Bombay High Court
The State Of Maharashtra vs Mohammad Aabed Mohammad Ajmir ... on 8 February, 2022
Bench: S.S. Jadhav, P. K. Chavan
CONF.CASE.2.2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL CONFIRMATION CASE NO. 2 OF 2019
The State of Maharashtra. ... Appellant.
v/s.
Mohammad Aabed Mohammad Ajmir
Shaikh.
Aged 20 years.
Residing at Gautam Chawl,
Near Mohammadiya Masjid,
Roshan Baug, Bhiwandi,
Dist. Thane. ... Respondent.
-------------------
Mr. Arfan Sait, APP for State.
Ms. Payoshi Roy a/w. Dr. Yug Mohit Chaudhry, advocate for
Respondent No. 1.
Ms. Priyanka Chavan, appointed Advocate for victim.
Mr. Rajendra Prakash Mayane, Sr. Police Inspector, Bhiwandi City
Traffic Unit, Bhiwandi, Dist. Thane.
---------------------
CORAM : SMT. SADHANA S. JADHAV &
Digitally
PRITHVIRAJ K. CHAVAN, JJ.
signed by
ARUNA S
ARUNA S
TALWALKAR
RESERVED ON : DECEMBER 10, 2021.
TALWALKAR Date:
2022.02.08
13:41:15
PRONOUNCED ON : FEBRUARY 8, 2022.
+0530
JUDGMENT (PER SMT. SADHANA S. JADHAV, J)
The stone of a grave had crushed the candle before it could
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spread light or its aura could be seen.
1 The tragic death of the child Miss. "X" came to light on 4th
April, 2018, when her almost decomposed body was found in an
abandoned state in the thorny bushes of an open land, which was used
by the locals for defecating.
2 The State has filed this Case for confirming the death
sentence awarded against the Respondent-Accused vide Judgment and
Order dated 8th March, 2019 passed by the Additional Sessions Judge
& Special Judge under POCSO Act, Thane in Special Case (Child
Protection) No. 159 of 2018. The operative order reads as under :
"1. Accused Mohammad Aabed Mohammad Ajmir
Shaikh, aged 20 years is hereby convicted as per section
235(2) of the Code of Criminal Procedure for the offence
punishable under sections 363, 364, 366-A, 302, 201 of
Indian Penal Code and offence punishable under sections 4,
8 and 10 of the Protection of Children from Sexual
Offences Act, 2012.
2. Accused is hereby convicted as per section 235(2) of
the Code of Criminal Procedure Code for the offence
punishable under section 302 of Indian Penal Code and be
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hanged by the neck till he is dead.
3. Accused is hereby sentenced to suffer rigorous
imprisonment for life which shall mean imprisonment for
the remainder of his natural life and to pay fine of Rs.
5,000 (Rupees Five Thousand only) for the offence
punishable under section 376(2)(i) of Indian Penal Code.
In default of payment of fine, shall suffer rigorous
imprisonment for one year.
4. Accused is sentenced to suffer rigorous imprisonment
for 5 years and shall pay fine of Rs. 5,000/-(Rupees Five
Thousand only) for the offence punishable under section
363 of IPC. In default of payment of fine, shall suffer
rigorous imprisonment for 6 months.
5. Accused is sentenced to suffer rigorous imprisonment
for 5 years and shall pay fine of Rs. 5000/-(Rupees Five
Thousand only) for the offence punishable under section
364 of IPC. In default of payment of fine, shall suffer
rigorous imprisonment for 6 months.
6. Accused is sentenced to suffer rigorous imprisonment
for 5 years and shall pay fine of Rs. 5,000/- (Rupees Five
Thousand only) for the offence punishable under section
366-A of IPC. In default of payment of fine, shall suffer
rigorous imprisonment for 6 months.
7. Accused is sentenced to suffer rigorous imprisonment
for 3 years and shall pay fine of Rs. 5,000/- (Rupees Five
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Thousand only) for the offence punishable under section
201 of IPC. In default of payment of fine, shall suffer
rigorous imprisonment for 6 months.
8 All the substantive sentences for imprisonment of the
accused shall run concurrently.
9 After realization of the amount, it shall be given to
the parents of deceased girl after appeal period is over.
10 Accused is in jail. Hence, he is entitled for set off
under section 428 of the Code of Criminal Procedure for
the period already undergone in jail for the punishments of
the offences except for the punishment under section
376(2)(i) as it implies that life imprisonment shall mean
the imprisonment for remainder of life.
11 In view of section 28(2) of Cr. P.C. the sentence of
death shall be subject to the confirmation by the Hon'ble
High Court. Hence, entire proceeding be sent to the
Hon'ble High Court at the earliest.
12 Muddemal property being worthless be destroyed
after appeal period is over.
13 The District Legal Service, Thane is hereby requested
to award compensation to the parents of deceased girl, as
per rule.
14. Judgment declared in open court.
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15. Copy of this Judgment be given to the accused free of
costs."
3 The facts of the case in nutshell are as under :
On 2nd April, 2018 early morning PW. 1 lodged a missing
report at Bhoiwada Police station alleging therein that on 1 st April,
2018 he left his house at about 4.00 p.m after his afternoon break and
went to his pan stall. At about 6.00 p.m, his elder son Ajay visited the
pan stall only to inform him that his younger sister who had gone to
play at about 4.30 p.m had not yet returned home and was not
traceable. The complainant immediately shut down his shop and went
in search of his daughter, but in vain. Finally, in the early hours of
2/4/2018 he was constrained to lodge a report alleging therein that
some unknown person, for reasons unknown to him, had kidnapped
his daughter. On the basis of the said report, Crime No. 47/2018 was
registered at Bhoiwada Police Station against unknown person for an
offence punishable under Section 363 of Indian Penal Code.
Investigation was set in motion.
4 On 4th April, 2018 when P.W 1 was at home, he was
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informed by some children from the neighbourhood that the missing
child was found. The people in the vicinity informed the complainant
that an abandoned dead body of a child was seen in the bushes on the
open land behind the chawl. He had also learnt from the people in the
neighbourhood that a person working in the power loom had seen the
dead body when he had gone to the spot for defecating. PW. 1 reached
the spot, saw the dead body and identified it to be that of his daughter
from the clothes and the footwear. He had also seen that her two
hands and right leg were almost amputated and the dead body was
almost decomposed. The complainant had noticed that maggots were
crawling all over her body. The complainant was shattered.
5 For parents, the loss of a child is not just loss of a person
they loved, but it is a psychological loss for the parents as their dreams
for the child and with the child come to an end. It creates a vacuum
from within. In cases like present one, after seeing the decomposed
body, the first thought that would come to the parents is that they
never dared to hurt the feelings and aspirations of the child, they used
to be careful to touch the child, lest even their feather touch may hurt
the tender hands and legs. Then, how could someone cause such a
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gruesome murder of that innocent child?
6 With a heavy heart, the complainant immediately informed
the police about having traced the dead body of the missing child. He
gave the location to the police. The police reached on the spot. Inquest
was performed on the dead body, on the spot. The inquest panchnama
is at Exh. 29. The body was sent for post-mortem and it was
determined that the cause of death was "Head injury with fracture of
underlying skull with amputation of both upper
extremities(Unnatural)". On 4th April, 2018 a formal report was
lodged by the complainant in Bhoiwada Police Station, Bhiwandi about
finding the dead body of his daughter at a secluded location. Section
302 of India Penal Code was added.
7 On 6th April, 2018 the police learnt that one worker in a
weaving mill (present appellant) had confessed before his co-worker
about having committed the offence. The statement of P.W.14 was
recorded. Pursuant to the said statement, the police searched for the
accused, but it was learnt from reliable sources that the accused had
fled to his hometown in Bihar. The investigating officer along with the
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brother of the accused reached Bihar. The accused was arrested and
was brought to Maharashtra. The accused was produced before the
Magistrate. After completion of investigation, charge-sheet was filed
and the case was registered as Special Case (Child Protection) No.
159/2018.
8 At the trial the prosecution has examined as many as 22
witnesses to bring home the guilt of the accused. PW 1 is the father of
the deceased. PW 2 is the photographer, who took the pictures of the
deceased at the scene of offence. PW 3 Kumar Mandal maintained the
attendance register of the workers at the Power Loom, in which the
accused and PW 14 were working as co-workers. PW 4 Dr. Vedpathak
has performed autopsy on the dead body of the deceased along with
PW.18 Dr. Bhise, PW 5 Rajiv Bansal has claimed to have seen the
deceased lastly in the company of the accused. PW 6 Nitin is the
brother of the deceased and the son of PW 1. PW 7 Abdul Khan and
PW 8 Mahindra Nikam are the panchas for the scene of offence. PW 9
Jatin Mokashi is a government employee and he is a panch to the fact
that the accused had led the investigating agency to the spot, from
where the accused had picked up the victim. PW 10 Vijay Shinde is the
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Nodal Officer, who has proved the call details record of the accused,
which is not disputed. PW 11 Jafar is panch for seizure of clothes of
the deceased, whereas PW 12 Bhimrao Patekar is the panch for the
recovery of clothes of the accused at his instance under Section 27 of
the Indian Evidence Act. PW 13 Siddharth has produced the CCTV
footage installed at the Power Loom where the accused and PW 14
were working.
9 PW 14 Mohammad Irfan Shaikh is the star witness to
whom the accused had allegedly made an extra judicial confession. PW
15 PSI Nilesh Jadhav had received the muddemal and prepared a
receipt to that effect. PW16 Ujwala Ramoshi is the carrier of the
sample to CA office. PW 17 is the PSO who registered the complaint of
PW 1 on 2nd April, 2018. PW 19 is the medical officer who examined
the accused. PW 20 Jayshree Mhaske, medical officer collected samples
of accused and parents of victim for DNA testing. PW 21 Mohmmad
Azmatullah Shaikh is the brother of the accused. PW 22 Rajendra
Maine is the investigating officer.
10 The prosecution has placed implicit reliance on the
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evidence of PW 1 the complainant i.e the unfortunate father of the
deceased, PW 4 Dr. Pritija Vedpathak and PW 18 Dr. Bhise who
conducted autopsy on the dead body of the deceased, PW 5 Raju
Bansal, the witness who claims to have seen the deceased lastly in the
company of the accused, PW 6 the brother of the deceased who claims
to be playing with the deceased before she went missing. PW 14
Mohmmad Irfan Shaikh, who happens to be the room-mate as well as
the co-worker of the accused to whom the accused had made an extra-
judicial confession in respect of having caused death of Miss "X" on 1 st
April 2918, PW 21 the brother of the accused and PW 22 the
investigating officer.
11 PW. 1 the complainant has deposed before the Court that
he is a father of four children i.e three sons and one
daughter(deceased) who was 4 and half year old at the time of
incident. He runs a pan stall close to his house. His pan stall is closed
in the afternoon from 2 to 4 p.m. he closes his shop daily at 2 p.m for
lunch break and reopens it at 4 p.m.
12 According to him on 1st April, 2018 as usual after lunch-
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break he left his house at 4 p.m.. At about 6 p.m, his elder son Ajay
visited the pan stall only to inform his father that his younger sister
had gone to play at about 4.30 p.m and did not return till 6 p.m. They
had searched for her, but could not find her. He therefore, rushed to
inform his father.
13 Upon hearing from his elder son, PW. 1 had searched for
his daughter at all possible places. He inquired with the neighbours
and relatives, but could not find his daughter and as a last resort,
informed the police in the wee hours of 2 nd April, 2018 about the
missing child. He proved the contents of the missing report lodged by
him which is marked at Exhibit 7.
14 PW. 1 has further deposed that on 2 nd April, 2018 he had
affixed the child's photographs at various places, he had distributed
pamphlets and had also made announcement about the missing child
from the Masjid. On 4th April, 2018, he had learnt from the children in
the locality about the abandoned dead body of a child, which he
identified as his own daughter. He reported to the police and
thereafter, the investigation had got some momentum. The death of
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the child was a harsh blow not only to the parents of deceased, but to
the society as a whole.
15 According to PW 1, after the arrest of the accused, in the
course of investigation, it has transpired that the accused owed rupees
1500/- to the complainant. He used to purchase cigarettes and tobacco
from the pan stall of the complainant on credit. PW 1 had slapped him
8 months prior to the incident for non-payment of Rs.1,500/- and
therefore, the accused in order to satisfy his vendetta had killed the
daughter of the complainant. That the accused had made an extra-
judicial confession to that effect in his presence before police and he
had stated in his confession that he had sexually abused the daughter
of the complainant, killed her by throttling her neck and then inflicted
an injury on her head with a stone.
16 In the cross-examination, he has specifically stated that
nobody had disclosed to him that his daughter was lastly seen with the
accused or that the accused had carried the daughter of the
complainant. He has also admitted that the accounts of the said
transaction between him and accused was maintained by the accused
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himself and the complainant did not have any document or any other
material to show that the accused owed Rs. 1,500/- to the
complainant. The statement of PW 1 was recorded on 4/4/2018,
which is marked as Exhibit 9. The inquest panchnama was conducted
in his presence and is marked at Exhibit 29.
17 It is pertinent to note that when the trial commenced and
the evidence of the complainant was being recorded, there was no
Advocate to represent the accused. It was only after recording of
examination-in-chief of the complainant, an Advocate was appointed
through legal aid panel to represent the accused.
18 PW 3 Kumar Chandrabhushan Mandal was working as a
manager in the power loom owned by Akram Shaikh. According to
him, the power loom is running in two shifts and 8 persons are
working in each shift. The accused Aabed and PW 14 were working in
the said power loom, whereas brother of accused was working in an
adjacent industry. PW 3 claims to be acquainted with PW 1 as PW 1
was running a pan stall in close proximity. PW 3 maintained the
attendance register of the workers in the power loom. On 4 th April,
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2018, the accused Aabed and his friend Irfan were on night duty. After
5th April, 2018, the accused absented himself from work.
19 The police had visited the power loom and had seized the
pant, shirt and banian from the said power loom. PW 3 had handed
over the attendance register to the police. PW 3 had further stated that
Irfan had informed PW 3 that the accused Aabed had voluntarily
disclosed to him that he had committed rape and murder of the victim
and therefore, he had fled to his native place. The attendance register
is marked at Exhibit 33. It is admitted in the cross-examination that
the register was handed over to the police on 19 th May, 2018. The
said register does not bear the seal of the unit of the power loom or the
signature of PW 3.
20 The autopsy was performed on the dead body of the victim
on 5th April, 2018 by PW 4 Dr. Preetija Vedpathak and PW 18 Dr. Bhise
who were attached to J J Hospital in Forensic Department. PW 4 was
informed by PSI D. P. Kamble that the body of deceased was found in
an open space near bushes behind Mohammadiya Masjid Bhiwandi.
During the post mortem, following injuries were observed -
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"2. On external examination of the body, following injuries were
noted.
(i) Multiple oval to circular shaped lacerated wounds of
size raging from 0.5 x 1 cm. to 1.5 x 2 cm. over parieto
occipital region scalp, scalp deep, with irregular margins,
pale, without infiltration of blood;
(ii) Lacerated wound of size 4 x 3 cm. over high parieto
occipital region of scalp with irregular margins, with
underlying displaced fracture of skull bone, fractured piece of
size 2 x 1.5 cm, margins irregular, reddish brown, with
infiltration of blood with separation of skull vault along
coronal, sagittal and lambdoid suture lines margins infiltrated
with blood, reddish brown in colour. Length of separated
coronal suture 21 cm, sagittal suture 12 cm & lambdoid
suture 9 cm;
(iii) Lacerated wound of size 14 x 7 cm over lower half of
face below nose, exposing under lying maxillary bones and
mandible margins irregular, pale, without infiltration of blood;
(iv) Contusion of size 4 x 2 cm subcutaneous deep,
reddish brown just above lateral aspect of right eyebrow;
(v) Contusion of size 4 x 3 cm bone deep, reddish brown,
midfrontal area above glabella;
(vi) Amputation wound on right arm, 8 cm. below
shoulder tip, 5 cm diameter, 13 cm circumference, exposing
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muscles, soft tissue, humerus bone which exposes 4 cm of its
lower end from the wound margins of wound and bone are
irregular, pale, without infiltration of blood.
(vii) Amputation wound on left arm, 4 cm below shoulder
tip, 4 cm diameter, 12 cm circumference exposing muscles,
soft tissue, humerus bone which exposes 11 cm. of its lower
end from the wound, margins of both wounds and bone are
irregular, pale, without infiltration of blood;
(viii) Contusion of size 3 x 2 cm, subcutaneous deep, over
left thigh anteromedially, reddish brown in colour;
(ix) Contusion of size 3 x 1 cm, subcutaneous deep, over
right thigh anteromedially lower third region, reddish brown
colour;
(x) Contusion of size 5 x 2 cm, subcutaneous deep, over
right thigh posteromedially lower third region, reddish brown
colour;
(xi) Incised wound, horizontal, of size 5 x 2 cm,
subcutaneous deep, over left thigh lower third region laterally,
margins cleancut, reddish brown with infiltration of blood;
(xii) Incise wound, oblique placed 3 x 1 cm, subcutaneous
deep, over left thigh just below injury No. (xi), margins clean
cut, reddish brown with infiltration of blood;
(xi) Lacerated wound of size 7 x 5 cm over right foot
exposing two metatarsal bones with thin lower ends
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irregularly cut, without infiltration of blood, wound also
exposing muscles tendons, soft tissue, with irregular margins,
pale, without infiltration of blood."
According to PW 4, injury Nos. 2, 4, 5, 8, 9, 10, 11, and 12 were ante-
mortem injuries while injury Nos. 1, 3, 6, 7 and 13 are postmortem
injuries. The probable cause of death was due to "head injury with a
fracture of underlying skull and amputation of both upper extremities."
It is therefore clear that injury Nos. 6 and 7, which are amputation
wounds are postmortem injuries.
21 It is pertinent to note that the opinion of PW 4 to the extent
that the victim was sexually assaulted, according to her, is based on the
CA report, which indicated that there were semen stains on the pant of
accused, which is at Exhibit 37 and there were semen stains on the
frock of the deceased girl. It is candidly admitted by PW 4 in her cross-
examination that the CA report at Exhibits 37 and 47 indicate that the
semen stains are of human, however ABO grouping is inconclusive.
22 At this juncture, it would be necessary to refer to Exhibit
47, which is the CA report of the clothes of the deceased, her footwear,
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earth collected from the spot. Article No. 4 is the frock of the deceased,
whereas Article No. 5 is the bloomer of the deceased. The result of the
analysis is as follows:
1) Exhibit 4 is stained with blood and appears to be
decomposed.
2) No blood is detected on exhibit 2, 3 and 5.
3) No semen is detected on exhibit 1, 2, 3, 4 and 5.
4) Exhibit no. 4 semen - human - inconclusive.
23 The prosecution has examined PW 5 Rajiv Bansal to
substantiate the circumstance of "last seen" theory. The said witness is
the owner of a scrap material shop, which is situated in front of Golden
Hotel, Devji Nagar. He was the customer of the complainant. He claims
to be acquainted with the daughter of the complainant i.e. the
deceased, since she was always seen playing on the ground adjacent to
the pan shop of complainant. He also claims to be acquainted with the
workers in the power loom unit, as they used to visit the Golden hotel
for drinking tea. On 13th April, 2018, he returned from his native
place. When he was sitting in Golden Hotel, drinking tea with Irshad
Ansari, he saw the accused in the custody of the police. Upon inquiry
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with Irshad Ansari, he learnt that the accused was arrested by the
police for having committed a wrong deed with the daughter of the
complainant. At that juncture, he recollected that on 1 st April, 2018 at
about 2.30 p.m., when he was proceeding on his motorcycle to his
house, he had seen that one worker was accompanying the daughter of
the complainant by holding her hand and was passing by
Mohammadiya Masjid. He knew that the said person was a worker in
the power loom unit, as he used to visit Golden Hotel for having tea.
His statement was recorded on 14th April, 2018. PW 5 has elaborated
that on 1st April, 2018 at about 2.30 p.m., when he was in his shop, he
had received a telephonic message that his uncle in Uttar Pradesh was
serious and therefore, he had rushed home to take a train to Uttar
Pradesh and since he had gone to Uttar Pradesh, there was a delay in
recording his statement. It is pertinent to note that in the cross-
examination, he has admitted that he has not submitted his railway
ticket to the police to show that he was indeed out of station for 14
days after the incident. Irshad Ansari is not examined by the
prosecution.
24 The prosecution has examined PW 6 Nitin the brother of
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the victim. He has disclosed before the Court that he used to play with
his sister in the parking, which was in front of his father's Pan Stall.
That on the day of incident also, he was playing with his sister in the
afternoon, but when they were proceeding towards their house
suddenly his sister went towards the Masjid for washing her face and
thereafter, she did not return home. He identified the person arrested
by the police as a person residing behind their house and that he was
the uncle of Saima. The prosecution has not brought on record the
identity of the parents of Saima and it is not known as to how the
accused was related to anyone called Saima.
25 PW 14 Mohammad Irfan Shaikh is not only a co-worker of
the accused, but was a room-mate of the accused and they hailed from
the same village. According to him, on 4 th April, 2018 he was on night
duty. The accused was also on night duty at the power loom. At about
1 am. in the intervening night of 4th and 5th April, 2018 he along with
the accused had been to Golden Hotel to take tea. At about 3 a.m the
accused approached PW 14 in a frightened condition and informed
him that he had seen the person who had taken away the little girl, but
he had seen him from behind and therefore could not identify him.
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Upon inquiry he also gave the name of the deceased. PW 14 had
inquired with the accused as to whether the accused had done any
misdeed. Upon denial by the accused, PW 14 told him to continue with
his work and not to take tension about the death of the deceased. After
sometime, the accused again approached PW 14 with a different story
that one person had told him to bring the victim behind the Masjid, he
obliged the person, and then he went to answer nature's call. After he
returned he could not find the victim nor the person who had asked
him to get the victim to the spot. The accused was asked by PW 14 as
to whether he would be able to identify the person if shown to him.
The accused still looked tensed and therefore, he was reassured by PW
14 not to worry, if he had not done anything wrong and that he should
mind his business.
26 PW 14 has further stated that at about 5.am in the
morning, again the accused approached him in a frightened condition
and informed him that he was the one who had committed a grave
blunder, by committing the murder of this small girl by "throttling her
neck" since her father had slapped and humiliated him for the default
of payment of the credit of rupees 1500/- and therefore, he murderd
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the child out of vengeance. PW 14 then proceeded to the adjacent
power loom unit and informed the elder brother of the accused namely
Azmatullah i.e. PW 21 about the disclosure made to him by the
accused. He also asked PW 21 to confront the accused. Accordingly,
PW 21 spoke to his brother and thereafter, he requested PW 14 not to
disclose about the act of the accused to anyone and maintain silence.
27 It is the case of PW 14 that one of his friend namely Atikur
Rehman who hailed from his village had been to visit him. Police had
learnt about Atikur Reheman's visit and thereafter, the police had
summoned him for inquiry. After returning, Atikur Reheman informed
PW 14 that the police had inquired with him about the murder of the
victim. At that juncture, PW 14 had disclosed that he knows that the
said murder is committed by Aabed and that he would inform the
police about the same. He approached the police, his statement was
recorded as per his say on 6th April, 2018 between 3 to 4 p.m.
Thereafter, his statement was also recorded under Section 164 of Cr. P.
C., which is at Exhibit 82.
28 The witness has also categorically admitted in the cross-
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examination that immediately after the said disclosure by the accused
he went to his native place at Darbhanga in Bihar state. That the
accused had not disclosed the date and time when he had committed
the murder of victim girl in his extra judicial confession.
29 It is a matter of record that Nazre Alam Shaikh was the first
person to see the dead body. He disclosed the same to Yunus about the
same. PW 15 recorded the statement of Nazre Alam Shaikh and Yunus,
but they have not been examined by the prosecution.
30 PW 18 - Dr. Bhise had performed the autopsy on the dead
body of the victim alongwith PW 4. The post-mortem notes are signed
by PW4 and PW 18. It is pertinent to note that there is a categorical
admission by PW 18 in the cross-examination that the body of the
victim was decomposed, therefore, no sign of sexual assault could be
seen. That the entire body was decomposed. There were maggots
crawling over the body and in the body. It is not mentioned in the CA
report, as to whether the sperms were alive or dead.
31 On 20th April, 2018 the accused was medically examined
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by PW 19 Dr. Ansari Summayya Shamim, who has opined that the
accused had given a history of sexual assault 20 days back. There was
no external injury on his body neither any injury on his genital portion.
On 20th April, 2018 when police had brought the accused for medical
examination, a male doctor was not available and therefore, he was
examined by PW 18.
32 The prosecution has also relied upon the evidence of PW
21 Mohammad Azmatullah who happens to be the brother of the
accused. At the time of incident, his brother Aabed and Sabid were
working in Bhiwandi. They were residing in rental premises at Gautum
Chawl separately. Irfan (PW 14) was known to him as he hailed from
their village. That Abed and Sabid shared the room with PW 14. He
has admitted that on 5th April 2018 at about 6 a.m. Irfan met him and
disclosed to him the dialogue between himself and the accused. He
requested him to meet the accused immediately. Therefore, he went to
meet his brother Abed, but he found him sleeping. Later upon inquiry,
Abed disclosed to PW 21 that he had admitted his guilt before Irfan. At
that time, Abed was in a frightened condition. PW 21 abused him, left
the spot and slept in his own room. On the same day, it appears that
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Shabbir had requested PW 21 to talk to his mother about the act of
Abed. However, since he was tensed, he did not have courage to talk to
his mother. But on next day, he called upon his mother who inquired
with him as to whether it was true that Abed had committed the
murder of a small girl. He answered in the affirmative. She then
informed him that Abed was to reach the village and he had left
Mumbai by Chappra Express. PW 21 was constrained to divulge the
said information to the police and at the same time, assured the police
that he would co-operate in the process of arresting the accused. His
statement was recorded on 6th April, 2018 and on 7 th April, 2018 he
proceeded to his native place along with the police. Upon reaching
home, they learnt from the family members that Abed was sent to
village Ganeshpura to the house of his grandmother.
33 That another brother of PW 21 namely Jabed cooperated
with the police and accompanied them to the house of his
grandmother. The accused was apprehended. Upon inquiry, the
accused had admitted his guilt before the police. The accused along
with PW 21 was brought to Bhiwandi. PW 21 has then added that the
accused had also admitted to have sexually assaulted the girl. It is
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pertinent to note that the statement of PW 21 was recorded on 14 th
April, 2018. His statement was also recorded under Section 164 of Cr.
P. C and is at Exhibit 105. It is elicited in the cross-examination that on
the day when PW 21 was informed by PW 14 about the confession
made to him, he had not immediately verified the truthfulness of the
said statement from his brother. PW 21 had no knowledge about the
accused chewing pan, but one day he found his brother under the
influence of alcohol and as an elder brother, he had promptly sent him
to their native place with a further note of caution that he shall not
return to Mumbai ever again. PW 21 had also not inquired with the
owner of the Power Loom.
34 PW 22 Rajendra Maine was attached to Bhoiwada Police
Station as a police inspector and on 4 th April, 2018 investigation in
Crime No. 47/2018 was entrusted to him. The investigation in the
missing complaint was with PSI N. D. Jadhav. According to PW 22, on
4th April, 2018 Nazre Aalam had seen the dead body and had
disclosed about the same to the people in the vicinity by shouting
loudly. The father of the girl learnt about it from some children playing
in the vicinity and identified the body to be that of his daughter and
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informed the police. PW 22 had immediately taken steps and
conducted the inquest panchnama, spot panchnama and seizure of
clothes of deceased and then the body was sent for postmortem. On 6 th
April, 2018 the investigating agency had learnt from reliable sources
that a worker in the power loom i.e Aabed had confessed before his co-
worker Irfan about his role in the commission of the murder of child.
The police therefore called upon Irfan and recorded his statement on
6th April, 2018. The statement of Irfan was also recorded under
Section 164 of Cr. P. C. (exhibit 82). The police learnt from Irfan
(PW14) that the brother of the accused Abed was also intimated about
the act committed by Abed and therefore, the statement of the brother
of the accused was also recorded under Section 161 and 164 of Cr. P.
C. Another brother of the accused namely Sabir was also summoned by
the police and his statement was recorded under Section 161 and 164
of Cr. P. C. The police had learnt that after confessing before PW 14,
the accused had left for his native place and therefore, the police along
with PW 21 went by flight to Patna. The accused was then arrested at
Seapol, Ganeshpuragaon. The accused was then produced before the
court at Dharbhanga and transitional custody was obtained. The cell
phone of the accused was seized vide panchnama Exh.108.
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35 The accused is said to have disclosed before the police that
he would show them the place where he had sexually assaulted the girl
and killed her by crushing her head with a stone. The stone was
recovered at the instance of the accused. The panchnama was also
recorded in respect of the recovery of stone. On 13 th April, 2018 the
clothes (pant) was recovered at the instance of the accused u/s. 27 of
Evidence Act, from the power loom of Akram Shaikh. The police had
observed some stain on the inner side of the pant. The shirt of the
accused was seized from the residence of the accused in Gautum
Chawl.
36 In fact, the advance death certificate was in the possession
of the police on 11th April, 2018 itself. It is admitted by PW 22 that
there was also an inquiry with Irfan regarding his involvement in the
present case. But, no separate report is filed along with the charge-
sheet in respect of outcome of the said inquiry. After completion of
investigation, the charge-sheet was filed on 6th July, 2018 for the
offence punishable under Section 363, 302, 201, 364, 366-A and 376
of Indian Penal Code and Section 4, 8, 9(h) of Protection of Children
from Sexual Offenses Act, 2012.
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37 The learned Counsel for the Respondent has vehemently
submitted that prosecution has failed to substantiate the charges
levelled against the appellant. The learned Counsel has highlighted the
observations in the post-mortem report and has submitted that there
are no injuries on the private part of the victim. Column No. 15 of the
post-mortem report indicates that no injuries were observed on the
external genitals of the victim. All this, coupled with the fact that
autopsy surgeons PW 4 and PW 18 had expressed their inability to give
an opinion about sexual assault in their written opinion dated 20th
June, 2018 and had further opined that it would be possible to give the
said opinion only after receipt of the CA report. The CA report does not
show the stains of semen on the frock of the deceased, but at the same
time, it also indicates that human semen of inconclusive grouping was
found on the frock. It is therefore, urged that the conviction for sexual
assault for the offence under Section 376 (2) (I) of Indian Penal Code
and the provision of Protection of Children from Sexual Offences Act,
2012 is based on an inconsistent CA report. The blood samples were
not sent for DNA analysis. That the injury on the thighs are caused by
the thorny bushes, which had to be cut to facilitate the removal of the
body from the thorny bushes.
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38 The evidence of PW 5 cannot be relied upon, as the
statement of PW 5 was recorded 5 days after the arrest of the accused.
In light of the timing mentioned in the missing complaint, the evidence
of PW 5 cannot be relied upon, as PW 5 claims to have seen the child
in the company of accused at 2.30 p.m., but in fact, the complainant
was at home till 4.00 p.m.. Moreover, PW 5 had referred to a worker in
the power loom. There are more than two power looms in the same
area. He has not stated in detail about the power loom in which the
said person was working. No test identification parade was held. That
PW 5 claims to have seen the child in the custody of the accused, while
he was passing by on his motorcycle, which is highly impossible. That
the people in the vicinity have not been examined and hence, no
reliance can be placed on the uncorroborated testimony of PW 5.
39 That the extra judicial confession also cannot be relied
upon, as the accused is alleged to have confessed that he had killed the
victim by throttling, but after the receipt of the postmortem report on
11th April, 2018, the accused is alleged to have stated that he had
killed the victim by crushing her head with a stone. That, the extra
judicial confession has to be read as a whole. There is no evidence of
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throttling. Extra judicial confession is a weak piece of evidence and has
to be considered with abundant caution. The recovery of a stone under
Section 27 of the Indian Evidence Act also cannot be relied upon for
the simple reason that the scene of offence panchnama was drawn on
4th April, 2018 itself and the spot was seen by all. The stone was lying
on the same spot. The said stone was not shown to the autopsy
surgeon.
40 The motive for the commission of the offence had not been
proved. The complainant had no record to show that the accused was
indebted to him. That the complainant had slapped the accused almost
10 months prior to the incident and that there was no immediate
trigger for the commission of the offence.
41 It is also submitted that just because the accused had left
for his native place and was arrested there, it cannot be said to be an
incriminating circumstance. PW 14 had also left for his native place in
Bihar soon after the dead body of the deceased was found. That the
evidence of sexual assault and rape is a fabricated piece of evidence.
The motive was stale and the act of absconding are mere fragments
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which do not form a complete chain of circumstances. The accused
was provided legal aid after two witnesses were examined and the
same has caused prejudice to the defence of the accused. It is therefore
prayed that the conviction of the accused for the offences with which
he was charged be quashed and set aside. The accused deserves to be
acquitted since the prosecution has failed to establish the guilt of the
accused beyond reasonable doubt. The Learned Counsel for the
Respondent has placed reliance on the following judgments of the
Apex court :
1) Shivaji Shaebrao Bobde vs. State of Maharashtra1.
2) Shankarlal Gyarasilal Dixit vs. State of Maharashtra2.
3) Sharad Birdhichand Sarda vs. State of Maharashtra3.
4) Sevantilal Karsondas Modi vs. State of Maharashtra4.
5) Sahadevan and anr vs state of Tamil Nadu5.
42 Per contra, Ld. APP has submitted that the judgment of the
trial court calls for no interference. That the injuries on the inner part
1 (1973) 2 SCC 793.
2 AIR 1981 SC 765.
3 AIR 1984 SC 1622.
4 (1979) 2 SCC 58.
5 (2012) 6 SCC
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of the thighs is a sufficient indication of sexual assault. That the body
was found in a decomposed state with arms and legs amputated. PW 4
and PW 18 were unable to give an opinion about sexual assault in the
absence of CA report because the body was highly decomposed and
therefore, signs of sexual assault were not visible. Semen stains were
found on the inner side of the pants of the accused. Finding of human
semen of inconclusive grouping on the frock is sufficient evidence by
itself to arrive at a conclusion that the accused is guuilty of the offence
which he disclosed to P.W. 14. The remark that there was absence of
semen on the frock of the victim could be genuine typographical error
and hence, no benefit can be extended to the accused. That the traces
of DNA were wiped out since the victim was preyed upon by animals.
The Ld. APP submits that there is ample evidence about sexual assault
and rape.
43 It is further submitted by the learned APP that the accused
had motive to kill the victim and the same is brought to light by none
other than the accused. The circumstance of the last seen is established
through the evidence of PW 5. The admission of PW 1 that the victim
had visited his shop at about 12 'O' clock needs to be taken into
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consideration. That in the absence of effective cross-examination, no
grounds can be raised in the appeal to hold that PW 1 has seen his
child during the time he was at home i.e in the afternoon between 2 to
4 p.m. The extra judicial confession cannot be proceeded with a notion
that it is a weak piece of evidence and has to be appreciated in the
facts of a case. That the accused had made an extra judicial confession
to a person who hailed from his native village, was his roommate, a co-
worker and a good friend. The accused had reposed faith in PW 14 and
had therefore admitted his guilt to him. The extra judicial confession is
voluntary and truthful. That the mode of commission of offence is
unveiled in the course of interrogation and that would establish that
the accused is the perpetrator of the crime. PW 14 had no reason to
falsely implicate the accused. The act of absconding soon after the
recovery of dead body incriminates the accused and is incompatible
with his innocence.
44 The Ld. APP had also filed an affidavit of the investigating
officer PW 22 Rajendra Maine to justify the sentence of death penalty
and has submitted that the accused had committed a ghastly act and
he is beyond reformation or rehabilitation. The accused does not
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deserve any sympathy, since he has committed a brutal, grotesque and
barbaric act. He deserves to be eliminated from the society. The APP
has lastly prayed that the criminal reference be answered in the
affirmative by upholding the sentence of death penalty. Ld. APP has
relied upon the following cases:
1) State of Uttar Pradesh vs. Satish6,
2) Raja vs. State by The Inspector of Police7,
3) Sanatan Naskar and Another vs. State of West Bengal 8,
4) Vivek Kalra vs. State of Rajasthan9,
5) Nishi Kant Jha vs. State of Bihar10.
45 With the help of the Learned APP Mr. Sait and the Learned
Counsel Miss Payoshi Roy for respondent, we have perused the
evidence on record meticulously. On 1st April, 2018 the eldest son of
the complainant rushed to his father at the Pan Stall at about 6 p.m.,
and informed him that his younger sister had gone to play at 4.30
p.m., but has not returned home till 6.00 p.m. It is the specific case of
6 (2005) 3 SCC 114.
7 (2020) 15 SSC 562.
8 (2010) 8 SCC 249.
9 (2014) 12 SCC 439.
10 (1969) 1 SCC 347.
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the complainant that the shops remained closed between 2.00 p.m. to
4.00 p.m, and that he had left the house only at 4 p.m. It is specifically
mentioned in the missing complaint that she had left the house as
usual, at 4.30 p.m., to play on the ground just behind their house.
Exhibit 7 is the first report in point of time which indicates the time of
the victim leaving the house and there is no reason to draw any
hypothesis that the father i.e. the complainant had not met his
daughter in the afternoon break. Since it was summer season, the
parents would not leave the children to play in the scorching
afternoon. There is no ambiguity in respect of time and it is clear that
the victim had left the house only at 4.30 p.m.
46 The evidence adduced by the prosecution to the extent that
PW 5 had seen the victim at 2.30 in the afternoon in the company of
accused needs to be dealt with by caution. PW 5 was only knowing the
accused as a worker in the power loom industrial unit. There were
several persons in the said unit. The statement of PW 5 is recorded on
14th April, 2018. There is no material on record to show that he was
out of town for 14 days. No test identification parade is held and in the
absence of any corroboration, it would be difficult to consider the said
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contention of PW 5 that he had seen the deceased in the company of
the accused. The submission of the Learned Counsel for the
Respondent that in such cases the investigating agency has to ensure
that the lacuna cannot be filled up subsequently, needs to be taken into
consideration. Hence, we disbelieve PW 5 on the point of the evidence
of "last seen". The uncorroborated testimony of PW 5 would not
inspire the confidence of the court. PW 5 appears to be a got up
witness only in order to create a chain of circumstances.
47 The evidence of PW 6 appears to be recorded only to be in
tune with the evidence of PW 5. It is the case of PW 6 that on their
way home, his younger sister had suddenly dissociated with her
brother PW 6. The exact time of the deceased leaving the company of
her brother has not been mentioned by PW 6. That even when the
parents were frantically searching for this missing girl, PW 6 had not
informed his parents that she had run away towards the Masjid. In fact
the parents should have inquired with PW 6 about the juncture at
which she had left his company and with whom. There is a reference
to Saima in the evidence of PW 6 who claims to have seen the accused,
but her lineage has not been brought on record. The evidence of PW 6
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does not even remotely indicate that the accused was seen in the
vicinity of the chawl soon before the victim went missing.
48 In the present case, the prosecution seeks confirmation on
the following grounds :
1) Motive
2) The extra judicial confession as was made to PW 14
3) Last seen with the accused as per the evidence of PW 5
4) The postmortem report
5)Recovery of the clothes of the accused.
6) The CA report
7) Abscondance of the accused from Mumbai.
49 As far as motive is concerned, PW 1 did not even remotely
recollect that he had ever slapped someone much less the accused who
is likely to take vengeance. PW 1 did not have any written account to
show that the accused owed Rs. 1500/- to him and on failure to pay he
had slapped him. According to PW 1, the account was maintained by
the accused himself. In the course of investigation, there is no recovery
of any document to show that the accused had maintained the
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account. It is true that the motive was stale. Motive for committing a
particular criminal act is in the mind of the perpetrator of the crime
and it is not necessary that the victim would have any knowledge
about the same. PW 1 also may have never imagined that such a stale
incident may be still lingering in the mind of the accused. It appears
that the said motive has come to light only from the accused as
disclosed for the first time in his extra judicial confession to PW 14.
50 In fact, PW 14 appears to be a good friend of the accused
and they hailed from the same place. That when PW 14 came to
Mumbai and was unemployed, it was the accused who had introduced
him to the owner of the power loom and had secured a job for PW 14.
The accused shared the room with PW 14 and not with his own
brother. The incident is of 1st April. The accused continued to work till
4th April, 2018. On 4th April, 2018 the dead body of the victim was
found sometime in the afternoon and that disturbed the accused, he
must have apprehended that the police may reach up to him. The
guilty mind needed some respite and there was a frail hope that the
good friend may be of some assistance, who would suggest some way
out. He hoped that PW 14 would turn out to be a good Samaritan. The
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accused had first made up stories that he had seen the person who had
committed the offence of murder, but would not be able to identify
him, since he saw him from behind. He then made up a story that he
had left the child with an unknown person, but when PW 14 assured
him that he should not worry as long as he had not done anything
wrong. But he could not carry any more burden on his young heart. It
was only at that juncture that the accused had to give a vent to his
anguish and therefore, disclosed that he had committed the murder of
the child by throttling her. Upon further inquiry, he disclosed that the
father of the victim had assaulted him for non-payment of Rs. 1500/-
and therefore, he killed his daughter. We may extract the said
confession in the words of the accused, "bacchhi ka jo murder huva
hay, use gala dabake maine hi mara". He further added "uske baapne
mereko pandhraso rupaey ke liye mara tha isiliye maine uske bacchi
ko mara."
51 It is pertinent to note that in the first extra judicial
confession there is no reference to having committed rape or the act of
killing with a stone. The accused had reposed faith in PW 14 hoping
that he would help him since he had admitted that he has committed a
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blunder. In his words, he has said, " Irfan bhai, mere se ek bahut badi
galti ho gayee hai." but the whole episode took a different turn when
PW 14 approached the brother of the accused and informed him about
the extra judicial confession made to him by the accused. He even
asked his brother PW 21 to verify from the accused.
52 It is true that an extra judicial confession is considered as a
weak piece of evidence by itself. In a catena of decisions, the Supreme
Court has laid the principle which would guide the judicial mind while
dealing with various cases where the prosecution places implicit
reliance upon extra judicial confession. All that is required is that the
said confession should be voluntary. It should be truthful, it should
inspire the confidence of the court. It should not suffer from any
inherent probabilities or suffer from material discrepancies and it
should be supported by cogent circumstance.
53 In the case of Chhittar vs State of Rajashthan11, the
Supreme Court has held as follows:
"the extra judicial confession should be taken as a whole
11 AIR 1994 SC 214
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and should not suffer from any infirmity even if it is to be
acted upon."
In the present case the accused has confessed that he had killed the
girl by throttling in order to satisfy his vendetta against the father of
the deceased. The motive was known to the accused alone. The
confession was made voluntarily, free from threat and inducement and
therefore, it carries with it the presumption of truth. It is not known as
to why the statement of the accused was not recorded before a judicial
magistrate.
54 The submission of the Learned Counsel for the Respondent
that extra judicial confession is a weak piece of evidence is
controverted by the Learned APP by relying upon the judgment of the
apex court in the case of State of Rajasthan vs Rajaram12, wherein the
Apex Court has held as follows:
"an extra judicial confession, if voluntary and true and
made in a fit state of mind, can be relied upon by the
court. The confession will have to be proved like any
other fact. The value of the evidence as to confession,
like any other evidence, depends upon the veracity of
the witness to whom it has made. The value of the
12 (2003) Cr. L. J. 3901
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evidence depends on the reliability of the witness who
gives the evidence. It is not open to any court to start
with the presumption that extra judicial confession is a
weak type of evidence. It would depend on the nature of
the circumstance, the time when the confession was
made and the credibility of witnesses who speak to such
a confession. Such a confession can be relied upon and
conviction can be founded there on if the evidence about
the confession comes from the mouth of witnesses who
appeared to be unbiased, not even remotely inimical to
the accused, and in respect of whom nothing is brought
out which may tend to indicate that h may have a
motive for attributing an untruthful statement to the
accused, the words spoken by the witness are clear
unambiguous and unmistakably convey that the accused
is the perpetrator and nothing is omitted by the witness
which may militate against it. If the evidence relating to
extra judicial confession is found credible after being
tested on the touch stone of credibility and acceptability,
it can solely form the basis of conviction. The
requirement of corroboration is a matter of prudence
and not an invariable rule of law. It is improbable that
the accused would repose confidence on a person who is
inimically deposed towards him and confess his guilt."
55 In the present case, the accused could not repose faith in
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his brother due to past experience, as is brought on record by PW 21
himself. According to PW 21, on one occasion, he had found the
accused under the influence of alcohol and had sent him back to the
native place, where he stayed for eight months. But as far as PW 14 is
concerned, the accused felt that he would cause no harm and may find
a solution and therefore, he had reposed faith in him after telling him
the truth. But, PW 14 divulged to the brother of the accused all that
was told to him in good faith and further asked him to verify the same
from the accused. The accused therefore, had no option and was
constrained to leave Mumbai for his native place. There is no material
on record to show that PW 14 or the brother of accused had any
animus against him. They co-operated with the police so much so that
the brother of the accused accompanied the police to their native
village and co-operated with the police in arresting the accused.
56 The evidence of P.W. 3 that P.W. 14 had disclosed to him
that the accused had made a voluntary confession about his guilt is not
spelt out by P.W. 14. All that is established is the disclosure spelt out by
P.W. 14. All that is established is the disclosure made to P.W. 21 by P.W.
14.
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57 In this backdrop, we are of the opinion that the 1st extra
judicial confession made to PW 14 is voluntary and truthful. And it is
not necessary to presume at the threshold that it is a weak piece of
evidence.
58 After being confronted by PW 21 within a few minutes of
making the extra judicial confession, the accused was sure that there
was no escape and therefore, early in the morning, he fled to his native
place. This conduct of the accused needs to be appreciated under
Section 8 of Indian Evidence Act. It is true that abscondance by itself
would not be an incriminating circumstance and certainly cannot form
a foundation for conviction. Some people escape from the scene of
offence or run away from the public view after they apprehend
unwarranted suspicion. That could be a case of self preservation,
especially when there is an apprehension that one may be falsely
implicated. But, in a case like a present one, there was no occasion to
falsely implicate the accused. The accused was not harbouring under a
cloud of suspicion and in fact, he was the one who by his extra Judicial
confession brought the motive to light and voluntarily admitted before
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PW 14 that he had committed the offence. And after being confronted
by PW 21 he went to his native place.
59 From 1st April to 4th April, 2018, the dead body was not
found and therefore, he could pretend to be normal, but the day the
dead body was found, anguish and guilt had engulfed him and hence,
he confessed before PW 14 voluntarily and therefore the abscondance
of the accused assumes significance. There was no urgency for the
accused to visit his native place, that too without informing his own
brother. The accused under Section 313 of Code of Criminal
Procedure, 1973 has also not given any plausible explanation for his
disappearance from Bhiwandi over night.
60 In the case of Matru Alias Girish Chandra Vs. State of UP13,
the Supreme Court has held that -
"mere abscondance by itself does not necessarily lead to a
firm conclusion of a guilty mind. Even an innocent mind
may feel panicky and try to evade arrest when wrongly
suspected of a grave crime such is the instinct of self
preservation. The act of absconding is no doubt relevant
13 AIR 1971 SC 1050,
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piece of evidence to be considered along with other
evidence but its value would always depend on the
circumstance of each case. Normally the courts are
disinclined to attach much importance to the act of
absconding, treating it as a very small item in the evidence
for sustaining conviction. It can scarcely be held as a
determining link in completing the chain of circumstantial
evidence which must admit of no other reasonable
hypothesis then that of the guilt of the accused."
In the present case, there was no question of self-
preservation, much less, the complainant had suspected the accused of
having committed the offence. It therefore, becomes one of the
determining links in completing the chain of circumstantial evidence.
61 An arithmetical exactitude cannot be read into an extra
judicial confession. All that needs to be seen is that, it was not induced
by threat or coercion or any compulsion to divulge the commission of
an offence.
62 The prosecution has also placed reliance upon the evidence
of PW 5. His evidence needs to be considered with abundant caution
for the following reasons:
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I) According to PW 5, he saw the victim in the company of the
accused at about 2.30 p.m. The evidence of PW 1 does not
even remotely indicate that the girl was not indoors at 2.30
p.m. In fact, the missing complaint is sufficient to indicate that
the victim had left the house at about 4.30 p.m. i.e. after PW 1
had left the house at 4.00 p.m. PW 6 also does not inform his
parents that the victim had gone towards Masjid for washing
her face in the afternoon. And therefore, it is difficult to accept
that the child was missing since afternoon.
II) The statement of PW 5 is recorded on 14th April i.e. after
the arrest of accused on 10th April.
III) PW 5 claims to know the accused as a worker in a power
loom unit. He did not know the name of the accused nor the
industry in which he was working. He had seen the accused in
the custody of the police and then recollected that he had seen
him with a small girl two weeks prior to 13 th April 2018. None
of the shop owners in the vicinity had seen the accused but PW
5 who was passing on a motorcycle claims to have had a
glimpse of the accused when he was driving a motorcycle and
recollected the whole episode. It is not even the case of PW 5
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that he was acquainted with PW 1.
IV) He has not produced any material on record to show that
he was not in Bhiwandi from 1st April to 13th April.
V) On 13th April also he simply says that he saw the accused
in the custody of the police when he was sitting in the Golden
Hotel. The time is not mentioned and it is not known as to
why the police had taken the accused to Golden Hotel.
Moreover the map at exhibit 113 shows that the road to
Mohammadi Masjid is very close to the Pan Stall of PW 1 and
that it is a secluded road to reach the scene of offence. On
13th April, the accused was taken to the power loom for the
recovery of the clothes worn by him at the time of incident,
but at that time, they had proceeded in a police Jeep.
According to PW 22, there was no occasion for PW 5 to even
see the accused in the custody of police. Exhibit 115 and 116
are the maps by which the police had taken the accused to the
power loom for recovery of his pant. That on the same date
and same time the pant is recovered from the Power Loom and
the shirt which he had worn at the time of incident was
recovered from his residential room at Gautum Chawl. It
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cannot be ignored that he was sharing the room with four
others. In the Power Loom also there were 16 workers and
only one pant was found hanging behind the door. It is in this
back drop that the evidence of PW 5 or the recovery of the
clothes of the accused would not inspire the confidence of the
court.
63 In view of the above discussion, the question as to whether
the victim was sexually assaulted or raped before she was killed falls
for consideration.
64 The postmortem notes at Exhibit 52 shows some contusions
on the inner side of the thighs and incised wound on the left thigh
lower third region of the victim. The Learned APP vehemently submits
that it is a sufficient indication of having been sexually
assaulted/raped. That column No. 15 of the postmortem notes reads as
follows:
" no injuries to external genitals, no purging."
Column Nos. 10 to 13 show that postmortem lividity cannot be
appreciated as vaginal orifice dilated with protrusion of cervice flabby.
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65 P.W. 4 Dr. Vedpathak stated in the examination-in-chief that
the contusions and incised wounds over both the thighs of the body
are caused due to sexual assault. In the same breath, PW 4 states that
by a letter at Exhibit 51, the police had put up a query as to whether
the victim was sexually assaulted. However, PW 4 as well as Dr. Bhise
reserved their answer to the said question as they could not ascertain
the same in the absence of CA report. That only after receipt of CA
report a positive opinion was given about sexual assault. This makes it
clear that upon external and internal examination an opinion of sexual
assault could not be given. The Court cannot be oblivious of the fact
that the body was exposed to rough weather and animals for four days.
The body was found in thorny bushes. The thorny branches/stems had
to be cut before the dead body was removed from the thorny bushes.
The injuries to the thighs could have been caused by the thorny
bushes.
66 The clothes of the deceased were sent to forensic
laboratory for testing. The frock is marked as Article 4, whereas her
undergarment was marked as Article 5. The result of analysis would
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show that no semen is detected on Exh. 123. Thereafter, the result of
analysis of species origin and blood grouping result was done, which
shows semen - human - inconclusive. In this respect, it needs to be
appreciated, column Nos. 10 and 12 of the postmortem notes read as
follows:
"No fluid oozing from nose, ears, neck and rest of body
shows adipocere formation with yellowish color and rancid
smell perceived with multiple maggots"
In fact, 'adipocere' is grave wax which may appear on a corpse. Paste
like 'adipocere' is also known as 'corpse wax' which is the product of
the decomposition of 'adipocere' tissues. As per Dr. Ronal Munro,
author of Forensic Medicine in Animal Abuse and Unlawful Killing
states that 'adipocere' is caused by hydrolyses and hydrogenation of
'adipocere' leading to the formation of a waxy substance. It is off-white
in colour, but can become stained with hemoglobin and other products
of the putrefactive process. Preferential formation of 'adipocere' has
been observed in body parts with open wounds. 'Adipocere' is a
wax-like organic substance formed by the anaerobic bacterial
hydrolyses of fat in tissue such as body fat in corpses. In it's formation
putrefaction is replaced by a permanent firm cast of fatty
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tissues, internal organs and the face.
67 PW 18 has also stated categorically as follows:
"it is true to say that said body was decomposed, therefore
no signs of sexual assault were seen."
Dr. Bhise has further stated that he had given the final
cause of death as, " death due to head injury with fracture of
underlying skull with sexual assault (Unnatural)". But Dr. Vedpathak
who conducted the postmortem along with Dr. Bhise has categorically
stated that sexual assault could not be determined in the absence of CA
report.
68 In view of the CA report, an inference needs to be drawn
that the opinion of sexual assault upon the victim could either be
erroneous or misconceived. Column No. 8 of post-mortem notes
(exhibit 52) shows that the clothes on the person of the deceased were
wet due to decomposition fluid of dead body. Learned APP has termed
the findings in the CA report as "genuine typographical mistake". We
are at pains to consider the said submission. It is incumbent upon the
prosecution to substantiate that there was rather sexual assault upon
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the victim before she was done to death.
69 It is pertinent to note that the post-mortem notes were
received by the investigating officer on 11th April, 2018 and on 11th
May, 2018 the statement of PW 1 is recorded under Section 164 Cr. P.
C., wherein he had stated that in the course of interrogation, at the
police station in the presence of PW 1, the accused had stated that on
the day of incident, he was under the influence of alcohol, he was
deprived of self control, he saw the victim coming out of the Masjid, he
therefore, took her to the open ground, committed sexual assault
thereafter, he strangulated her and then assaulted her with a stone on
her head.
70 A confession given in the police station is not admissible as
it is under coercion or a pressure exerted upon the mind of the accused
by the police and hence, the improved extra judicial confession cannot
be taken into consideration. It is apparent on the face of the record
that subsequently the extra judicial confession has changed its tenor
and therefore, all that needs to be taken into consideration is the first
extra judicial confession made to PW 14, as it appears to be voluntary,
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truthful, inspires confidence of the court and it is corroborated by the
evidence of abscondance of the accused soon after making a extra
judicial confession. The first confession assigns motive, the act and the
manner of commission of the offence.
71 The Learned Counsel for the Respondent has vehemently
submitted that the medical evidence belies the first confession, since
there is no evidence of throttling and strangulation, whereas medical
evidence shows that the cause of death is "due to dead injury with
fracture of underlying skull with amputation of both upper
extremities"
72 We are of the opinion that the accused may have throttled
her and pushed her into the bushes and she must have fallen on her
head. This observation of ours is supported by medical evidence,
wherein the doctor has specifically stated that the injury was caused
due to falling on the stone. The injury is on the occipital region and
therefore, the possibility that the stone was thrown on the head of the
victim after she fell down is ruled out. Hair was found on the stone,
which was well within the bushes. The inquest panchnama shows that
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the branches of the thorny bushes had to be cut to retract the dead
body from the bushes. There is no corroborating material to show the
accused must have entered the bushes, since there were no scratches
or abrasion on his body or face, which could have been otherwise
observed by his co-workers and police when he was arrested. The fact
that the stone was in the bushes is corroborated by the fact that the
recovery of the said stone is shown under Section 27 of the Indian
Evidence Act on 13th April 2018. It therefore, appears that the accused
nurtured the belief that he has caused the death by throttling. It is true
that the hyoid bone is intact. All that needs to be seen is the admission
of guilt and motive to commit the offence.
73 Learned Counsel for the Respondent has drawn our
attention to the statement recorded under Section 313 of Code of
Criminal Procedure, 1973 and has submitted that Question Nos. 15
and 16 of the 313 statement of the accused apparently seemed to be a
misleading question. The question reads as follows,
"Q.15 : It has further come in his evidence that, he came
to know from police that you committed the rape and
murder of Miss "X" and therefore police visited at
karkhana and seized your clothes i.e. pant, shirt and
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baniyan from karkhana. He also issued attendance
register to the police. It was sealed. When said register
shown to him he identified it before the court. What have
you to say about it?"
In fact, what was seized from the karkhana was only pant and the shirt
was seized from his house.
"Q.16. It has further come in his evidence that, Irfan came
on the work and told him that you told to the Irfan
that you have committed rape and murder of Miss "X"
and therefore, you ran away at your native place.
Therefore, said witness narrated said incident to the police
and accordingly, police recorded his statement. He
identified you before the Court. What have you to say
about it?"
In fact the accused had disclosed to Irfan that he had committed the
murder of victim by throttling.
74 At the same time, the mitigating circumstances also need to
be considered as far as the accused is concerned, it needs to be
considered that he must have never had a safe, loving atmosphere in
his house. Due to the economic stringency, he had started working at
the age of 18 to earn his living. There was no love lost between the
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siblings. His own brother had no knowledge that he was ever slapped
by someone. But at the same time, the act committed by him is brutal
and deserves no leniency. Although the offence is barbaric and heinous,
what falls for consideration is whether death penalty is the only
punishment that needs to be imposed. The State has failed to bring
before us any material to show that there is no scope for reformation
or rehabilitation. In the case of Mofil Khan and anr. v/s. The State of
Jharkhand14, the Apex Court has held that -
"8. One of the mitigating circumstances is the probability of
the accused being reformed and rehabilitated. The State is
under a duty to procure evidence to establish that there is
no possibility of reformation and rehabilitation of the
accused. Death sentence ought not to be imposed, save in
the rarest of the rare cases when the alternative option of a
lesser punishment is unquestionably foreclosed (See:
Bachan Singh v. State of Punjab9). To satisfy that the
sentencing aim of reformation is unachievable, rendering
life imprisonment completely futile, the Court will have to
highlight clear evidence as to why the convict is not fit for
any kind of reformatory and rehabilitation scheme. This
analysis can only be done with rigour when the Court
focuses on the circumstances relating to the criminal, along
14 RP(Criminal) No. 641/2015 in Criminal Appeal No. 1795/2009 dated
26/11/2021
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with other circumstances (See: Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra(2009) 6
SCC 498). In Rajendra Pralhadrao Wasnik v. State of
Maharashtra(2019) 12 SCC 460, this Court dealt with the
review of this Court confirming death sentence and
observed as under:
"45. The law laid down by various decisions of this Court
clearly and unequivocally mandates that the probability (not
possibility or improbability or impossibility) that a convict
can be reformed and rehabilitated in society must be seriously
and earnestly considered by the courts before awarding the
death sentence. This is one of the mandates of the "special
reasons" requirement of Section 354(3) CrPC and ought not
to be taken lightly since it involves snuffing out the life of a
person. To effectuate this mandate, it is the obligation on the
prosecution to prove to the court, through evidence, that the
probability is that the convict cannot be reformed or
rehabilitated. This can be achieved by bringing on record,
inter alia, material about his conduct in jail, his conduct
outside jail if he has been on bail for some time, medical
evidence about his mental make-up, contact with his family
and so on. Similarly, the convict can produce evidence on
these issues as well."
It is a settled cardinal principle that it is not just a crime which the
Court should take into consideration but also the criminal, the state of
his mind, his socio economic background.
75 It is incumbent upon the courts to take into consideration
reformation, rehabilitation and reintegration of convict into society.
The Supreme Court in catena of decision has guided lower court to
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take into consideration criminals and not the crime alone. A Court will
have to decide as to whether the case falls into the category of "rarest
of rare cases". In the present case, we are of the opinion that the case
of the appellant does not fall into the category of the rarest of rare
case. We have also considered that this is not a case where any other
sentence is unquestionably foreclosed. The material on record
indicates that the appellant is not a hardened criminal and therefore,
there is every hope that he could be reformed, rehabilitated and
reintegrated into the society.
76 We are guided by the observations of the Apex Court in the
case of Sachin Kumar Singhraha v/s. State of M.P.15. The Supreme
Court has held as follows :
"23. However, in our considered opinion, the courts
may not have been justified in imposing the death sentence
on the accused-appellant. As has been well settled, life
imprisonment is the rule to which the death penalty is the
exception. Death sentence must be imposed only when life
imprisonment appears to be an altogether inappropriate
punishment, having regard to the relevant facts and
circumstances of the crime. As held by this Court in the
15 (2019) 8 SCC 371
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case of Santosh Kumar Singh v. State through C.B.I.,
(2010) 9 SCC 747, sentencing is a difficult task and often
vexes the mind of the Court, but where the option is
between life imprisonment and a death sentence, if the
court itself feels some difficulty in awarding one or the
other, it is only appropriate that the lesser punishment be
awarded.
24. We have considered the aggravating and
mitigating circumstances for the imposition of the death
sentence on the accused/appellant. He has committed a
heinous offence in a premeditated manner, as is indicated
by the false pretext given to PW 4 to gain custody of the
victim. He not only abused the faith reposed in him by the
PW 4, but also exploited the innocence and helplessness of
a child as young as five years of age. At the same time, we
are not convinced that the probability of reform of the
accused/appellant is low, in the absence of prior offending
history and keeping in mind his overall conduct."
77 The accused is an young man. At the time of commission of
the offence, the accused was hardly 20 years of age. Satisfaction of
personal vendetta had overpowered him momentarily and in that
moment of deprivation of self control, he had committed the offence.
What needs to be appreciated and take into consideration is his first
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statement before PW 14 which is to the extent that he had committed
a grave blunder which in his own words is as follows, " mujhse bahut
badi galti huwi hai." this expression by itself would demonstrate the
remorse which he was going through. It was a realization and
repentance for having committed the offence unthoughtfully. It is true
that a small child was victimized and was made a subject of the hostile
and diabolical act of the appellant, the said act cannot be forgiven by
considering the age of the accused alone.
78 It is not a case of false implication or mistaken identity the
act is brought to light by none other than the accused and the said
material in the form of extra judicial confession has surfaced and
consequently brought to the notice of investigating officer who
promptly arrested the accused at his native place with the help of none
other than the brother of the accused himself. The family of the
accused had also not made any efforts to cause disappearance of
evidence or the disappearance of the accused, no attempts were made
by the accused or family members to win over PW 14 who hailed from
the native place of the accused. The brother of the accused has
supported the prosecution. That the accused was given legal aid to
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defend himself but the said aid was extended to him after examination
of two witnesses. The accused has no criminal antecedent. It would be
obligatory on the part of the prosecution to substantiate that
reformation and rehabilitation of the convict is impossible and that the
accused deserve to be eliminated.
79 In the case of Sangeet & Anr v/s. State of Haryana16, the
Supreme Court has held that -
"In the sentencing process, both the crime and the criminal
are equally important."
Therefore, while considering the prelude to the offence, we cannot be
oblivious of the guidelines of the Supreme Court in the cases of
Bachan Singh v/s. State of Punjab 17, Santosh Bariyar v/s. State of
Maharashtra18, Rajendra Wasnik v/s. State of Maharashtra19.
80 The age of the accused needs to be taken into
consideration. He was hardly 20 years of age at the time of
commission of the offence. The fact that he had confessed about his
16 (2013) 2 SCC 452.
17 (1980) 2 SCC 684.
18 (2009) 6 SCC 498.
19 (2019) 12 SCC 460.
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guilt would show that he had repented for the act committed by him.
81 There is no specific finding about one of the cause of death
being sexual assault and as against it, there is a specific question that
sexual assault was determined only on the basis of CA report. In view
of this, the Respondent deserves to be acquitted under section 376 of
the Indian Penal Code and section 4, 8, 9(h) and 10 of the Protection
of Children from Sexual Offences Act. The offence committed by the
accused does not fall in the category of Section 366-A of the Indian
Penal Code and therefore, he deserves to be acquitted of the said
offence. However, the fact that he had taken away the girl from lawful
custody of her father, conviction for offence punishable under section
364, 363 and 201 of the Indian Penal Code deserves to be maintained.
82 We have appointed Ms. Priyanka Chavan to espouse the
cause of the victim. She has assisted us. She has drawn our attention to
the directions of the learned Special Judge that after realisation of the
fine amount it shall be given to the parents of the deceased girl after
the appeal period is over.
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83 The District Legal service, Thane to award compensation to
the parents of the deceased girl as per rules. It is submitted that the
sentence of fine would commence only after the substantive sentence
is served by the convict. The appellant herein is sentenced to life
imprisonment. He is not supported by his family and therefore, there
was no occasion to pay fine amount and hence, it would cause
injustice to the victim. It is submitted that it was incumbent upon the
learned Special Judge to specify the quantum of compensation to the
parents of the victim.
84 On 27th October 2021, the learned APP had submitted that
the compensation of amount of Rs.3 Lakhs has been granted to the
parents of the victim under the Manodhairya Scheme. Bhiwandi Police
had made efforts to get complainant from U.P. with the help of Police
and an account would be opened in the name of the complainant and
the amount of compensation would be deposited in the said account.
The learned Counsel for the Respondent has drawn our attention to a
catena of decisions of the Supreme Court to substantiate her
contention that in such cases like the present one the Courts must
exercise the powers under section 357(1) of Code of Criminal
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Procedure, 1973 liberally so as to meet the ends of justice. The
learned Counsel has also drawn our attention to Chapter 15 of the Law
Commission of India 154th Report in which the Law Commission had
taken into consideration the observations of the Supreme Court in the
case of Hari Kishan & anr. Vs. Sukhbirsingh & ors.20, wherein the Court
had pertinently observed as follows :
"It may be noted that this power of Courts to award
compensation is not ancillary to other sentences to pass an
addition thereto. This power was intended to do something to
reassure the victim that he or she has not been frightened in the
criminal justice system. It is a measure of responding
appropriately to crime as well of reconciling the victim with the
offender. We, therefore, recommend to all Courts to exercise this
power liberally so as to meet the ends of justice in a better way."
The learned Counsel has also placed reliance upon the various
resolutions passed by the Government of Maharashtra. To buttress her
arguments, the learned Counsel has also placed reliance upon the
judgment of the Apex Court in the case of Nipun Saxena and Anr. Vs.
Union of India and Ors.21 reported in . We appreciate the assistance
extended by the learned Counsel appointed for the victim.
20 1988 AIR 2127.
21 (2019) 13 SCC 715
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85 In view of the above discussion, it can be said that a young
lad who was hardly 20 years old had suddenly thought of seeking
vengeance for the humiliation that he faced at the hands of PW 1.
There is no material to show that he was over-powered by lust. There
is no evidence of sexual assault and therefore, the accused deserve to
be acquitted for Section 376 of Indian Penal Code and Section 4, 8, 9
(h) and 10 of Protection of Children from Sexual Offences Act, 2012.
The conviction of the accused for offence punishable under section 302
of the Indian Penal Code needs to be maintained. However, sentence
of the accused deserves to be modified to Life Imprisonment as not
being the rarest of rare case. It is further pertinent to note that since
the accused had abducted the victim from the lawful custody of P.W. 1,
conviction and sentence under section 363, 364 and 201 of the Indian
Penal Code is maintained. Hence, following order is passed :
ORDER
1. The reference of confirmation of the death sentence
awarded to the respondent vide Judgment and Order dated 8 th
March, 2019 passed by the Additional Sessions Judge &
Special Judge under POCSO Act, Thane in Special Case(Child
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Protection) No. 159 of 2018 is answered in the negative.
2. The conviction of the Respondent for offence punishable
under Section 302 of Indian Penal Code is upheld and
confirmed. However, the sentence is modified. The appellant is
sentenced to suffer imprisonment for life and to pay fine of Rs.
5,000/-(Rs. Five Thousand only), in default to suffer further
RI for 6 months.
3. The conviction and sentence of the Respondent for the
the offence punishable under Section 376 of Indian Penal Code
and Section 4, 8, 9(h) and 10 of Protection of Children from
Sexual Offences Act is quashed and set aside.
4 The conviction and sentence of the Respondent for
offence punishable under section 363, 364 and 201 of the
Indian Penal Code is maintained.
5. The sentence for offence punishable under section 302,
363, 364 and 201 of Indian Penal Code shall run concurrently.
6 The accused is acquitted of the offence punishable under
section 366A of the Indian Penal Code.
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7 The appellant is entitled to the set off for the period
already undergone.
8. The Registrar Judicial shall send the copy of this
judgment to the District Legal Services Authority, Thane within
2 weeks.
9. The District Legal Services Authority, Thane shall pay
compensation to PW 1 in a sum of Rs. 5,00,000/- ( Five Lakhs)
within 6 months from the date of receipt of this order.
10. The Counsel Miss. Priyanka Chavan is entitled to
Professional fees as per rules to be paid by High Court Legal
Services Committee.
11 The Confirmation Case stands disposed of on the above
terms.
(PRITHVIRAJ K. CHAVAN, J) (SMT. SADHANA S. JADHAV, J)
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