Bombay High Court
Vijay Babasaheb Nanavare vs The State Of Maharashtra on 13 January, 2018
Bench: B.R. Gavai
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 891 of 2010.
ALONG WITH
CRIMINAL APPLICATION No. 1290 of 2012.
IN
CRIMINAL APPEAL No. 891 of 2010.
Vijay Babasaheb Nanavare, ..Appellant.
age 30 years, resident of MIG Building No.21,
Thane at present Flat No.14, Room No.12, 6 th
Scheme, Nashik taluka and District Nashik, r/o
Padmapur, taluka Patoda, District Beed (at
present in Central Prison, Nashik Road, Nashik.
Vs.
The State of Maharashtra, (Through the .. Respondent.
Inspector of Police, Satpur P.S.Taluka and District
Nashik.
WITH
CRIMINAL APPEAL No. 448 of 2011
The State of Maharashtra,
(Through the Inspector of
Police, Satpur Police Station,
Taluka and District Nashik.
Vs. ..Appellant.
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Vijay Babasaheb Nanavare,
age 30 years, resident of MIG Building
No.21, Thane at present Flat No.14,
Room No.12, 6th Scheme, Nashik taluka
and District Nashik, r/o Padmapur,
taluka Patoda, District Beed (at present ..Respondent
in Central Prison, Nashik Road, Nashik.
Mr. Abhaykumar Apte, Advocate appointed by Legal Aid
Committee for the appellant in Cr.Appeal No.891/2010 and
Cr.Appln.No.1290/2012 and for Respondent in Cr. Appeal No.
448/2011.
Mr. H.J. Dedhia, APP for Respondent/State in Cr. Appeal No. 891
of 2010 and for the Appellant/State in Cr.Appeal No.448 of 2011.
CORAM:- B.R. GAVAI & SMT. BHARATI H. DANGRE, JJ.
th
Date :- 13 January, 2018.
JUDGMENT (PER: Smt. BHARATI, H. DANGRE,J):-
1 This present appeal, preferred by the original accused
(referred as "appellant"), arises out of a judgment dated 15/10/2010
passed by the learned Additional Sessions Judge-2 Nashik in Sessions
Case No. 88 of 2006, whereby the appellant is convicted and
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sentenced for kidnapping minor girl, aged about ten years, with intent
to commit rape on her and for murdering said girl and thereby
committing offences punishable under sections 366-A, 376(2) (f), 302
of the Indian Penal Code. On conviction under Section 302 of IPC, the
appellant is sentenced to suffer imprisonment for life and to pay a fine
of Rs.1000/-. For conviction of offences under Section 366-A and 376
(2) of IPC, the appellant is sentenced to suffer RI for ten years and to
pay fine of Rs.1000/-on each count. In default to pay fine imposed
against the appellant as aforesaid, he is directed to suffer Simple
Imprisonment (SI) for three months. All the sentences have been
directed to be run concurrently.
2 The case of prosecution in nut-shell is reproduced below:-
On 23/2/2006 a dead body of one girl of tender age was found
lying in the field of one Shri. Darade. At that time, one Shri Sanjay
Nikam visited the spot and identified the dead body as of his daughter
namely Swapna @ Rinku. It is the case of prosecution that a missing
complaint was filed by one Sanjay Nikam on 22/2/2006. Sanjay
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Gangadhar Nikam who is examined as PW 17 residing at Shivpuri
Chowk, Nashik stated that he has two daughters namely Sonal and
Rinku. According to the prosecution, the unfortunate incident took
place on 22/2/2006 when that day, at 8:30 p.m. PW. No.17 had gone
to see Ramlila along with deceased Rinku. At that time, daughter
Rinku said to him that she would bring her younger sister Sonal there
and she left the place. At 11:00 p.m. PW No.17 Sanjay Nikam went to
his house and he found that Rinku had not returned home and
therefore he took search of Rinku till about 12:30 a.m. or 1:00 a.m.
and thereafter he went to police station, Satpur and lodged missing
report. He also handed over photograph of Rinku to the police.
Thereupon, Police started investigation. On 23/2/2006 Nitin Metkar
(PW 19) who was working as Senior Police Inspector at Satpur Police
Station, at 9:30 to 10:00 a.m. was informed by one Vitthal Bhandure
that a dead body of a small girl was lying in the field of Darade and
he, Dalvi and other policemen had gone to the spot and had seen that
a dead body of a girl was lying in the wheat crop and her Salwar and
nicker were lying near the dead body. There were stains of mud on
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both sides of Salwar. Blood stains were also found on the plants of
wheat which were fallen down. The mud nearby was also blood
stained. Mouth of the girl was also filled with mud. By sending
wireless message to the Control Room, he made inquiry as to
whether any girl was missing and he had asked Shivaji Dalvi, Police
Inspector, In-charge of Satpur Police Station to prepare inquest
panchnama and called a photographer and dog-squad to the spot.
Thereafter, Accidental Death (A.D.) No.14/2006 was registered with
Police Station and when the inquest was going on, a person, namely,
Sanjay Nikam (PW 17) came to the spot and identified the dead body
of his daughter Swapna @ Rinku. The Investigating Machinery was set
in motion and the dead body was sent for postmortem. The search of
the accused person was initiated.
On 25/3/2006 at about 3:00 a.m. Ramesh Patil, Senior
Police Inspector of Ambad Police Station was on patroling duty. When
his vehicle reached near Atul Dairy, Ambad Link Road, he was stopped
by ten to eleven women. Out of those women, Pranpati Kanojiya
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complained that when she and her grand-daughter Puja were sleeping
on the Ota/plinth of her house at Shivpuri Chowk, somebody had
taken away Puja. At that time, one Vitthal Wani told that he had seen
one person taking a girl on his shoulder. Ramesh Patil started taking
search and near More Nala, Ambad Link Road the accused was found
with said Puja. The accused and Puja were taken to Pranpati Kanojiya
and she identified Puja. In respect of this Cr. No.111/2006 was
registered against the accused with Ambad Police Station.
3 During the course of investigation of Cr.No.111/2006, it
was transpired that on 22/2/2006 the accused had kidnapped
deceased Swapna @ Rinku, committed rape on her and thereafter put
her to death. Statement of accused was recorded under Section 27 of
the Evidence Act. During investigation, the accused revealed the spot
where he committed rape and murdered the victim girl. During the
course of investigation, blue colour bicycle used by the accused during
the course of commission of crime, pants, shirt, a pair of chappal and
under-pant were recovered from the accused. On 27/3/2006 Ramesh
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Patil sent all papers and muddemal to Satpur Police Station. The
accused was sent for medical examination to Medical Officer, District
Hospital, Nashik on 28/3/2006. The samples of semen, blood, nail
and pubic hair of the accused were obtained and were sent to Forensic
Science Laboratory with his clothes and plastic covers inserted on both
the sides of handle of bicycle on which mud was found.
4 After reading the news in respect of arrest of this accused
published in Newspaper, witnesses Pravin Nikumbh, Maruti Fad and
Arun Dalvi went to police Station and stated that they had seen the
accused while taking the deceased. Their statements were recorded.
Two other witnesses also claimed that on 22/2/2006 at 11:00 p.m. the
accused had come to their liquor shop to consume liquor with bicycle
and having mud stains on his clothes. Their statements were also
recorded. The Test Identification Parade (T.I.Parade) of the accused
was held and after collecting evidence, charge-sheet came to be filed
against accused Vijay in the Court of the learned Judicial Magistrate,
First Class, Nashik for offences punishable under Sections 366-A, 376
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and 302 of IPC. The offences under Section 376 and 302 of IPC being
triable by Court of Session, the learned JMFC committed the case to
Court of Session, Nasik (the "Trial Court" for short).
5 The learned Trial Judge after considering the papers of
investigation, framed charges against the appellant/accused vide
Exh.10. The accused was charged with an offences punishable under
Sections 363, 366-A of IPC along with Section 376 of IPC for
committing forcible rape on the deceased Swapna @ Rinku and
thereafter committing her murder, intentionally and knowingly
causing her death by inserting mud in her mouth and throttling her
and thereby committing the offence under Section 302 of IPC. The
said charge was read over and explained to the accused in Marathi.
The appellant pleaded not guilty and claimed to be tried. His defence
was that of total denial.
6 In order to bring home the guilt of the accused, the
prosecution has examined twenty witnesses. The case of the
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prosecution is based on circumstantial evidence and in order to link
the circumstances in a chain, the prosecution examined the witnesses
to establish that the deceased was last seen alive in the company of
the accused and thereafter she was found dead. Sanjay Nikam, father
of deceased was examined as PW 17 who deposed that, on the day of
incident at about 8:30 p.m. when he went to see Ramlila programme,
his daughter Rinku came there and she caught hold his hand. She said
to him that she would bring her younger sister and left and she
thereafter did not come back. From that point of time, Rinku was
found to be missing and could not be found though extensively
searched which resulted in he approaching the Police Station and
lodging a missing complaint. He also tendered photograph of his
daughter to the Police Station.
7 The prosecution examined PW No.5 Shri Pravin
Pandharinath Nikumbh who had gone to see Ramlila being performed
along with his friend Maruti Fad (PW No.7). The said witness has
deposed before the Court that when he had been to Shivpuri Chowk to
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watch Ramlila programme and when the programme was going on, he
saw one person wandering on bicycle. PW No.5 deposed that said
person spoke to one girl and thereafter took that girl on his bicycle. He
further stated that said person had come near them. After seeing the
programme of Ramlila, the witness had gone home. He stated that
when he read in the newspaper that one person had committed rape
on the minor girl, after some days he went to the police station and
when he was shown the photograph of the girl he had identified the
said girl to be the one when he had seen with the accused person. He
identified the accused sitting in the dock as the one who had
accompanied the girl. He also identified the bicycle on which the
accused had taken away girl. The testimony of this witness is
corroborated by PW 7 Maruti Fad who had deposed, that on
22/2/2006 he along with his friend (PW 5) had gone to watch the
programme of Ramlila at Shivpuri Chowk which was situated at the
distance of 15 to 20 minutes from his house. He deposed that a boy
was standing by their side with a bicycle. A small girl was with him.
Thereafter, that boy and girl had left that place. They had left at about
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10:00 p.m. He had not seen in which direction they had gone. PW 7
Maruti Fad has categorically stated that the boy was standing at the
distance of five feet from him and he was there for about 5 to 10
minutes and he can identify the boy, if shown to him. PW 7 has
identified the accused sitting in the dock as the same boy though he
expressed his inability to identify the bicycle. This witness was also
called for the identification parade, conducted by the police in Central
Jail after one month and he stated that he had identified the accused
from 5 to 6 persons. This witness has been put to extensive cross-
examination. In cross-examination, he was not able to give the details
of the clothes on the person of boy and girl and he had stated that he
had not seen the girl carefully. The testimony of this witness was also
attempted to be brought in disrepute on the ground that an offence
was registered against him for an attempt to commit murder of the
Councilor Shri Thakare and he was in jail for four months.
8 In order to further establish the chain of events, the
prosecution has examined PW 6 Arun Dalvi, an auto-rickshaw driver
and who had deposed before the Court on the day of incident at about
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10:15 p.m., he left the passengers at Ambad-Link Road and was
coming back to Trimurti Chowk, Nashik and while proceeding to Keval
Park, the wheel of his auto-rickshaw got punctured. At that time, he
was changing the stepney (spare wheel), he saw one person going on
bicycle from city to Ambad-Link road. He deposed before the Court
that at that time one auto-rickshaw was coming from Ambad-Link
road and approaching to CIDCO, the bicycle rider applied brake and
he came near his auto-rickshaw and he lost his balance on the bicycle.
Witness deposed that a brief conversation took place within him and
the person on the bicycle apologized to him. This witness deposed
that he noticed that one girl was sitting on the backside of the bicycle
and she was crying and saying "Mala Pappa Kade Jayche Ahe" ("मला
पपपा कडे जायचे आहे") and the bicycle rider was saying her "Apan
Pappa Kade Chalalo Ahe" (आपण पापाकडे चाललो आहे.). This witness then
deposed that bicycle rider along with that girl proceeded to Ambad
Link road. He stated that he could identify the said bicycle rider, if
shown to him and he identified the accused sitting in the dock to be
the same person. He also stated that he would identify the bicycle if
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shown to him. However, he was unable to identify said bicycle. The
said witness was also cross-examined at length and he was not able to
disclose the details about the clothes worn by the accused and the girl
but he mentioned that the bicycle rider was thin and heighted. The
next witness examined by the prosecution to establish the chain of
events is PW 9 Mohan Dafedar who was working as a Manager in a
country liquor shop situated at village Ambad. He deposed before the
Court that on the date of incident at about 11:00 to 11:15 p.m., he
along with one Shankar Khamkar (PW 10) was present in the shop
and one person came there asking liquor worth Rs.10/-. This witness
stated that there were stains of mud on the person of that person. He
consumed liquor and left. This witness stated that the person was
wearing a white shirt and he was in the shop for about 2 to 5 minutes.
Though he was unable to give complexion of said person, he stated
that he can identify him if shown to him. He identified the accused as
the person who had come to the shop by pointing out to the accused
who was present in the dock. He also stated before the Court that he
was called in Central Jail and he had identified the person who had
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come to his shop to consume liquor.
His version is corroborated by PW 10 Shankar Khamkar
who has stated that the person who came in the liquor shop on bicycle
is the same person who was asking liquor for Rs.10/-. He deposed
before the Court that since he noticed mud on his shirt and pant he
asked him as to why there was mud on his clothes and he answered
that he was in tension and nothing should be asked from him. This
witness deposed that he consumed liquor and left on his bicycle. This
witness had identified the accused sitting in the Court by pointing out
finger towards him.
9 Through the above witnesses, the prosecution has
attempted to establish its case that the deceased who had been to
watch Ramlila programme at Shivpuri Chowk, went missing from the
said spot at around 8:30 p.m. PW No.4 had seen the deceased girl
along with the accused who was wandering at the place of Ramlila on
his bicycle and he was seen talking to the said girl and later on she
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was taken by him on his bicycle. He is corroborated by PW No.7 who
had seen the deceased in the company of the accused and leaving the
place of Ramlila at around 10:00 p.m. PW No.9 and PW No.10 had
seen the deceased person who had approached the liquor shop on his
bicycle wearing a white shirt which was stained with mud at about
11:00 p.m. The said accused person was all alone and he consumed
liquor. On the basis of evidence of these witnesses, the prosecution has
aimed to establish that the deceased was last seen in the company of
the accused at Ramlila event and while leaving the place, he took
deceased until and then when the accused approached the liquor
shop, he was all alone and the deceased girl was not with him.
10 The prosecution then relies upon the evidence of PW 3
Sandip Bhandure who had been to the wheat field of one Shri.
Darade on 23/2/2006 and he saw the dead body of a girl lying in the
said field. He stated that the police were present at the said spot and
there was a blue colour Salwar which was identified by him. Further
evidence of the prosecution is in the form of deposition of PW 1
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Shivaji Dalvi who is Police Inspector of Satpur Police Station and he
was informed by one Vithal Savliram Bhandure at about 9:00 a.m.
that in the agriculture land of one Darade dead body of one girl aged
about eight to ten years is lying. On receipt of such information, he
visited the spot situated in Satpur locality which was wheat field and
found the body lying there. On reaching the spot he prepared the
spot panchnama, also carried inquest panchnama with the assistance
of panchas and on coming to police station he lodged the complaint to
the effect that the girl had become victim to sexual assault.
11 The prosecution, then, relied upon the testimony of PW
No. 16, Dr. Dipti Vaida, Medical Officer, Civil Hospital Nashik, who
carried out the postmortem of the deceased along with one Dr. Aher.
The said witness had deposed that the body brought for postmortem
was of a girl aged about 8 to 10 years and she was wearing a blue
colour Kurta which had mud stains. The said witness deposed that she
found the following external injuries on the body of deceased.
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(i) External genital was swollen and blood stains,
(ii) There were injuries over the neck. There was
bruising mark over the neck just below mandible
with nail marks on both sides of trachea. The finger
impression contusions,
(iii) There was abrasion on left lateral vail 1 x 1 cm.
(iv) There was evidence of vaginal bleeding with
tear extending upto anus with anus sphincter lost.
The witness has further deposed that the age of the above
injuries was within 12 to 15 hours and they were ante-mortem. The
doctors opined cause of death of the deceased as to "asphyxia due to
throttling". The prosecution has therefore established that the
deceased was subjected to sexual assault and then done to death. The
age of injuries found on the body of deceased was within 12 to 15
hours old. The postmortem of the dead body was started at around
2:30 p.m. and was completed at 3:30 p.m. on 23/2/2006. The said
witness gave details of the injuries to the external genital of the dead
body which was described as follows : (i) External genital was swollen
and blood stains were found and (ii) There was evidence of vaginal
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bleeding with tear extending upto anus with anus sphincter lost. The
said witness / doctor had also revealed in cross-examination that
there was some semi-digested food in the stomach of the deceased and
deceased might have taken last meal prior to death within 4 to 6
hours. The doctor also stated that skin of the deceased was mud
stained and blood stained and Rigor mortis was in developing stage.
She had also deposed that there was mud in the mouth and blood was
oozing from the nose of the deceased. Said witness proved P.M.notes
at Exh.79. The said P.M. notes mentioned about injury in column no.17
to be fresh about 12-15 hours. Stomach and its contents revealed
exact cause of death and this is perfectly in the tune with the evidence
of the father of deceased (PW 17) who had stated that he had meal
with the deceased at around 8:00 to 8:30 p.m. and then went for
watching Ramlila.
Thus, the prosecution has brought on record the evidence in the
form of PW 17, PW 6, PW 7, PW 9 and PW 10 to establish the last seen
theory and also establish that the time gap between the deceased last
seen alive with the accused and the time when her dead body was
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found, that would lead to an inference and conclusion in the form that
it was only the deceased who had an opportunity to murder the
deceased.
12 Through the aforesaid prosecution witnesses, the
prosecution has established and proved the following circumstances:-
(a) The deceased Swapna @ Rinku, resident of
Shivpuri Chowk, Nashik had been to watch the
programme of Ramlila at Shivpuri Chowk on
22/2/2006;
(b) The deceased Swapna @ Rinku met her
father (PW 17) at the said place who had last
seen her and he parted with her company at
8:30 p.m.
(c) PW 5 Pravin Nikumbh and PW 7 Maruti
Fad were present at the spot at Ramlila at
Shivpuri Chowk who had seen the accused
chitchatting with the deceased girl.
(d) On 22/2/2006 at about 10:00 to 10:15
p.m. PW 6 Arun Dalvi, an Auto-rickshaw driver,
while passing from Ambad Link Road, had seen
the accused and the deceased girl on the bicycle
and noticed that the girl was crying and saying
to the bicycle rider to take her to her father.
(e) On 22/2/2006 at about 11:00 p.m. the
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accused visited a country liquor shop situated at
village Ambad and he was served with liquor by
Mohan Dafedar (PW 9) and Shankar Khamkar
(PW 10).
(f) On 23/2/2006 the dead body of the
deceased was found at the agricultural field of
one Darade situated at Satpur and the body was
identified by the father.
(g) The cause of death of the deceased was
attributed due to throttling and the Medical
Officer (PW 16) established that the deceased
was sexually assaulted, raped and died a
homicidal death.
13 In order to link the aforesaid circumstances, the
prosecution also brought on record other material to support its case
that it was the accused person who had caused death of the deceased
on 22/2/2006 between 8:30 p.m. to 11:00 p.m. The accused came to
be arrested on 25/3/2006 and he made a statement leading to the
spot where he had taken the deceased and then murdered her and this
place was in the field of Darade. Prosecution relied on statement of
the accused under section 27 of the Evidence Act which lead to the
recovery of the clothes and chappal which the deceased had concealed
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in his house. There was also recovery and seizure of a bicycle used by
the accused to carry the deceased. Prosecution has examined PW
No.11 Nandu Pawar, who deposed that on 25/3/2006 he was called
by Police Ambad for the purpose of preparation of a panchnama. This
witness deposed before the Court that the accused had made a
disclosure statement in his presence that he will show the clothes and
bicycle which he had kept in his house. The statement of the accused
was recorded which lead to recovery of one blue colour bicycle at the
house of the accused located at CIDCO. The statement further lead to
the production of the clothes by the accused which were taken out
from the bag kept in the cupboard. The bicycle, the clothes and the
chappal were seized on executing a panchnama. The prosecution
examined one Balu Salve (PW No.12) in whose presence the mud
particles from the grip of handle of bicycle were removed after
drawing the panchnama. The said witness had identified the grip of
bicycle as Article 12 and 13 respectively.
14 The Prosecution also examined Ramesh Nimbaji Patil,
Senior Police Inspector attached to Ambad Police Station who was
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posted there from 4/6/2005 to 27/4/2007. He deposed that on
25/3/2006 he was on night round duty. He stated that when he was
going in his vehicle at around 3:00 a.m. in the night some persons
stopped him near Atul Dairy, Ambad Link Road. He deposed that he
had seen a group of men and women and one of the women namely
Pranpati Kanojiya informed him that when she and her grand-
daughter namely Puja was sleeping on the Ota of the house, Puja was
taken away. It was revealed to him that Puja Kanojiya was residing at
Shivpuri Chowk. On enquiry from this witness, one person namely
Vitthal Mali reveal that when he had gone for attending nature's call,
he had seen one person taking away girl on his shoulder. When search
was carried out in the nearby area, Shubham Park, Ambad Link Road,
one person was found with girl Puja who was identified by Pranpati
Kanojiya to be her grand-daughter. The said person who had carried
Puja was taken to Police Station and on complaint of Lalji Kanojiya
C.R.No.111/2006 was registered. The said witness identified the
accused who was taken into custody by him. This witness had carried
out the investigation in the crime relating to the kidnapping and
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murder of deceased Rinku i.e. the victim in the present crime. This
witness had prepared the spot panchnama and also the panchnama of
recovery of clothes, bicycle and chappal. It is this witness who had
referred the accused for medical examination and received the report
that the accused was capable of committing sexual intercourse. The
prosecution has also relied on the testimony of Nitin Mitkar (PW
No.19) who was working as Senior Police Inspector at Satpur Police
Station. It is this witness who was informed about the dead body of a
small girl lying in the field of one Darade. This witness had called for
the photographer and dog squad on the spot after registering
A.D.No.14/2006. PW 19 Mitkar deposed before the Court that he had
recorded the statement of witnesses and collected viscera and PM
report from the Civil Hospital and sent the muddemal to the Chemical
Analyser. This witness had forwarded the muddemal in the form of
grips of bicycle recovered at the instance of the accused for chemical
analysis.
The CA reports which are produced on record as Exhs.87
to 94, support the case of the prosecution. Though Exhs. 87, 88 and
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89 reflect inconclusive results, Exh.90 reveals that the earth collected
from the spot tallied with the particles of earth found on the cover of
the bicycle in respect of physico chemical characteristic. Exh.92 is the
report of nail and sample of mud found on the mouth of the deceased
and the report reveals that the earth collected from the spot tallied
with the earth found on the mouth of the deceased in respect of
physico chemical characteristic. Exh. 93 and 94 is the report of Salwar,
nicker and Kurti of the deceased and that of the vegetable plants and
the plain earth and earth mixed with blood. The report disclose that
the plants were stained with blood and earth was mixed with blood.
So also blood stains were found on the Kurti. The report further
reveals that the earth found on the vegetable plants and the earth
from the spot tallied in respect of physico chemical characteristic so
also the particles found on Salwar had components of mud similar to
that which were collected from the spot.
15 The prosecution also placed reliance on the test
identification parade to establish that it was the accused who was seen
by the prosecution witnesses. PW 14 Mahendra Mandle, Special
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Judicial Magistrate held the test identification parade in the crime as
per the directions of CJM Nashik on 22/4/2006. He deposed before
the Court the procedure followed by him in detail for holding the test
identification parade and gave the details of letters addressed to the
police as well as Prison Authority Nasik Road. He had issued summons
to witnesses Mohan Dafedar, Shankar Khamkar, Pravin Nikumbh,
Maruti Fad and Arun Dalvi to remain present for conducting of T.I.
Parade in Central Prison Nashik on 22/4/2006 at 10:00 a.m. He
deposed that except Arun Dalvi, summonses were served to all
witnesses and on 22/4/2006 test identification parade was conducted
in presence of two panch witnesses namely Bhaurao Shinde and
Bhagwan Salunkhe. Bhaurao Shinde has been examined as PW 15. He
executed the memorandum panchnama and which was proved by him
at Exh.72 and 73. The memorandum panchnama narrates the
procedure which has been followed by the Special Executive
Magistrate for conducting test identification parade and the witness
Maruti Fad, Pravin Nikumbh, Shankar Khamkar and Mohan Dafedar
identified the accused to be the same person whom they have
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mentioned as one who was seen by them on the night of 22/2/2006.
Identification Parade in respect of Arun Dalvi came to be cancelled.
The memorandum is proved by Bhaurao Shinde (PW 15).
16 The prosecution has established its case based on
circumstantial evidence. The circumstances relied upon by the
prosecution are fully established and chain of evidence furnished by it
is complete in all aspect and it does not leave any reasonable ground
for conclusion consistent with the innocence of the accused. Each and
every circumstance established by the prosecution is conclusive in
nature and consistent only with the hypothesis of the guilt of the
accused and it points out only to the guilt of the accused. The
prosecution was successful in establishing the circumstances beyond
doubt and all these circumstances cumulatively taken together lead to
irresistible conclusion that it is the accused who has caused the death
of the deceased Rinku after sexually assaulting her. The prosecution
has also heavily relied upon on the last seen theory. The deceased last
parted the company of her father (PW 17) who had deposed that he
had gone to see Ramlila event at 8:30 p.m. and his daughter Rinku
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accompanied him. He parted with the company of the deceased after
8:30 p.m. The deceased was seen by PW 5 Pravin Nikumbh and PW 7
Maruti Fad at the spot of Ramlila at Shivpuri Chowk at around 10:00
p.m. with the accused and that the accused carried the deceased on
his bicycle. The next circumstance which the prosecution relies upon
is the evidence of PW 6 Arun Dalvi, an auto-rickshaw driver, who had
seen the deceased on the bicycle of a person whom he identified as the
accused at around 10:00 p.m. to 10:15 p.m. on Ambad Link Road.
The prosecution then relies upon the testimony of PW No. 9 and 10
who had deposed that at around 11:00 p.m. one person having a
bicycle had come to the shop to consume liquor and he consumed
liquor. PW 10 had noticed mud stains on the shirt and pant of the
accused and on enquiry from him, the accused had answered that he
was under tension and he should not be asked anything. All the
aforesaid witnesses of the prosecution had identified the accused in
the dock and also in the identification parade conducted by the
prosecution for the purposes of investigation. The deceased was
found dead in the village Satpur in the field of wheat of Darade and
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this was informed to PW 1 Shivaji Dalvi by one Vitthal Bhandure at
about 9:00 a.m. The time gap between the two events i.e. when the
accused and the deceased were last seen together alive and when the
deceased was found dead, lead to a possibility that it was only the
accused in whose company deceased was seen alive but then at about
10:00 p.m. accused was seen all alone and under the tremendous
tension. This chain of circumstance clearly establish that the accused is
the author of the crime and his guilt is established by the chain of
evidence laid by the prosecution which is complete in all aspects and
all the circumstances taken together establish the guilt of the accused.
17 Though the counsel for the appellant/accused Shri
Abhaykumar Apte would vehemently argue that the prosecution has
failed to prove the circumstances and the appellant is falsely
implicated, we do not agree with the submission of learned Counsel.
The Counsel for the appellant would argue that the body of deceased
was found in wheat field on 23/2/2006 and accused came to be
arrested on 25/3/2006 by Ambad Police Station when he was rescuing
a minor girl from Ambad Police Station area and he was falsely
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implicated in Crime No. 28/2006 at Satpur Police Station since there
was huge public outcry for not detecting the criminal of kidnapping
and raping of minor girl Rinku. The learned Counsel for the appellant
have also made unsuccessful attempt to discredit the testimony of the
witnesses and also by arguing that the witnesses had no opportunity
to see the appellant at the time of crime since it was late night and he
would also argue that the test identification parade that has been
conducted is not validly conducted as per procedure. All the
prosecution witnesses which the prosecution relies upon for relying
the last seen theory, have identified the present appellant in the dock
before the trial Court. We do not find any infirmity in the conduct of
the test identification parade and even if it is so, test identification
parade is not a substantive piece of evidence but is only of assistance
to the prosecution to show that it is investigating in right direction.
Identification of the accused in the dock is sufficient and therefore we
do not find any substance in the argument of learned counsel for the
appellant. The test identification parade has also been sought to be
doubted by the counsel for the appellant since according to him police
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machinery immediately after the arrest of accused, had published the
photograph in local newspaper that he was the person who had
committed rape on missing girl Rinku and therefore the test
identification parade cannot be said to inspire confidence since the
photograph was already widely circulated. The Counsel for the
appellant would argue that chain of circumstance is not fully
established by the prosecution and did not inspire any confidence and
his conviction based on such chain of circumstances warrants reversal.
He would also argue that motive is completely absent in the
prosecution case and it was not the case of the prosecution that the
appellant had pervert mentality and he was sex addict and therefore
he had kidnapped the girl, raped her and later murdered her.
We did not find any force in the submission of learned
Counsel for the appellant. In his statement, recorded under Section
313 of Criminal Procedure Code (Cr.P.C.) the appellant/accused had
deposed that on 25/3/2006 at around 4:00 a.m., he was attending the
duty and at that time two boys were going through the road and a girl
was with them. It is deposed by him that on seeing him, they left that
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girl on the road and had ran away. As the said girl was weeping, he
had gone near to her and at that time police vehicle came there. He
deposed that he informed the police what had happened but they said
whatever he wanted to tell he should tell in police station by
accompanying the police and by beating him he was asked to admit
the crime. He has stated that he was falsely implicated in the said
crime. Nonetheless to say that he did not examine any witness or
adduce any other evidence on this point.
It was obligatory on the part of the accused while being
examined under Section 313 of the Cr.P.C. to furnish some explanation
with respect to incriminating circumstances associated with him and
court must take note of such explanation even in a case of
circumstantial evidence, in order to decide as to whether or not, the
chain of circumstances is complete. When the attention of the accused
is drawn to such circumstances that inculpate him in relation to
commission of crime and if he fails to offer an explanation, the said
act must be counted as missing link for completing the chain of
circumstances.
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The culpability of the appellant/accused in the absence of
any direct evidence has to be judged on the basis of the circumstances
narrated above. The principles of law governing proof of a criminal
charge by circumstantial evidence is by now well established and
hardly require any reiteration, save and except, the circumstances on
which the prosecution relies must be proved, beyond reasonable
doubt, such circumstance must be capable of giving rise to inference
which is inconsistent with any other hypothesis except the guilt of the
accused. It is only in such a contingency, the conviction can be
sustained on the basis of circumstantial evidence. At this stage, a
reference is made to the "five golden principles" known as
"Panchsheel" enunciated by the Hon'ble Apex Court in the case of
Sharad Birdichand Sarda Vs. State of Maharashtra (1984) 4 SCC
184 needs a reproduction of paragraph 153.
"A close analysis of this decision would show
that following conditions must be fulfilled before a
case against an accused can be said to be fully
established;
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(1) The circumstances from which the
conclusion of guilt is to be drawn should
be fully established;
It may be noted here that this Court indicated
that the circumstances concerned 'must or should' and
not 'may be' established. There is not only a
grammatical but a legal distinction between 'may be
proved' and "must be or should be proved" as was
held by this Court in Shivaji Sahabrao Bobade Vs.
State of Maharashtra [SCC para 19, p.807) where the
following observations were made.
Certainly, it is a primary principle that the
accused must be and not merely may be guilty before
a Court can convict, and the mental distance between
'may be' and 'must be' is long and divides vague
conjectures from sure conclusions.
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
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accused and must show that in all human probability
the act must have been done by the accused."
19 By now it is settled proposition of law that each and every
incriminating circumstance must be clearly established by reliable and
clinching evidence and the circumstances so proved must form a chain
of events from which the only irresistible conclusion about guilt of the
accused can be safely drawn and no other hypothesis against the guilt
is possible. The chain of circumstances established by the prosecution
in the present case is complete in all aspects and the prosecution has
also based its case on the last seen theory and have positively
established that the gap between the deceased last seen alive in the
company of the accused and the recovery of her dead body in the wee
hours absolves the prosecution of the burden which it has to discharge
to prove the guilt of the accused when it is established that the
accused was last seen in the company of the deceased. The
prosecution is then exempted from proving the exact happening of the
incident as it is the accused who only had special knowledge of the
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incident and he has to discharge the burden of proof as per Section
106 of the Evidence Act. The prosecution in the present case has
adduced clinching evidence in support of the last seen theory and
therefore it has shifted its burden to the accused and it is for him to
establish as to when he parted with the company of deceased girl and
the circumstances in which he parted her company. No explanation
has come from the appellant except a plea of false implication and this
confirms the conclusion that it is the accused who had kidnapped the
deceased on the date of the incident, sexually assaulted her and
caused her death which is fully attributable to the sexual act since the
girl was of a tender age and the appellant being a fully grown man.
20 After examining the entire case of the prosecution, we are
of the firm view that the evidence led by the prosecution in support of
its case, though based on circumstantial evidence satisfied the test of
being reliable evidence and establish the circumstances which point
out towards guilt of the accused. The circumstances on which the
prosecution has relied on are cogent and unmistakenly point towards
guilt of the accused. The accused is a young boy about 20 years,
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appeared to have carried a girl of tender age for satisfying his lust,
kidnapped and raped her girl. On 25/4/2006 he had again attempted
to carry another girl from the same locality and came to be intercepted
by police squad and another young life was prevented from being
crushed and destroyed. There is no need for any motive to be
established in such a crime and it can be safely inferred that it is lust
of the appellant/accused which had induced him to adopt such a un-
human and barbaric approach. On appreciation of the evidence of the
prosecution, we can safely infer that the witnesses examined by the
prosecution inspire confidence and except the father of the deceased
(PW 17), all the witnesses are independent and natural witnesses.
There is no reason why the said witnesses have pointed out the finger
of guilt towards the accused only and there is no reason why they
were falsely implicating the accused who is complete a stranger to
them. The accompanying circumstances brought on record by the
prosecution establish the guilt of the accused. We feel no substance in
the argument of learned counsel for the appellant nor we are ready to
show any compassion to such an accused. The finding recorded by the
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Session Court therefore cannot be faulted with, nor it can be said that
there is any perversity in the said findings since it is based on the
evidence before it. We do not find any infirmity either legal or factual
in the judgment passed by the Session Court warranting an
interference.
In the light of aforesaid discussion, we pass the following order:
(a) The appeal arising out of Sessions Case No. 88 of
2006 decided on 15/10/2010 in the case of State Vs.
Vijay Babasaheb Nanavare is dismissed;
(b) In view of disposal of the above appeal, Criminal
Application No.1290 of 2012 taken out in Criminal
Appeal No. 891 of 2010 does not survive and the same is
also disposed of;
(c) Fees of Mr. Abhaykumar Apte, Advocate appointed
by Legal Aid Committee for the Appellant in Criminal
Appeal No. 891 of 2010 and for Respondent in Criminal
Appeal No. 448 of 2011 is quantified at Rs.5000/-.
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CRIMINAL APPEAL No. 448 of 2011 :-
1 The present appeal is filed by the State of Maharashtra
under Section 366 of the Code of Criminal Procedure, praying for
enhancement of the sentence imposed on the accused Vijay Nanavare
convicted in Sessions Case No. 88 of 2006. The learned Sessions Court
imposed the following sentence:-
The appellant is convicted and sentenced
for kidnapping minor girl, aged about ten years,
with intent to commit rape on her and for
murdering said girl and thereby committing
offences punishable under sections 366-A, 376(2)
(f), 302 of the Indian Penal Code. On conviction
under Section 302 of IPC, the appellant is
sentenced to suffer imprisonment for life and to pay
a fine of Rs.1000/-. For conviction of offences
under Section 366-A and 376 (2) of IPC, the
appellant is sentenced to suffer RI for ten years and
to pay fine of Rs.1000/-on each count. In default
to pay fine imposed against the appellant as
aforesaid, he is directed to suffer Simple
Imprisonment (SI) for three months. All the
sentences have been directed to be run
concurrently.
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2 By the said appeal, the State has sought enhancement on
the following grounds :-
A) That the order of sentence passed by the
Additional Sessions Judge, Nashik, District Nashik
in respect of the Respondent/Original accused is
inadequate and deserves to be enhanced.
B) In view of the evidence laid by the prosecution
learned Lower Court though came to the
conclusion that offence is duly proved against the
accused he was pleased to show leniency while
awarding the sentence. There was no valid ground
for the leniency.
C) That the learned Sessions Court ought to have
seen that the prosecution by way of placing on
record credible evidence has proved that the
accused induced the deceased to come with him
from Ramlila to the spot and after reaching to the
spot accused committed rape on her.
(v) That the learned Sessions Court ought to
have seen that all the circumstances are cogently
and firmly established by prosecution to prove the
guilt of accused.
G) That the learned Sessions Court ought to have
seen that the offence committed by accused comes
within the category of rarest of rare case and
ought to have awarded death sentence.
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3 We have heard learned APP on the said issue. We need not
repeat the case of the prosecution and also the evidence brought
before the Trial Court to conclusively establish the case of the
prosecution leading to the conviction of the accused since we have
already dealt with the same while dealing with the appeal filed by the
accused/appellant. The learned APP Shri Dedhia, would argue that
the learned Sessions Judge has held that the case of the prosecution
was proved beyond doubt and the prosecution has led the evidence
which inspire confidence and pinpoint towards guilt of the accused.
The learned APP would argue that a girl of tender age was ravished
and then done to death and the act of the accused is total inhuman,
barbaric and needs to be dealt with stringently in order to curb such
rising tendencies. According to the learned APP, the learned Trial
Court has taken a lenient view and imposed penalty of imprisonment
of life for an offence under section 302 of IPC but the said crime
warranted a harsh penalty and the circumstances warranted
imposition of death sentence on the accused.
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4 We have also heard learned counsel for the appellant in
response to the said appeal filed by the prosecution.
5 It is no doubt true that the prime object of criminal law is
imposition of adequate, appropriate, just and proportionate sentence
which would commensurate with the gravity of the crime and by
taking into consideration various factors including the manner in
which the crime is committed. The sentence imposed on a finding of
guilt being recorded is intended to serve two-fold purpose, namely,
punishing the offender and also to act as a deterrent on the members
of the society to indulge into such type of activity. That there is no
straitjacket formula for imposition of sentence on an accused, when
the crime against him is fully established. The object of sentencing
being deterrence and corrections, the penalty imposed should be
proportionate with the offence committed. The paramount
consideration is that it should meet the ends of justice. Though the
question of sentence is a matter of discretion but it is well settled
proposition that such discretion is not unfettered and is to be
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discharged by the sentencing court by applying well known principles
established in law and it is expected that the imposition of sentence
would commensurate with the nature of crime, the manner of
commission of crime, the object/motive in committing the crime, the
age of the accused, the brutality of the offence and also impact of the
said crime on the society at large and the manner in which the society
has reacted to such a crime.
6 While considering an appeal, praying for enhancement of
the sentence that has been imposed, the law is well settled that if the
discretion has been properly exercised in consonance with the
accepted norms, the appellate court would be slow in interfering with
the sentence imposed. The Hon'ble Apex Court in the case of Bed Raj
v. State of Uttar Pradesh, AIR 1955 S.C. 778 in paragraph 15 as
follows :-
"(15) A question of a sentence is a matter of
discretion and it is well settled that when discretion
has been properly exercised along accepted judicial
lines, an appellate court should not interfere to the
detriment of an accused person except for very strong
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reasons which must be disclosed on the face of the
judgment; see for example the observations in 'Dalip
Singh v. State of Punjab, AIR 1953 SC 364 at pp.367-
368 (A) and Nar Singh v. State of Uttar Pradesh, AIR
1954 SC 457 at pp.458-459(B).
In a matter of enhancement there should not be
interference when the sentence passed imposes
substantial punishment. Interference is only called for
when it is manifestly inadequate. In our opinion,
these principles have not been observed. It is
impossible to hold in the circumstances described that
the Sessions Judge did not impose a substantial
sentence, and no adequate reason has been assigned by
the learned High Court Judges for considering the
sentence manifestly inadequate.
In the circumstances, bearing all the considerations
of this case in mind, we are of opinion that the appeal
(which is limited to the question of sentence) should be
allowed and that the sentence imposed by the High
Court should be set aside and that of the Sessions
Court restored."
7 In the present case, we have already held that the
prosecution has proved its case by laying down cogent and reliable
evidence before the Sessions Court resulting into conviction of the
accused for the offence punishable under Sections 302, 366A, 376(2)
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(f) of the IPC. We have also recorded that we find no justifiable
ground to take a different view from the view of the learned Sessions
Judge and we are in complete agreement with the conclusion of guilt
drawn by the Court below and we hold that the evidence and the
material on record proved beyond reasonable doubt that it is the
appellant/accused who has committed offence with which he was
charged. Protection of society and deterring the criminal is the object
of penal law and in the present case a young girl has been done to
death with a petty object of satisfying lust at the hands of a young
man and we can not resist ourselves from taking judicial note of the
fact that this tendency is increasing and the society at large is of the
opinion that such crimes have to be dealt with sternly especially when
it takes within its sweep innocent, helpless girl of tender age. In
order to deal with such crime, the penal laws including substantive
and procedural law were required to be amended, making such type
of offences affecting the dignity of the woman more vicious and
requiring more sensitization in order to respond the public outrage
and to deal with such crimes by imposition of appropriate harsh
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sentence. However, it is also to be noted that for the offences of such
nature resulting in conviction under section 302 of IPC the sentence to
be imposed as provided under the Penal Code is either death or
imprisonment for life. However, whenever a death sentence is to be
imposed, it should be accompanied with the reasons for imposing such
a death sentence and various factors that would lead to justification of
imposition of such a sentence.
Section 354 (3) of Cr.P.C. contemplates recording of
exceptional reasons inflicting imposition of death penalty, as a
departure from normal rule.
The learned Sessions while imposing the sentence has
afforded an opportunity to the accused to be heard on the point of
sentence and also considered the arguments of learned APP who had
requested for imposition of a death sentence by relying upon catena of
judgments of the Hon'ble Apex Court as well as this Court. On
consideration of the said judgments, the learned Sessions Judge has
recorded a finding that the said case did not fall within the category of
'rarest or rare case'. The learned Sessions Judge have taken note of the
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fact that the accused is aged about 30 years and therefore he choose
to award imprisonment for life for the offence committed under
Section 302 of the IPC. The learned Sessions Judge was conscious of
the fact that the deceased was aged about ten years and he imposed
the sentence of RI for 10 years, for conviction under Section 376 (2)
(f) of the IPC.
8 Since the imposition of sentence is a matter of discretion
and in our opinion that discretion has been properly exercised by the
learned Sessions Judge with the accepted principles and we do not
find any strong reason to muddle with the said discretion exercised by
the Sessions Court. For the reasons recorded above, we refuse to
interfere in the sentence imposed by the learned Sessions Judge.
Resultantly, we dismiss the appeal filed by the State seeking
enhancement of the sentence.
(SMT. BHARATI H. DANGRE, J) (B.R. GAVAI, J)
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