panchafula and that she had bleeding
injury on nose but, PW20 has admitted that Panchafula had bleeding
injury on nose (para 43). Due to security problem, he asked Gomase
madam to drop Panchafula at the house of social worker for her
security. In cross-examination of PI Deshmukh PW20, it was
suggested that Accused nos. 3 to 7 had not obstructed him but had
cooperated with him. PW19 Smt. Gomase, PSI, has corroborated him
and stated that Panchafula was taken to the house of social Worker
Suman Kadam. This part of evidence has not been seriously
challenged. PW9 Govind had also stated that Panchafula was sitting
in front of the house and told them that she was not knowing about
missing girl. His evidence that, Panchafula told Police Inspector that
there was nothing in the house seems to be omission but it has not
been proved. In fact it was suggested to PW1 that he had given fist
blow to Panchafula. Admittedly, PW1 and the villagers had no
previous enmity with Panchafula. There is circumstantial evidence to
show that the said house was in possession of the accused.
Considering the fact that Panchafula is a mother of accused no.1
Bhagwat, it is incriminating material circumstance suggesting that
the said house was in possession of accused no.3 and his family and
Panchafula was aware about the dead body inside the house.
63. It is pertinent to note here that, Dy.S.P. Prasanna More
PW21 has recorded statement of PW20 PI - M.R. Deshmukh. Mr
Girase, learned PP rightly relied on;
(i) Pradeep N Madgaonkar vs. State of Maharashtra (1995)
4 SCC 255.
(ii) M. Prabhulal v. The Assistant Director DRI (2003) 8 SCC
449.
(iii) Ravindra Shantram Sawan v. State of Maharashtra
(2002) 5 SCC 604.
(iv) Mohd. Hussain Babamiyan v. State of Maharashtra
(1994) Cri.L.J. 1020.
(v) Pannalal Damodar v. State of Maharashtra (1979) 4
SCC 526.
(vi) Rameshbhai Mohanbhai Koli v. State of Maharashtra
(2011) 11 SCC 111.
64. In above cases it has been held that when the panch
witnesses are not supporting, a police witness cannot be disbelieved
merely because he is a police.
65. Mrs. Bharad argued that there is no convincing evidence
that the house in which the dead body was found was of accused
no.3-Parbati, father of accused no.1 - Bhagwat. There is no
documentary evidence that, the house was registered in the Gram
Panchayat record but it does not mean that the possession of the said
house with accused no. 3-Parbati was not proved. PI - M.R.
Deshmukh along with all the villagers, Police Patil and Sarpanch had
made inquiry and had gone to the said house. Panchafula, mother of
accused no. 1 was sitting there and she and other accused nos. 3 to 7
had obstructed him from taking search of the said house. There is
categoric evidence of all the witnesses that the said house was in
possession of accused no. 3-Parbati. One must not forget that the
incident has taken place in a small village where each villager knows
each other. There is unanimous opinion of all the villagers and all
the witnesses examined that the said house was belonging to accused
no. 3- Parbati. The facts discussed herein above are sufficient to hold
that accused no. 3, father of accused no.1, was in possession of the
said house. No opinion can be expressed about the ownership of the
same.
66. There is one additional material to show that the said
house has connection with accused nos. 1 and 2. PW11 - Dr. Prafulla
Pathade has carried out the medical examination of both the accused
and had taken nail clippings. He handed over those samples in sealed
condition to the Police Constable. PW14 Police Constable Namdeo
Jadhav carried the muddemal articles along with covering letters
(Exh. 135 to 136) to CA Office at Aurangabad on 11.01.2016. He
delivered the articles and obtained the signatures on OC's. OC of the
covering letter Exh. 137 bears the acknowledgment signature and
stamp of CA office. The nail clippings of accused no. 1 are marked as
Exh. F-4 and nail clippings of accused nos. 2 are marked as Exh. G-4.
The Investigating Officer received CA reports Exh. 214 and Exh. 216.
Exh. D is the cotton seized from the spot. As per CA reports at Exh.
214 and Exh. 216, the nail clippings of accused no. 1 and accused no.
2 showed whitish fibre like material. The evidence of PW22 Vaibhav
Deshpande, Asst. Chemical Analyser shows that, the CA office had
received muddemal articles as per letter Exh. 135, 136 and 137 and
he noticed that as per microscopic examination, the fibre like
material found in the nail clippings of the accused nos. 1 and 2 were
similar to the fibre found in the cotton Exh. D. He has taken the
photographs of the microscopic examination and has produced them
before the court and reports to that effect are at Exh. 222 and 223.
He has proved his reports of nail clippings Exh. 214 and 216 and
reports of fibre quality Exh. 218 and 219 and resemblance report
Exh. 222 to 225. In cross-examination, he gave admission that he
was not firm that the cotton samples extracted by him was of the
same cotton. Nonetheless he had found similarity between the fibres
found in the nail clippings of accused nos. 1 and 2 and the raw cotton
seized from the spot and the cotton taken out by Medical Officer from
the mouth. Ld. Adv Mrs Bharat submitted that, accused nos. 1 and 2
are labourers and therefore finding of cotton in their nail clippings is
not incriminating circumstance but accused nos. 1 and 2 have not
given any explanation how similar cotton fibres were found in their
nail clippings.
67. Thus, when the dead body was found inside the house
possessed by accused no. 3 - Parbati, who is father of accused no. 1 -
Bhagwat, the burden was on accused no. 1 to explain how the said
body was found there. Both the accused have given no explanation
whatsoever in their statement u/s 313 Cr.P.C.
SEMEN OF ACCUSED NOS. 1 AND 2 ON THE FROCK OF VICTIM :
68. The evidence of PW3-Tulshiram, the inquest panch shows
that, the frock and legging on the person of Siddhi were having blood
stains. PW1 Sambhaji has identified frock article 2 and legging
article 3 as that of his daughter Siddhi. He has also stated that, her
clothes were stained with blood. PW9 Govind, who had seen the bag
containing dead body for the first time has stated that there was a
pink coloured frock and black coloured legging on the dead body.
PW10 Dr. Mahesh Gude has stated that, Gunny Bag article 1, frock
article no. 2 and legging article 3 were handed over to police. Those
clothes were seized from the Police Constable in presence of PW7
Ayaj Khan Pathan.
69. As per covering letter dt. 10.01.2016, muddemal articles
were duly received on 11.01.2016. Those were 10 sealed parcels in
connection with C.R. No. 9/2016. The prosecution has examined
Carrier-PW14. He stated that, on 10.01.2016 he received muddemal
articles together with a letter and he delivered them on 11.01.2016
at Forensic Science Laboratory, Aurangabad. The covering letters
dt.10.01.2016 and 13.01.2016 are at Exh. 136 and 137. However,
three sealed boxes were returned to him as the boxes were not
bearing the signatures of Medical Officer. The Medical Officer has
admitted that, inadvertently he forgot to sign the boxes but the
articles were sealed. PW14 has again taken those boxes with covering
letter dt. 13.01.2016 at Exh. 137 and delivered the same and
obtained acknowledgment with stamp and signature of CA Office and
Inward Clerk. Letters at Exh. 136 and 137 bear such seals. As per
CA report Exh. 110, frock and legging were having few blood stains
and the blood detected was of human. Besides, the frock (article A1)
was also having semen stains of the blood group A and AB. As per
CA report, Exh.109 and 107, the blood samples of accused nos. 1 and
2 were having blood groups of A and AB. The same blood group was
noticed in the semen stains on the frock of Siddhi.
70. The Medical Officer has not properly checked the frock and
legging of the deceased Siddhi at the time of PM. When there was
admittedly bleeding from vagina and anus, the clothes worn by
deceased Siddhi were bound to be stained with blood. When the
blood stains are shown in the inquest panchanama and in the CA
report, the casual observation of Medical Officer that the clothes were
not having blood stains cannot be believed. Besides, the frock was
having semen stains which could not have been easily detected by the
Medical Officer.
71. However, as per admissions of the witnesses those clothes
were not sealed.
72. On the point of sealing, Mrs Bharad relied on;
(i) Devender Pal Singh v Delhi [2002 (5)SCC 234 ]
(ii) Devraj Suvarna v State of Maharashtra 1994(4) Bom. C.R.
85.
73 As per evidence of PW20 PI Deshmukh & PW14 Carrier
Constable Namdeo, these clothes taken by PW14 to CA Office along
with covering letter Exh. 136. As per CA report Exh. 110, stains of
semen of blood group A & blood group AB (of accused nos. 1 and 2
respectively) were found on the frock. We agree with ld. Advocate
Mrs Bharad that frock was in unsealed condition in the custody of
police officers and in view of possibility of tampering, the CA report
showing semen stains on the frock cannot be relied upon.
INJURY ON PENIS OF ACCUSED NO.1-BHAGWAT:
74. The medical examination of the accused supports the
prosecution story about rape by the accused. As earlier discussed on
07.01.2016 at evening time only, both the accused were kept under
surveillance at the Police Station. Unfortunately, their arrest has been
shown quite late on 08.01.2016 at 08:00 p.m. PW4 Kanta has proved
arrest panchanama Exh. 72 and 73 which disclose the time of arrest
as 07:40 and 07:50 p.m. Thereafter, those were taken to PW11
Dr. Prafulla Pathade, Medical Rural Hospital, Kalamnuri for medical
examination. As per his evidence and certificates Exh. 118 and 119,
he examined accused nos. 1 and 2 at 10:20 and 10:40 p.m. He had
seen following injuries on the private parts of accused no. 1. No
smegma, not circumcised penis.
Oedema over glance of penis:
75. He opined that such Oedema can be produced by forceful
sexual intercourse. Similarly, he found no smegma on the private
parts of accused no. 2 Rahul and no injuries on his penis. Thereafter,
he has collected samples of pubic hair, semen and nail clippings of
both the accused and opined that both the accused were capable of
having sex. In para 9, he opined that the injuries noticed on the
penis of accused no. 1 must have been caused at the time of
penetration.
76. The absence of smegma indicates possibility of sexual
intercourse during last 24 hrs.
77. Dr. Pathade has recorded that the accused had taken bath
2-3 times but the evidence shows that both the accused were in
custody of the police only and they could not have taken bath since
they were nabbed by PW19 PSI Gomase from their house on
07.01.2016 at about 07:00 to 07:30 p.m.
BLOOD & SEMEN ON UNDERWEAR OF A2-RAHUL:
78. As per uncontroverted evidence, accused nos. 1 and 2 were
nabbed by PW19 PSI Smt. Gomase on 07.01.2016 from their house at
about 07:30 pm and since then they were at the police station only .
The admission of Medical Officer that, the accused told him that they
had taken bath three times is certainly unreliable. When the accused
were in the police custody they could not have taken bath. As per
evidence of PW4 Kanta, both the accused were arrested on
08.01.2016 at about 08:00 p.m. The arrest panchanamas are Exh. 72
& 73. Since the accused were picked up within short time after the
incident from their house, there is no possibility of change of their
clothes as deposed by PW11 Dr. Pathade. Evidence of PW4 Kanta
shows that, T-shirt, brown pant and under-pant of A1- Bhagwat were
seized under seizure panchanama Exh. 74. Whereas; black pant,
white shirt and underwear were seized from (A2-Rahul) vide
Panchanama Exh. 75. He has identified T-shirt, pant & underwear of
accused No. 1 Bhagwat (Articles 4, 5 & 6) whereas; shirt, pant and
underwear of A2 Rahul were identified as articles No. 7,8 & 9. There
is no material cross-examination of this witness to disbelieve him on
the point of seizure of clothes. As per evidence of PW14 Namdeo &
PW20 PI Deshmukh, these articles were forwarded on 11.01,.2016 to
CA office along with covering letter Exh. 136. The covering letter dt.
10.01.2016 Exh. 136 shows that the clothes of the deceased were
sealed with the labels and signatures of the panchas and the CA office
& were sent in 3 days and CA Office has received the request in
sealed condition. There is admission by PW14 that some muddemal
articles were not bearing seal and signature of Medical Officer but as
per evidence of PI Deshmukh, forwarding letter, the muddemal were
bearing seals and signatures of panch and request was received by CA
office in sealed condition. Besides, there is no suggestion to the
Investigating Officer that he had tampered with this muddemal
property. As per CA report Exh. 110, no blood or semen was detected
on the clothes of accused no.1. Similarly, no blood or semen was
detected on the shirt or pant of accused no.2 but, on the nicker of
accused no.2, blood of blood group A and semen were detected.
There is no specific evidence of panch about sealing of these articles.
However, absence of blood stains and semen stains on five out of six
clothes disclose that there was no tampering. The presence of semen
and blood of blood group of A on the underwear is therefore reliable
and trustworthy even in absence of sealing. The blood group of
saliva of deceased Siddhi is A (CA report Exh.109) whereas; (CA
report Exh. 109) blood group of accused no. 2 is AB. Presence of
semen and blood of blood group A on his nicker is material
incriminating circumstance against him to connect him with the
crime.
FAULTY INVESTIGATION :
79. We agree with the submissions of ld. Adv Smt Bharat that
the Investigating Officer has committed several mistakes as follows:
I. No station diary entry was taken when PW1 Sambhaji on
07.01.2016 at evening time expressed suspicion against
accused nos. 1 an 2 and thereafter PSI Smt. Gomase
accompanied him to Waranga. However, this fact has been
admitted. It is also admitted that both the accused were
brought from Waranga to Kalamnuri at 08:00 p.m. Hence,
this defect does not affect the prosecution case.
II. No inquest panchanama was drawn on the spot. The
evidence shows that, PI Deshmukh had not ascertained
about death of Siddhi from Medical Officer. In absence of
such proof, inquest could not have been done. Besides
there is evidence of PW9 Govind, PW11 Dr Pathade, PW19
Smt. Gomase, PW20 PI Deshmukh that the villagers were
very much disturbed and annoyed due to murder of a
village girl from their village. On discovery of the dead
body, the mob was getting out of control and there was
danger to the life of accused no. 5 Panchafula. Even the
mob had visited the hospital. PW20 PI Deshmukh was
justified in not drawing the inquest panchanama on the
spot. It is true that, as held in State of Maharashtra
through CBI Vs. Yakub Abdul Razak Memon & Ors.,
(2013) 13 SCC 1, this deviation in procedure with reasons
should have been shown by way of special report but it is
not done.
III. PI Deshmukh did not register the FIR of PW1 immediately
after discovery of dead body at 09:40 p.m. The FIR was
registered at 4:16 a.m. on 08.01.2016 but we find that the
prosecution is noway benefited by causing delay in
recording the FIR. Smt. Bharad relied on Kanhaiya Lal v
State of Rajasthan 2014(4) SCC 715 & Amar S/o.
Ramesh Lohkare v. The State of Maharashtra 2016 ALL
M.R. (Cri) 4699, that, unexplained delay in recording of
FIR creates suspicion about the prosecution case and raises
doubt about trustworthiness of the eye-witnesses. However,
we find that,in the present case, PW1 Sambhaji had already
intimated to the police his suspicion about accused nos. 1
and 2 at 07:00 p.m. and they were already nabbed at 07:30
p.m. PW1 Sambhaji did not disclose anything new in the
FIR. After the recovery of dead body of Siddhi, it was
taken to hospital where PW1 Sambhaji was present. There
was unruly mob in the hospital premises. PW1 Sambhaji
was under shock and grief. It was night time. The delay in
recording of FIR cannot be with mala fide intention. In such
situation, we find that, the delay in lodging the FIR does
not create any suspicion.
IV. The Investigating Officer has not arrested both the accused
till 08.01.2016 till 7:40 & 07:50 p.m. but they were already
taken into custody on 07.01.2016 at 07:30 pm and they
appeared like juvenile and the IO might be in two minds
whether they can be arrested or not. No doubt, as held in
State of Gujarat v. Kishanbhai etc. 2014(2) Bom.C.R.
(Cri) 167, he should have arrested them immediately and
taken them for medical examination but in the present
case, their late production before MO could have been
beneficial to the accused. Meantime, there could have
been smegma formation on their penis which could have
been adverse to the prosecution but it has not happened.
No smegma was found on their penises.
80. Dr. Pathade had examined accused no. 1 on 08.01.2016 at
10:00 p.m. He had found oedema over glance of penis of accused
no.1. He opined that, such oedema can be produced by forceful
sexual intercourse. He had examined both the accused and had
opined that both the were capable of having sexual intercourse. Thus,
delay in examination of the accused by Medical Officer has not
affected the prosecution case.
81. Premjibhai Bachubhai Khasiya Versus State of Gujarat
2009 CJ (Guj) 558.
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.
82. The Investigating Officer did not understand the purpose of
sending the samples for DNA. He should have collected blood
samples of PW1 Sambhaji and sent it with blood stained underwear
of accused no.2 for matching of DNA. Similarly, he should have sent
samples of semen of accused nos. 1 & 2 along with semen stains
found on the frock of deceased Siddhi. As per samples sent vide
letter Exh. 140, he has not done so. When no sperms were found in
vaginal swab, sending samples for DNA was of no use and CA report
would have been Nil. Therefore, non production of DNA report is not
significant.
83. The Investigating Officer has failed to collect documentary
evidence about the disputed house where the dead body was found.
We find that, there is ample oral evidence to show the possession of
the said house with accused no.3-Parbati, father of accused no.1
Bhagwat.
84. The Investigating Officer should have collected from
Medical Officer the raw cotton taken out from the mouth of Siddhi
and should have weighed it and should have shown its size or volume
but the evidence on record shows that there was sufficient cotton
stuffed in the mouth of deceased Siddhi which stopped the breathing
passage causing death of Siddhi due to suffocation.
85. In State of UP v Hari Mohan ther 2001 SC 142, there was
so much faulty investigation that the Apex Court observed that the IO
has not left a single stone unturned to help the accused. Still, the
Apex Court relied on other reliable material and held that the
defective investigation cannot be always a ground to discard the
prosecution story. In Hema v State Tr. Insp. Of Police, Madras
2013 Cr. L. J. 1011 SC, it is held, it is also settled law that for
certain defects in investigation, the accused cannot be acquitted. This
aspect has been considered in various decisions. In C. Muniappan
and others vs. State of Tamil Nadu, 2010 (9) SCC 567, the
following discussion and conclusion are relevant which are as
follows:-
"55. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any
lapse by the IO and whether due to such lapse any benefit
should be given to the accused. The law on this issue is well
settled that the defect in the investigation by itself cannot
be a ground for acquittal. If primacy is given to such
designed or negligent investigations or to the omissions or
lapses by perfunctory investigation, the faith and
confidence of the people in the criminal justice
administration would be eroded. Where there has been
negligence on the part of the investigating agency or
omissions, etc. which resulted in defective investigation,
there is a legal obligation on the part of the court to
examine the prosecution evidence dehors such lapses,
carefully, to find out whether the said evidence is reliable
or not and to what extent it is reliable and as to whether
such lapses affected the object of finding out the truth.
Therefore, the investigation is not the solitary area for
judicial scrutiny in a criminal trial. The conclusion of the
trial in the case cannot be allowed to depend solely on the
probity of investigation.
86. The defence of the accused that, PW1 was insisting
accused nos. 1 and 2 to join him in labour work and since their
parents were opposing the same, PW1 has falsely implicated
them is too flimsy and improbable to be accepted. We find that,
the prosecution witnesses have no enmity or reason to falsely
implicate the accused nos. 1 and 2.
87. It was argued that, assuming without admitting, if the
accused have committed crime, they would not have any intention to
cause death of the girl. The prosecution has not collected the cotton
taken out from the mouth of deceased Siddhi and no opinion of the
doctor has been obtained that the stuffing of that much cotton was
sufficient in the ordinary course to cause death of Siddhi. We
however find that both the accused had taken the small child aged
four years and four months to a lonely house of accused no. 4's father
and she was there subjected to rape and sodomy. The injury to penis
of accused no. 1 corroborates the evidence of last seen together and
custodial death. The injuries disclosed in post-mortem notes caused
to the deceased girl are obviously caused by the act of sexual
intercourse through vagina as well as unnatural intercourse through
anal canal. It was argued that, no semen was found in the vaginal
swab and anal canal of the deceased but the inquest panchanama and
PM notes disclose that there was bleeding from the vaginal orifice
and anal orifice. Such bleeding would definitely wash out any semen
fallen in the vagina and anal canal. The semen stains were found on
the underwear of accused no.2. In order to complete their unbridled
lust, the accused took precautions that the small child should not
raise shouts. They had gagged her mouth and there were injuries on
her face and inside the buccal cavity sowing the gagging of mouth.
Besides they had stuffed cotton in the mouth to such an extent that it
resulted into her death by suffocation. Doctor had opined that the
cotton from the mouth was taken out and was sent to CA. The act of
the accused in stuffing large amount of raw cotton in the mouth of a
girl aged four years and four months and then gagging her mouth
with cotton is an act imminently dangerous squarely falling in
clause 4 of Section 300 of IPC. It must be presumed that they
intended and knew the consequences of their act. Dr. Mahesh Gude
has specifically stated that the victim child died due to asphyxia due
to gagging due to packed raw cotton in her mouth. We find no
difficulty in holding that, act of both the accused was done in
furtherance of their common intention and it was imminently
dangerous, which has resulted into death of the poor child. The case
of the accused does not fall in any of the exceptions to Section 300 of
IPC. We therefore hold that it was a clear case of murder, rape and
sodomy by accused nos. 1 and 2.
88. After carefully considering the evidence on record in the
light of the arguments advanced and the rulings cited before us, we
find following clinching circumstances which prove that accused nos.
1 and 2 committed the offences of kidnapping a minor girl Siddhi
under the pretext of providing her chocolates and then gagged her
mouth, committed rape and unnatural intercourse whereby Siddhi
has died and thereafter both the accused caused disappearance of the
evidence by concealing dead body of deceased Siddhi in a bag of
fertilizer. The circumstances;
(i) The evidence of last seen together duly proved by
PW6 Gayabai and PW8-Shaikh Bismillah, supported
by indirect evidence of PW1 Sambhaji and PW19 PSI
Gomase. Siddhi was last seen in the company of
Accused nos. 1 and 2 at 12:30 to 01:00 p.m. and she
has died at around 03:00 to 04:00 p.m. She was
aged only 4 years and the accused were permitted to
take away her in trust and confidence and the time
gap between last seen together and death of Siddhi is
so small that it excludes any possibility of innocence
of the accused.
(ii) Custodial death: the fact that the dead body of Siddhi
was found in a gunny bag kept in the house occupied
by father of accused no. 1. At the time of search,
accused no. 5-Panchafula mother of accused no. 1
was present and she had opposed the entry of police
and panchas stating that there was nothing inside the
house.
(iii) Oedema over glance penis of accused no. 1 on
08.01.2016 at 10:30 p.m. in examination by PW11
Dr. Pathade. Absence of smegma on the penises of
accused nos. 1 and 2 on 08.01.2016 at 10:30 p.m.
whereas; meanwhile accused nos. 1 and 2 were in
the custody of police.
(iv) Though accused no. 2 had no injury, there was blood
found on his nicker which was of the blood group 'A'
whereas; his blood group is 'AB'. The blood group of
Siddhi was 'A'.
(v) Cotton fibers similar to the cotton seized from the
spot and cotton from mouth of victim found on nail
clippings of both the accused.
(vi) All the villagers felt that A1 & A2 must have
committed the rape, sodomy and murder when they
had no enmity with the accused. They were
aggressive and were likely to assault A1, A2 and their
relatives with no previous enmity.
89. In our opinion, the evidence of last seen together itself is
sufficient to connect the accused with the crime. Similarly, the
evidence of custodial death by itself is also sufficient. The other
circumstances are corroborative in nature and they provide strength
to the reliability of main evidence. We therefore hold that both the
accused have kidnapped deceased Siddhi from her house under the
pretext of providing her chocolate for the purpose of committing rape
on her and thereafter they have gagged her mouth and have
committed gang rape and act of unnatural intercourse with her. The
gagging of mouth by stuffing raw cotton in her mouth which was an
act imminently dangerous has resulted into her death and both the
accused thereby committed brutal murder of deceased Siddhi. We
therefore find that ld. trial Judge has properly appreciated evidence
and has arrived at correct findings as against accused nos. 1 and 2.
Hence, we confirm the finding of conviction u/s 366 and 302 IPC.
However, since Siddhi was aged four years and four months, instead
of conviction u/s 376 and 377 IPC, we hold both the accused guilty
for offences punishable u/s 5(g) and 5(i) r/w Section 6 for
committing penetrative sexual assault per vagina and for offence u/s
5(g) and 5(i) r/w S. 6 of POCSO Act for penetrative sexual assault
per anus.
RAREST OF RARE CASE:
90. Learned PP Shri. Girase & Learned advocate for the accused
Smt. Bharad have relied upon following rulings.
GENERAL PRINCIPLES :
(i) Machhi Singh V State of Punjab (1983) 3 SCC 470.
(ii) The following propositions emerge from the case of Bachan
Singh Vs. State of Punjab (1980) 2 SCC684:
(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances
of the 'offender' also require to be taken into
consideration alongwith the circumstances of the
'crime'.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be
imposed only when life imprisonment appears to be
an altogether inadequate punishment having regard
to the relevant circumstances of the crime, and
provided, and only provided the option to impose
sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances has to be accorded full
weightage and a just balance has to be struck
between the aggravating and the mitigating
circumstances before the option is exercised.
. In order to apply these guidelines inter-alia the following
questions may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate
and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender ?
91. In Bachan Singh's case, it is laid down that aggravating and
mitigating circumstances should be considered. Those are shown as
follows.
[i] Aggravating circumstances (para 202):
(a) Preplanned murder with extreme brutality.
(b) Exceptional depravity
(c) Murder of Military Officer or Police Officer or any
public officer on duty. In consequence of anything
done during discharge of duty.
(d) Murder of a person who had rendered assistance to
the Magistrate or a Police in discharging their duties.
[ii] Mitigating Circumstances (para 206):
(a) Commission of offence under the influence of extreme
mental or emotional disturbance.
(b) If the accused is young or old, he shall not be
sentenced to death.
(c) Probability of the accused not committing criminal
act of violence as would constitute a continuing
threat to the society.
(d) Probability of reformation or rehabilitation of the
accused.
(e) Murder committed in fact showing that accused
believed that he was morally justified in committing
the offence.
(f) Murder under duress or domination of another
person.
(g) Mentally defective condition of the accused impairing
capacity to appreciate criminality of his conduct.
[iii] In para 207, extreme youth has been recognized as a strong
ground for leniency.
92. In Shankar Khade v State of Maharashtra AIR 2013 SC
(Supp) 947, it is held as under:
27. In Sangeeta's case this Bench has held that
there is no question of balancing the above mentioned
circumstances to determine the question whether the
case falls into the rarest of rare cases category because
the consideration for both are distinct and unrelated.
In other words the "balancing test" is not the correct
test in deciding whether capital punishment be
awarded or not.
28. Aggravating Circumstances as pointed out
above, of course, are not exhaustive so also the
Mitigating Circumstances. In my considered view that
the tests that we have to apply, while awarding death
sentence, are "crime test", "criminal test" and the R-R
Test and not "balancing test". To award death
sentence, the "crime test" has to be fully satisfied, that
is 100% and "criminal test" 0%, that is no Mitigating
Circumstance favouring the accused. If there is any
circumstance favouring the accused, like lack of
intention to commit the crime, possibility of
reformation, young age of the accused, not a menace
to the society no previous track record etc., the
"criminal test" may favour the accused to avoid the
capital punishment. Even, if both the tests are satisfied
that is the aggravating circumstances to the fullest
extent and no mitigating circumstances favouring the
accused, still we have to apply finally the Rarest of
Rare Case test (R-R Test). R-R Test depends upon the
perception of the society that is "society centric" and
not "Judge centric" that is, whether the society will
approve the awarding of death sentence to certain
types of crimes or not. While applying that test, the
Court has to look into variety of factors like society's
abhorrence, extreme indignation and antipathy to
certain types of crimes like sexual assault and murder
of minor girls intellectually challenged, suffering from
physical disability, old and infirm women with those
disabilities etc.. Examples are only illustrative and not
exhaustive. Courts award death sentence since
situation demands so, due to constitutional
compulsion, reflected by the will of the people and not
the will of the judges.
93. Jashuba Bharatsinh Gohil v. State of Gujarat (1994 (4)
SCC 353).
In the matter of death sentence, the Courts are
required to answer new challenges and mould the
sentencing system to meet these challenges. The
object should be to protect the society and to deter the
criminal in achieving the avowed object to law by
imposing appropriate sentence. It is expected that the
Courts would operate he sentencing system so as to
impose such sentence which reflects the conscience of
the society and the sentencing process has to be stern
where it should be. Even though the principles were
indicated in the background of death sentence and life
sentence, the logic applies to all cases where
appropriate sentence is the issue.
94. Santosh Kumar Satishbhushan V State of Maharashtra.
Importance of right to life in the constitution is
highlighted and case based on statement of
approver was held to be fit for life imprisonment.
RAREST OF THE RARE : DEATH SENTENCE CONFIRMED.
(i) Machhi Singh V State of Punjab (1983) 3 SCC 470.
It was a case of 17 murders. Not applicable to the present
case.
(ii) Laxman Naik v State of Orissa (1994) 3 SCC 381.
The uncle had kidnapped his 7 year old helpless niece and
committed rape and cold blooded brutal murder.
Circumstance of last seen together and misrepresentation
by the accused were held sufficient to hold him guilty and
death sentence was confirmed. This is similar to the
present case.
(iii) Bantu Versus State of Uttar Pradesh (2008) 11 SCC 113.
A five year old helpless girl was raped and murdered by the
accused by inserting rod of 33 cm in vagina. His act was
held depraved to confirm the death sentence.
(iv) Shivaji Alhat v State of Maharashtra (2008) 15 SCC 269.
Here 9 year old helpless girl was raped and murdered by
strangulation with a rope. The argument that cases based
on circumstantial evidence should not result in death
sentence were rejected as illogical and the death sentence
was confirmed.
(v) Rajendra Wasnik v State of Maharashtra (2012) 4 SCC
37.
In this case, a married person aged 31 years lured a 3 year
old child and subjected her to heinous brutal rape and
murder. He had betrayed the trust and confidence. He had
taken bites on the chest of the victim girl. It was held as a
rarest of the rare case for confirming death sentence.
(vi) Vasanta Dupare v State of Maharashtra (Criminal
Confirmation Case No. 1/2012), the Division Bench of
Nagpur Bench.
Here a 47 year old man lured 4 year old girl and subjected
her to rape and murder. He was a history-sheeter. There
was no possibility of reformation. He was likely to remain
menace to the society. She was battered to death by
assaulting with two heavy stones. It was observed;
"The wanton lust, vicious appetite, depravity of senses,
mortgage of mind to the inferior endowments of nature, the
servility to the loathsome beast of passion and absolutely
unchained carnal desire have driven the appellant to commit
a crime which can bring in a "tsunami" of shock in the mind
of the collective, send a chill down the spine of the society,
destroy the civilised stems of the milieu and comatose the
marrows of sensitive polity".
. The death sentence was confirmed.
(vii) In State of Maharashtra Versus Shatrughna Baban
Meshram (Criminal Confirmation Case No. 01 of 2015),
the Division Bench of Nagpur Bench upheld the sentence
awarded for rape and murder of a four year old girl. It was
held in para 41 which is as under :
41. The Apex Court further observed that the
principle that when the offence is gruesome and was
committed in a calculated and diabolical manner, the age
of the accused not be a relevant factor.
"15. In our opinion, the measure of punishment in a given
case must depend upon the atrocity of the crime; the
conduct of the criminal and the defenceless and
unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the Courts respond to
the society's cry for justice against the criminals. Justice
demands that Courts should impose punishment befitting
the crime so that the Courts reflect public abhorrence of
the crime. The Courts must not only keep in view the
rights of the criminal but also the rights of the victim of
crime and the society at large while considering imposition
of appropriate punishment."
(viii) In The State of Maharashtra Versus Viran Gyanlal Rajput
(Confirmation Case No. 3 of 2014) decided by the Division
Bench of Principal Seat (Smt. V. K. Tahilramani & Smt. I. K.
Jain, JJ.) on 16.02.2015. It is a Rape and murder of 13½
year old girl by the accused aged 22 years. The accused
had acted in beastly manner and after quench of his
unbridled lust, the accused killed the victim so that she
should not expose him and her naked dead body was
thrown into a ditch. It resulted into death sentence and the
same has been confirmed.
(ix) In Purushottam Dashrath Borate & Anr. V. State of
Maharashtra (Criminal Appeal No. 1439 of 2013) decided
by Apex Court the then Hon'ble Chief Justice of India - H. L.
Dattu. The death sentence was awarded to the accused
who committed rape and murder of an associate in BPO in
Wipro Company, Pune.
(x) In D. K. Basu v. State of W.B. (2002) 1 SCC 351, custodial
torture and consequential death in custody was an offence
which fell in the category of the rarest of rare case.
(xi) In Dhananjoy Chatterjee v State of W.B. (1994) 2 SCC
220, the accused persons had entered into the house and
committed rape, murder and theft of a girl aged about 18
years. The Apex Court observed that, if the security guards
behave in this manner, who will guard the guards? The
offence was not only inhuman, and barbaric but it was a
totally ruthless crime of rape followed by cold blooded
murder and an affront to the human dignity of the society.
(xii) In Surja Ram v. State of Rajasthan [(1996) 6 SCC 271],
there was absence of provocation and the manner in which
the crime was committed was brutal.
(xiii) In Mukesh Vs State (NCT of Delhi) (Nirbhaya's Case)
2017(6) SCC 1, the Apex Court observed that, it was a case
of most savage and inhuman activities causing grave
injuries ultimately annihilating the life of rape victim. The
acts demonstrated mental perversion and inconceivable
brutality and attempted to destroy all evidence. In the
context, the Apex Court held balancing of aggravating and
mitigating circumstance factors like poverty, young age,
dependents, absence of criminal antecedents, post-crime
remorse and good conduct in prison cannot be taken as
mitigating circumstances to take the case out of the
category of "rarest of rare cases". Incident like gang rape
creates ripple in conscience of society and serious doubts
are raised whether we live in a civilized society. The court
should respond to society's cry for justice against crime.
The accused in this case were awarded with death
sentence.
(xiv) State of Maharashtra Vs Ravi Ghumare (Confirmation
Case No. 1 of 2015) decided by the Aurangabad Bench of
Bombay High Court on 20.01.2016 (Coram : A. V. Nirgude
& Indira K. Jain, JJ.) (Confirmation Case No.1/2015). This
was a case where two year old child lured by offering
chocolates was subjected to rape and assault which resulted
into death by asphyxia due to throttling by an accused
person aged 25 years. After considering the various
judgment of the supreme court, it was held that it was a fit
case for death sentence.
CASES OF LIFE IMPRISONMENT :
(i) In Bantu Singh v State of M.P. AIR 2002 SC 70, there was
a rape and murder by gagging mouth. Though it was held
as a murder, it was held that, it may not be intentional and
therefore the death sentence was reduced to imprisonment
for life. The facts in the present case are similar. Though
the accused can be held guilty u/s 302 r/w 34 on account
of doing an act imminently dangerous, it is not clear
whether they intended to cause death of Siddhi or not.
(ii) In Amit v State of U.P., AIR 2012 SC 1433, the accused
was aged 28 years and a neighbour with no previous
criminal record, it was held that the possibility of
reformation was not ruled out and hence death sentence
was not warranted.
(iii) Mohinder Singh V State of Punjab 2013 CJ (SC) 48. The
accused was sentenced to death as he had committed rape
on his daughter and after undergoing sentence of 12 years,
when he returned he committed murder of his wife before
his another daughter. The Apex Court held that not only
the brutality of the crime but also the circumstances
surrounding the offender, both mitigating and aggravating
should be considered and in the facts of the said case, it
was observed that the offender deserved a chance for
reformation. Hence, the sentence was reduced to
imprisonment for life.
(iv) Vashram Narshibhai Rajpara V State of Gujarat (2002)
9 SCC 168.
Constant nagging by family was treated as mitigating fact
as it can mentally imbalance the accused. Intensity of
bitterness and the escalation of simmering thoughts into a
thirst for revenge or retaliation were also considered to be a
relevant factor.
(v) In State of Maharashtra Versus Rakesh Manohar Kamble
@ Niraj Ramesh Wakekar 2014(2) Bom. C. R. (Cri.) 664.
The accused was a terror. He made forcible entry in house
of victim with threats to her mother and committed rape,
murder of a 19 year old girl. It was held, as very serious
offence but just short of rarest of rare to award life
imprisonment of minimum of 30 years without remission.
(vi) In State of Maharashtra Versus Nisar Ramzan Sayyed
(2017) 5 SCC 673, Nissar had poured kerosene on person
of his wife Summayya and set her on fire. Ld. Sessions
Judge, Shrirampur convicted the accused and sentenced to
capital punishment. The High Court set aside the
conviction and acquitted the accused. The Apex Court
reversed the judgment and restored conviction. While
dealing with the sentence, it was observed:
17. The next question, however, is as to whether in a
case of this nature death sentence should be awarded. A life
is at stake subject to human error and discrepancies and
therefore the doctrine of 'rarest of rare cases', which is not
res integra in awarding the death penalty, shall be applied
while considering quantum of sentence in the present case.
Not so far but too recently, the Law Commission of India
has submitted its Report No.262 titled "The Death Penalty"
after the reference was made from this Court to study the
issue of death penalty in India to "allow for an up-to-date
and informed discussion and debate on this subject". We
have noticed that the Law Commission of India has
recommended the abolition of death penalty for all the
crimes other than terrorism related offences and waging
war (offences affecting National Security). Today when
capital punishment has become a distinctive feature of
death penalty apparatus in India which somehow breaches
the reformative theory of punishment under criminal law,
we are not inclined to award the same in the peculiar facts
and circumstances of the present case. Therefore,
confinement till natural life of the respondent-accused shall
fulfil the requisite criteria of punishment in peculiar facts
and circumstances of the present case.
95. After considering the above judgments on the point of
punishment, we have no doubt that the act of the accused nos. 1 and
2 committed in furtherance of their common intention is strongly
condemnable. The aggravating circumstances are that a four year old
girl was subjected to rape, sodomy and murder. She was hapless
helpless, defenceless victim. Normally, in such case, death sentence
is awarded. However, in this case following are mitigating
circumstances.
i. Both the accused are between 18 and 19 years. Accused
no. 1 is aged 18 years and 7 days only. Accused no. 2 is
aged 19 years and 4 months.
ii. Considering the age, there cannot be any criminal record
against the accused. There is no material brought by
prosecution showing criminal record of both the accused.
iii. In the present case, thought the circumstances disclose that
both the accused in furtherance of their common intention
subjected a four year old girl to rape, sodomy and murder,
there is no direct material showing the parts played by
accused no. 1 and accused no. 2 individually. It is not
known who has gagged her mouth by stuffing raw cotton.
96. In Bantu Singh v State of M.P. AIR 2002 SC 70, there was
a rape and murder by gagging mouth. Though it was held as a
murder, it was held that, it may not be intentional and therefore the
death sentence was reduced to imprisonment for life. The facts in the
present case are similar. Though the accused can be held guilty u/s
302 on account of doing an act imminently dangerous, it is not clear
whether they intended to cause death of Siddhi or not. The offence
of murder in this case is not diabolical though rape & sodomy are
brutal. Extreme young age is recognized as mitigating circumstance.
Hence we hold that this is not the rarest of rare case. However,
considering the gravity and seriousness of the offences, we feel it
necessary to hold that the imprisonment for life should not be less
than 30 years without remission.
97. Before parting with the final order, we must appreciate the
efforts taken by ld. Advocate Mrs. Bharad for the appellants/accused
and learned Public Prosecutor - Mr A. B. Girase. They have
thoroughly studied the matter and were fully prepared factually as
well as on law points and have provided substantial assistance in
deciding the matter on merits. We appreciate their preparations and
arguments on all points in very efficient manner.
98. We pass the following order.
ORDER
(i) The request for confirmation of death sentence is
turned down.
(ii) Criminal Appeal No. 180/2017 is partly allowed. The
sentence of both the accused for offence u/s 363 r/w
34 IPC is set aside on technical ground. The conviction
u/s 376(2)(i) r/w 34 IPC is altered to conviction
u/s 5(g) & 5(i) r/w Section 6 of Prevention of
Children from Sexual Offences Act and conviction u/s
377/34 is also converted into Section 5(g) & 5(i) r/w
Section 6 of POCSO Act. However, the sentences
under those sections are maintained as they are. The
conviction u/s 302 r/w 34 IPC is maintained,
however, the sentence of capital punishment is set
aside and both the accused are sentenced to suffer
imprisonment for life which shall not be less than 30
years without remission. Conviction u/s 366 r/w 34 &
201 r/w 34 IPC are maintained as they are.
(iii) All the sentences shall run concurrently.
(iv) Both the accused are in custody from 08.01.2016 till
date and they shall be entitled for set off as per rules.
(v) In view of disposal of Criminal Appeal No. 180 of
2017, nothing survives for consideration in Criminal
Application No. 2289 of 2017 and same stands
disposed of.
[ A. M. DHAVALE ] [ S. S. SHINDE ]
JUDGE JUDGE
sgp
