Bombay High Court
The State Of Maharashtra vs Ashok Baban Mukane on 23 February, 2022
Bench: S.S. Jadhav, P. K. Chavan
CONF-3-2019.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL CONFIRMATION CASE NO.3 OF 2019
THE STATE OF MAHARASHTRA ] Appellant
(Original Complainant)
Vs.
ASHOK BABAN MUKANE ]
Aged about 32 years, Occu: Laborer ]
R at Masvane, Tal. Shahpur, ]
Dist. Thane ]
(Accused in Nagpur Jail, Nagpur) ] Respondent
(Original Accused)
a/w
CRIMINAL APPEAL NO.586 OF 2019
Ashok Baban Mukane ]
Aged about 32 years, Occu: Laborer ]
R/at Masvane, Tal. Shahpur, ]
Dist. Thane ]
(Accused in Nagpur Jail, Nagpur) ] Appellant
Vs.
The State of Maharashtra ]
(At the instance of Shahpur Police Station) ] Respondent
.....
SHAILAJA Digitally signed by SHAILAJA
SHRIKANT
SHRIKANT HALKUDE
Date: 2022.02.23 13:13:13
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Ms. Veera Shinde, A.P.P, for Appellant-State in Confirmation Case
No.3 of 2019.
Mr. Shashikant Chaudhari, appointed Advocate a/w Ms. Snehal S.
Chaudhari, Mr. Pranot Pawar and Mr. Gyanprakash R. Pal, for
Respondent in Confirmation Case No.3 of 2019 and for Appellant in
Criminal Appeal No.586 of 2019.
Mr. R.S. Kshirsagar, A.P.I Shahapur Police Station.
....
CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : 15th DECEMBER, 2021.
PRONOUNCED ON : 23rd FEBRUARY, 2022.
JUDGMENT: [Per Prithviraj K. Chavan, J.]
1. The learned Additional Sessions Judge, Kalyan had submitted
the proceeding to this Court for confirmation of the sentence of death
awarded by him in Sessions Case No.47 of 2014 on 6th March, 2019
under section 366 of the Code of Criminal Procedure, inter alia, an
appeal by the appellant challenging his conviction and sentence of
death for having committed murder of the victim and sentence of life
imprisonment for committing rape upon her.
2. P.W.1 - mother of the victim and the complainant was a
resident of Village Saavroli, Taluka - Shahapur, District. Thane. The
family comprised her husband, two sons, one daughter-in-law,
grandson, two daughters (victim and another daughter). The victim
was prosecuting her studies in Tool Mechanic Course in ITI.
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3. On 5th September, 2013, as usual, P.W.1- mother of the victim
accompanied her at Asangaon Railway Station around 5.45 a.m. The
victim was to attend her college, as usual, on that day also. The
victim was to catch a local train of 6.10 a.m. After leaving the victim
at the station, P.W.1 - mother of the victim returned home and then
left for her work at 8.30 a.m. However, instead of attending her
work, P.W.1 - mother of the victim had been to her sister and both of
them had gone to Kolshewadi, Kalyan, as they wanted to meet one
Appa Shinde. Appa Shinde was known for financially helping poor
girls for their admissions in School. However, they could not meet
Appa Shinde.
4. Thereafter, both of them went for their work in the Company.
Around 10.30 to 10.45 a.m, P.W.1- mother of the victim had called
the victim on her mobile number - 9225396130. The victim did not
answer the call though the bell was ringing. P.W.1 - mother of the
victim returned home around 6.30 p.m. Normally, the victim used to
return home around 5.30 p.m. However, on that day, she did not
return home and, therefore, several calls were made on her mobile.
However, reply was "not reachable". Around 8.00 p.m., P.W.1-mother
of the victim asked her son to go to the railway station in search of
the victim. He returned home by 9.30 p.m only to inform that he
could not see the victim at the Railway station. P.W.1- mother of the
victim thought that due to the fear of her father, perhaps the victim
might have gone to her friend's house and would go to her College
on the next day morning directly from her friend's house. As such,
no report was made on that day.
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5. On 6th September, 2013, P.W.1- mother of the victim was at
home since it was a holiday. Around 10.30 a.m, her son informed her
that dead body of the victim was lying beside the railway crossing.
The victim was found half naked as her jeans were pulled down and
shirt was also found raised upto the breast. Her lips were found
swollen and blood was oozing from her nose and mouth. Her face
was swollen. Since P.W.1 - mother of the victim was in utter shock,
she was not taken to the spot. Her son had noticed that the mobile
handset of TATA Company which belonged to the victim was found
stolen. It was apparent that she was raped and murdered.
6. A complaint came to be lodged by P.W.1-mother of the victim
with Shahapur Police Station, on the basis of which, a crime bearing
No.181 of 2013 under sections 302 and 376 (1) of the Indian Penal
Code came to be registered on 6th September, 2013 at 16.05 hours
(Exhibit 35).
7. Before registering an F.I.R, P.W.2-Shivaji Hari Satpute had
already informed the Police for having noticed dead body of the
victim lying in a half naked condition with blood and froth oozing
from the mouth. Her College bag was placed on her stomach. Zip of
the bag was found open and articles from the bag viz: water bottle
and one red coloured purse was found lying near her body. This
information was given on 6th September, 2013 at 9.15 a.m and ADR
No.81 of 2013 was registered at 11.35 a.m (Exhibit 38).
8. P.W. 24 - Sunil Dattatray Wadke, Police Inspector then attached
to Shahapur Police Station visited the scene of occurrence. An
inquest as well as spot panchanama was drawn in the presence of
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pancha witnesses. A rough sketch map of the spot was drawn by
Revenue Inspector. Dead body of the victim was sent for autopsy to
Sub-District Hospital, Shahapur. Hospital Authorities were asked by
the Investigating Officer to collect vaginal swab, nail clipping, pubic
hair and skull hair by issuing a requisition. Autopsy was conducted
at J.J. Hospital, Mumbai. Biological samples were sent for chemical
analysis to the Forensic Science Laboratory. Postmortem was
conducted by a Panel of three Doctors. The report indicates that the
"principal cause of death was due to Asphyxia due to smothering
with compression of neck associated with head injury".
9. Further investigation was carried out by P.W.26 - Dy. S.P.
Prashant Vijaykumar Waghunde. The appellant was arrested on 10th
September, 2013 when he was found loitering in a suspicious
condition beneath Asangaon Fly Over Bridge on the railway track.
During interrogation, he alleged to have confessed his guilt before
the Police. At the time of his arrest, clothes on his person comprising
of a pant and 'T' shirt along with green coloured half pant were
seized by the Police.
10. While in Police custody, it is contended that he voluntarily
made a disclosure statement, pursuant to which, the clothes which
were on his person at the time of committing the offence came to be
seized. Those clothes comprised one ash coloured full sleeves shirt
having label as "Ruff & Tuff" and a black coloured pant labeled as
'METIC". Those clothes were duly seized and sealed vide
panchanama (Exhibit 51). D.N.A examination of the samples
collected from the person of the victim vis-a-vis the appellant
confirmed that they match and that it was the appellant, who had
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committed rape upon the victim. The Investigating Officer had
recorded statements of the witnesses. Certain documentary evidence
had been collected from the Institution where the victim was
prosecuting her studies such as her attendance register in the college
on the date of the incident etc. During investigation, it revealed that
while returning home from the College, the appellant accosted her on
the way and committed forcible rape. He killed her as she had
resisted him.
11. The Investigating Officer had collected call detail record of the
mobile phone of the victim as well as some other suspects. After
investigation, a charge-sheet was filed in the Court of Judicial
Magistrate First Class, Shahapur which, in turn, was committed to
the Sessions Court, Kalyan.
12. A charge was framed under sections 302 and 376 (1) of the
Indian Penal Code against the appellant. It was read over and
explained to him. He abjured the guilt and claimed a trial. His
defence was of total denial and false implication in this case. No
defence evidence has been adduced.
13. To substantiate the charge, prosecution examined 26 witnesses
coupled with some documentary evidence in the form of Call details
record, autopsy report, D.N.A report, panchanamas etc.
14. The learned Additional Sessions Judge heard the appellant as
well as the prosecution on the point of sentence. He has placed
reliance mainly upon the latest judgment of the Hon'ble Supreme
Court in case of Mukesh and another Vs State (NCT of Delhi) and
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others as well as ratio laid down by the Supreme Court in case of
Bachan Singh Vs. State of Punjab 2, Ramnaresh and others Vs. State of
Chattisgarh3 and Dhananjoy Chatterjee alias Dhana Vs. State of West
Bengal4. The learned Additional Sessions Judge discussed as to how
the case falls within the rarest of rare category by referring to the
evidence on record, especially the medical evidence. He observed
that the victim was brutally assaulted by the appellant with the aim
to commit rape. He, therefore, awarded death penalty to the
appellant.
15. A reference under section 366 of the Criminal Procedure Code
has been made by the learned Additional Sessions Judge for
confirmation of death penalty.
16. We heard learned A.P.P, Ms. Veera Shinde and Mr. Chaudhari,
Counsel for the appellant-accused at length. With the assistance of
the Counsel, we have meticulously gone through the entire evidence,
postmortem report and the reports of the Forensic Science
Laboratory. We also heard the appellant in person as well as
considered an affidavit of the appellant as well as an affidavit sworn
by P.W.24 - Sunil Wadke, Investigating Officer.
17. The learned Counsel has pressed into service 44 case laws
which are as under;
(1) Bachan Singh Vs. State of Punjab5;
(2) Macchi Singh and others Vs. State of Punjab6;
1 (2017) 6 SCC 1
2 (1980)2 SCC 684,
3 (2012) 4 SCC, 257
4 (1994) 2 SCC 220
5 1980 Cri L.J 636
6 1983 Cri.LJ 1457
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(3) Sharad Biridhichand Sarda Vs. State of Maharashtra 7;
(4) State of Punjab Vs Harchet Singh alias Chet Singh 8;
(5) State of T.N Vs. Suresh and another9;
(6) Ronny alias Ronald James Alwaris Vs. State of
Maharashtra10;
(7) Akhtar Vs. State of U.P11;
(8) Nirmal Singh and another Vs. State of Haryana12;
(9) Kumudi Lal Vs. State of U.P13;
(10) Mohd. Chaman Vs. State (N.C.T of Delhi)14;
(11) Raju Vs. State of Haryanaa15;
(12) Bantu alias Naresh Giri Vs. State of M.P16;
(13) State of Maharashtra Vs. Bharat Fakira Dhiwar17;
(14) Pandurang Kalu Patil and another Vs. State of
Maharashtra18;
(15) Golakonda Venkateswara Rao Vs. State of A.P19;
(16) Amit alias Ammu Vs. State of Maharashtra20;
(17) Anter Singh Vs. State of Rajasthan21;
(18) Surendra Pal Shivbalakapal Vs. State of Gujarat22;
(19) State of Rajasthan Vs. Ram Niwas and another23;
(20) State of U.P Vs. Desh Raj24;
(21) Amrit Singh V. State of Punjab25;
7 AIR 1984 Supreme Court 1622
8 1994 Cri. L.J 1529
9 1998 CRI. L.J, 1416
10 1998 CRI. L.J 1638
11 1999 Cri. L. J 5007
12 1999 Cri. L.J. 1836
13 1999 Cri. L.J 2523
14 2001 Cri. L. J. 725
15 2001 Cri. L. J 2580
16 2002 Cri. L. J. 211
17 2002 Cri. L.J. 218
18 2002 Cri. L.J 1007
19 AIR 2003 Supreme Court 2846
20 2003 Cri. L. J. 3873
21 2004 Cri. L.J. 1380
22 2004 Cri. L,J. 4642
23 2006 Cri. L.J, 2477
24 2006 Cri. L. J, 2108
25 2007 Cri. L.J, 298
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(22) Bishnu Prasad Sinha and another Vs. State of Assam26;
(23) State of M.P Vs. Munnibai and another27;
(24) Santosh Kumar Vs. State through CBI28;
(25) Rameshbhai Chandubhai Rathod Vs. State of Gujarat29;
(26) State of Maharashtra Vs. Goraksha Ambaji Adsul;
Goraksha Ambaji Adsul Vs. State of Maharashtra30;
(27) Haresh Mohandas Rajput Vs. State of Maharashtra31;
(28) Amit Vs. State of U.P32;
(29) Ramnaresh and others Vss State of Chattisgarh 33;
(30) Neel Kumar @ Anil Kumar Vs. State of Haryana34;
(31) Sandesh alias Sainath Kailash Abhang v. State of
Maharashtra35;
(32) Mohinder Singh V.. State of Punjab36;
(33) Ram Deo Prasad V. State of Bihar37;
(34) Shankar Kisanrao Khade Vs. State of Maharashtra38;
(35) Lalit Kumar Yadav alias Kuri V. State of Uttar Pradesh 39;
(36) Tattu Lodhi alias Pancham Lodhi Vs State of Madhya Pradesh40;
(37) Prahlad V. State of Rajasthan41;
(38) Rajendra Pralhadrao Wasnik Vs. State of Maharashtra 42
(39) Sachin Kumar Singhraha Vs State of Madhya Pradesh43
(40) State of Jharkhand Vs. Mathura Yadav44;
26 AIR 2007 Supreme Court 848
27 2008 Cri. L. J, 4692
28 2011 AIR SCW, 3647
29 2011 Cri. L.J 1458
30 2011 Cri. L.J. 4286
31 2011 Cri. L.J (Supp) 126
32 2012 Cri. L. J 1791
33 2012 Cri. L. J. 1898
34 2012 AIR SCW 3766
35 2013 Cri. L.J, 651
36 2013 Cri. L.J. 1559
37 2013 Cri. L.J. 2369
38 2013 Cri. L.J. 2595
39 2014 AIR SCW 2655
40 AIR 2016 Supreme Court 4295
41 AIR 2018 SC (Supp) 2586
42 AIR 2019 Supreme Court 1
43 AIR 2019 Supreme Court 1416
44 AIR Online 2019 Jha 268
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(41) State of Maharashtra Vs. Imtiyaz Ahmad Mohd Ali Shaikh 45;
(42) The State of Maharashtra Vs. Krushna s/o Ramrao
Ridde46;
(43) Mofil Khan and another Vs. The State of Jharkhand 47;
(44) The State of Maharashtra Vs. Rahimuddin Mohfuz
Shaikh @ John Anthony D'souza @ Babu @ Baba, 48.
18. Case laws at Sr. No.1, 2, 4, 7, 8, 9, 10, 11, 12, 16, 18, 21, 22,
24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,
42, 43, 44 are on death sentence and hence, are not applicable.
19. Judgment at Sr. No.5 in case of State of Tamilnadu Vs. Suresh
and another (supra) is not applicable as it is on the point of evidence
of accomplice.
20. The judgment at Sr. No.6 in the case of Roony alias Ronald
James Alwaris Vs. State of Maharashtra (supra) is on the point of
Test Identification Parade and hence, not applicable.
21. In the judgment at Sr. No.13 in case of State of Maharashtra
Vs. Bharat Fakira Dhiwar (supra), the Hon'ble Supreme Court
accepted the circumstantial evidence in the form of recovery of
articles stained with blood of the deceased as a clinching and truthful
evidence.
22. The judgment at Sr. No.17 in case of Anter Singh Vs. State of
Rajasthan (supra) deals with section 27 of the Indian Evidence Act
45 AIR Online 2019 Bom 973
46 Confirmation Case No. 3 of 2016
47 Review Petition (Criminal) No.641 of 2015 in Criminal Appeal No.1795 of 2009
48 Confirmation Case No.1 of 2017
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which, according to the Supreme Court, is in nature of exception to
preceding provisions, particularly, sections 25 and 26. The Supreme
Court has laid down conditions necessary for invoking section 27 of
the Indian Evidence Act. We have already discussed the said aspect.
23. The judgment at Sr. No.19 in case of State of Rajasthan Vs.
Ram Niwas and another (supra) is not at all applicable to the present
set of facts as it deals with evidence of an approver under section 306
of the Code of Criminal Procedure.
24. Similarly the judgment at Sr. No.20 in case of State of U.P Vs.
Desh Raj (supra) is on the aspect of "last seen together".
25. The judgment at Sr. No.23 in the case of State of M.P Vs
Munnibai and another (supra) is on section 34 of the Indian Penal
Code and hence, not applicable.
26. We wonder as to why and how these judgments as precedents
have been cited by the Counsel for the appellant. It is apparent that
simply a bunch of compilation of case laws has been tendered
without referring to any single precedent from the list of the
judgment noted above.
27. At the outset, we hold that the prosecution has succeeded in
establishing homicidal death of the victim, yet the evidence is too
short and weak to establish any nexus of the appellant qua murder of
the victim. Having said so, there is absolutely no point in considering
the voluminous case laws comprising 44 judgments tendered on
behalf of the appellant on the aspect that the case does not fall
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within rarest of rare category. Since we are disinclined to accept the
contention of the prosecution that it has proved the charge of murder
against the appellant, he needs to be given benefit of doubt on that
count. Though such voluminous case laws have been cited by the
Counsel, not a single case law is pointed out as to how ratio laid
down therein would be applicable to the present set of facts.
28. It has been argued that the prosecution case revolves around
circumstantial evidence, however, it has failed in establishing the
chain of events, for, there are several discrepancies and doubts in the
testimonies of the prosecution witnesses, which according to the
Counsel, do not inspire confidence. There is not a single eye witness
who is said to have seen the victim returning home on the day of the
incident by the side of the railway track. The Counsel would argue
that no efforts were taken by P.W.1-mother of the victim to ascertain
the whereabouts of the victim when she was found missing in the
evening of 5th September, 2013. Non examination of the brother of
the victim who had noticed her dead body and who was the one to
intimate the informant- P.W.1-mother of the victim that the victim
was not found at the railway station, is fatal to the prosecution case.
This, according to the Counsel, is a serious lacuna in the prosecution
case and, therefore, the appellant needs to be acquitted.
29. So far as the evidence of PW.2 - Shivaji Hari Satpute is
concerned, it is submitted that he is an usual police witness who was
in touch with the Police and, therefore, his evidence is not free from
doubt. He was already present on the spot before arrival of Police. It
is argued that this witness had received a call from one Dilip
Chandrakant Sangare but the said Dilip Sangare has not been
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examined by the prosecution. There is no call detail record produced
qua conversation between this witness and Dilip Sangare. As regards
inquest panchanama, it is submitted that one panch is the sister-in-
law of the victim and, therefore, she is an interested witness. The
Counsel has also questioned the credibility of P.W.8- Gulab Rambabu
Agrawal as she was involved in an illegal liquor business. According
to him, she was a planted witness by the Police, who had no occasion
to see the so-called TATA Mobile handset, which the appellant
purportedly wanted to sell her.
30. Similar is the argument in so far as the evidence of P.W.9 -
Mangesh Hari Hirankar is concerned. According to the Counsel, he
cannot be said to be a reliable and trustworthy witness who was
under the influence of liquor at the relevant time. The next
argument of the Counsel is that seizure of the clothes of the appellant
as well as the articles from the scene of occurrence is not free from
doubt as the correct procedure of seizure had not been followed by
the Investigating Officer.
31. As far as the evidence of P.W.18 - Dr. Dattaram Bhore, who had
conducted autopsy, it is submitted that age of the victim had not been
proved by the prosecution, so also the time of her death. It is
submitted that postmortem report in itself is insufficient to establish
any link between the appellant and the alleged offence of murder
and rape.
32. The Counsel would argue that the Investigating Officer as well
as Chemical Analyzer Mr. Siddharth More and Avinash Surve had not
followed the procedure. The chemical analyzer and his assistant had
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not been examined by the prosecution. They had called local
panchas, especially the relative of the complainant and, therefore,
that evidence is also untrustworthy. The Counsel, therefore, has
prayed for acquittal of the appellant.
33. On the other hand, the learned A.PP has supported the
impugned judgment and order of conviction by stating that it is a fit
case of maintaining the conviction for the offence of not only
committing rape upon the victim but also eliminating her brutally by
strangulating as well as forcibly hitting on her head with some hard
and blunt object. The learned A.P.P would argue that the trial Court
has rightly awarded death penalty since it is a case which falls under
the rarest of rare category in view of the principles laid down by the
Supreme Court in the case of Bachan Singh (supra) and Machhi
Singh (supra) and other precedents.
34. This case, indeed revolves around circumstantial evidence.
Before adverting to the circumstances brought on record by the
prosecution, it would be essential to note that indubitably the victim
died a homicidal death who was also subjected to rape. The defence
has not seriously disputed the fact of homicidal death of the victim as
well as the fact that she was subjected to rape. The evidence needs to
be scrutinized so as to see whether the prosecution has been
successful in showing a nexus between the crime and the criminal i.e
the appellant keeping in mind the well-known principles enunciated
in the case of Sharad Sarada (supra) and many others on
circumstantial evidence.
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35. Broadly speaking following few circumstances emerged from
the overall evidence of the prosecution.
(a) The appellant was residing in a hut which
was not far away from the scene of occurrence;
(b) The appellant and his wife knew that it was the
usual foot way being used by the victim;
(c) The appellant had consumed liquor on the day of
the incident and also on the following day;
(d) The appellant had been to the liquor shop of P.W.8-
Gulab Agrawal on 5th September, 2013 during
evening hours;
(e) The appellant had offered to sell a TATA DOCOMO
mobile handset to P.W.8-Gulab Agrawal in the
presence of P.W.9 - Mangesh Hirankar;
(f) Discovery of clothes of the appellant on his person
at his instance from the hut with semen stain and
pubic hair on the pant;
(g) The DNA report of the appellant and the victim.
36. The defence has not disputed the factum of homicidal death of
the victim as well as the fact that there was rape. Nevertheless, it
would be expedient to go through the evidence of P.W.18 - Dr.
Dattatray Bhore.
37. P.W.18 - Dr. Dattatray Vitthal Bhore who was then Assistant
Professor in J.J Hospital, Mumbai conducted autopsy over the dead
body of the victim along with Dr. S.S. Bhise and Dr. G.D. Niturkar. Dr.
Bhise and Dr. Niturkar were Assistant Professors in the Department of
Forensic of Grant Medical College, Mumbai at the relevant time.
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38. Evidence of P.W.18 - Dr. Bhore reveals that dead body of the
victim aged about 17 years was brought to the Hospital by an
Assistant Police Inspector - Patil of Shahapur Police Station on 6th
September, 2013 at 8.00 p.m. Autopsy was conducted between 9.00
p.m and 11.00 p.m on that day. On examination of the body which
was wrapped in red coloured bed sheet and was nude, following
external injuries were noticed;
(a) Contusion of size 4 c.m x .5 c.m. Muscle deep present
over left cheek 2 c.m away from left angle of mouth dark red
in colour;
(b) Abrasion contusion of size 2 c.m x .5 c.m. Muscle deep
present over left sub mandibula region and 2.5 lateral to injury
No.1 dark red in colour;
(c) Abrasion of size 3 c.m x 1.5 c.m present below left eye
lid over left maxillary region dark red in colour;
(d) Abrasion of size .2 c.m x .2 c.m present below left nostril
laterally dark red in colour;
(e) Linear nail mark abrasion of size 2 c.m x .5 c.m present
behind right ear oblique in direction dark red in colour;
(f) Abrasion of size 5 c.m x 1 c.m present over the back side
over right scapular region dark red in colour;
(g) Contusion of size 5 c.m x 4 c.m muscle deep present over
left arm posterio medially dark red in colour;
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(h) Contusion of size 3 c.m x 2 c.m muscle deep present
behind right elbow joint posterio medially dark red in colour;
(i) Abrasion of size 4 c.m x 2 c.m present behind right
elbow posterio laterally dark red colour;
(j) Abrasion of size 4x.5 c.m present over right leg laterally
just above right lateral malleolus;
(k) Abrasion contusion over inner aspect of lower lip, on left
side of size 2x.5 c.m dark red in colour.
All the injuries were stated to be fresh and were caused within
24 hours. Those injuries were probably caused by hard and
blunt object. Abrasions were due to rough surface and nagging.
39. When there is no direct evidence and the decision has to be
based on circumstantial evidence, a few guidelines and salient
features have been enunciated by various judgments including the
well-known decision in the case of Sharad Sarda (supra) Broadly
speaking, the evidence must satisfy following tests;
(a) The circumstances from which an inference of
guilt is sought to be drawn must be cogently and firmly
established;
(b) Those circumstances should be of definite
tendency unerringly pointing towards the guilt of the
accused;
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(c) The circumstances, taken cumulatively, should
form a chain so complete that there is no escape from
the conclusion that within all human probability the
crime was committed by the accused and none else;
(d) The circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should be
inconsistent with his innocence.
40. P.W.3- Sachin Kondiram Bhoir acted as a panch in respect of
scene of offence Exhibit 113 as well as inquest panchanama Exhibit
40. The sum and substance of his evidence is that he was summoned
by the Police on the spot at 10.00 a.m on 6th September, 2013 along
with sister-in-law of the victim. Body of the victim was found lying
beside the railway track. Blood was oozing from her nose and
mouth. There was an injury over her cheek. A bag was lying on her
stomach. A Chocolate coloured purse was lying beside her. There was
one SIM Card of TATA DOCOMO. A black coloured bag contained
some text books of the Institute where the victim was prosecuting her
study. There was a water bottle, tiffin box, lipstick, identity card
issued by the Railway Department etc. All the articles were seized by
the Police under a panchanama which is proved at Exhibit 42. P.W.3 -
Sachin Kondiram Bhoir identified all the articles during trial. The
defence declined to cross-examine this witness. Thus, seizure of the
articles lying near the victim have been duly proved by the
prosecution.
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41. A team of Doctors had noticed following injuries on genital
region;
"Labia majora and minora - contusion is seen over
inside surface of labia majora and minora on both
sides. Dark red in colour. Tearing of the hymen is
seen on 7 O' clock position on right side with
infiltation of blood is seen in margins of remaining
tags of hymen. The injuries probably caused by
forceful intercourse".
42. On internal examination, the team of Doctors found following
ante mortem injuries;
"(a)Head injury - Under scalp contusion of size 8
c.m x 10 c.m bone deep present over right
franto temporal parietal region dark red
colour;
(b) Under scalp contusion of size 3 c.m x 2 c.m
bone deep present over vertex. Red in colour .
(c) Brain tissue -
(i)Subdural hematoma of size 10 c.m x 8 c.m
present over right parieto occipital region extends
to left parietal region of cerebral hemisphere,
dark red colour;
(ii)Subdural hemorrhage of size 5 c.m x 4 c.m
over left occipital region, dark red in colour;
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(iii)Subarachnoid hemorrhage of size 6 c.m x 4
c.m over right parieto occipital region, dark red in
colour;
(iv)Subarachnoid hemorrhage over left occipital
region 2 c.m x 1 c.m, red in colour".
Said hemorrhage due to hard and blunt object.
(4) Neck injury - on dissection of the skin of neck
underlying muscle hemorrhage is seen, from mentum
of chin to left sub-mandibular region. Caused by due
to pressure on neck and muscles of both sides of neck.
43. Five samples of viscera were preserved which are as under;
"Viscera for CA - 3 bottles, blood for grouping and DNA -
2 bottles - Nail clipping for C.A - one bottle, scalp hair
and pubic hairs for C.A 2 bottles, vaginal swab for C.A
one bottle".
44. Postmortem report:
11. Regard mortis - Rigor mortis - passed away in upper limbs
well marked, and present in lower limbs
slight or absent,
whether present
in the whole body
or part only
12. Extent, and signs signs of decomposition seen. Body was in
of decomposition, state of early decomposition with maggots,
presence with length 0.5 cm, present all over body,
postmortem dense over face, and external genitalia
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lividity of region, evidence of marbling of skin over
buttocks, loins, chest on upper region and shoulder region,
back and thighs foul smelling gases. Postmortem lividity -
or any other part. developed, fixed faint purple colour all over
Whether bullae back, except bony prominances. Right side
present and the of face shows postmortem lividity staining
nature of their which is reddish purple colour and fixed.
contained fluid.
Condition of the
cuticle
13. Features - Eyes closed, maggots seen, on opening both
Whether natural pupils dilated and fixed, right eyes shows
or swollen state sub conjuctival hemorrhages. Mouth partly
of eyes, position open, maggots are seen inside the oral
of tongue, nature cavity, Lip cyanosed, teeth intact, tongue
of fluid (if any) inside mouth cavity. Nose - oozing of blood
oozing from tinged fluid with mucus from both the
mouth or ears nostrils.
14 Condition of skin -----
- Marks of blood,
etc in suspected
drowning the
presence or
absence of cutes
anserina to be
noted
15. Injuries to external genitalia - maggots are present
external genitals. around external genitalia, labia majora and
Indication of minora. Contusion is seen over inside
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purging surface of labia majora and minora on both
sides, dark red colour. Tearing of the hymen
is seen on 7' O clock position. On rich side
with infiltration of blood of hymen Anus -
No evidence of purging, excoriation of skin
seen at places on inner side of thigh
produced by maggots.
16. Position of limbs- In anatomical position. Black colour ink
Especially of arms stains present over palmer aspect and finger
and of fingers in of both hands, chest and abdomen.
suspected
drowning the
presence or
absence of sand
or earth within
the nails or on
the skin of hands
and feet
17. Surface wounds 1)Contusion of size 4 c.m x 05 c.m x muscle
and injuries. deep present over the left cheek 2 c.m away
Their nature, from left angle of mouth dark red colour;
position, (2)Abraded contusion of size 2 c.m x 0.5 cm
dimensions muscle deep present over left submandibula
(measured) and region 2.5 cm lateral to injury No.1, dark
directions to be red in colour;
accurately stated (3)Abrasion of size 3 c.m x 1.5 c.m present
below left eyelid, over left maxillary region,
If bruises be dark red colour;
present what is (4) Abrasion of size 0.2 c.m x 0.2 cm,
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the condition of present below left nostril laterally dark red
the subcutaneous colour;
tissues? (5)Linear nail mark abrasion of size 2 cm x
0.1 c.m, present behind right ear, oblique in
(N.B.- When direction, dark red colour;
injuries are (6)Abrasion of size 5 c.m x 1 c.m, present
numerous and over the back side over right scapular
cannot be region, dark red colour;
mentioned within (7)contusion of size 5 c.m. x 4 cm X muscle
the space deep, present over the left arm
available they posteromdially dark red colour;
should be (8)contusion of size 3 c.m x 2 c.m x muscle
mentioned on a deep present behind right elbow joint
separate paper posteromedially, dark red colour;
which should be (9)Abrasion of size 4 c.m x 2 c.m, present
signed behind right elbow posterolateraly dark red
colour;
(10)Abrasion of size 4 cm x 0.5 cm present
over right leg, laterally, just above right
lateral malleolus;
(11)Abraded contusion over inner aspect of
lower lip, left side of size 2 c.m x 0.5 c.m,
dark red colour.
18. Other injuries No palpable fracture
discovered by
external
examination or
palpation as
fractures etc
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(a)Can you say Yes, antemortem
definitely that the
injuries shown
against serial Nos
17 and 18 are
antemortem
injuries
19. Head -
(i)Injuries under Under scalp contusion of size 8 c.m x 10
the scalp, their c.m, bone deep present over right
nature; frontotemparo - Parietal region dark red
colour'
(ii)Skull - vault
and base describe Intact, No fracture
fractures, their
sites, dimensions,
directions etc;
(iii)Brain - The
appearance of its Meninges - Intact, vessels - congested
covering, size,
weight and (1)Subdural hematoma of size 10 c.m x 8
general condition c.m present over right parietoccipital region
of the organ itself extend to left parietal region of cerebral
and any hemisphere dark red colour;
abnormality
found in its (2)Subdural hemorrhage of size 5 c.m x 4
examination to be c.m over left occipital region, dark red;
carefully noted (3)Subarachchomoid hemorrhage of size 6
(Weight M 3 c.m x 4 c.m over right perietoccipital region,
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gram F. 2.75 dark red colour;
grams) (4)Subarachchomoid hemorrhage over left
occipital region, 2 c.m x 1 c.m, dark red;
20. Thorax On dissection of the skin of neck, underlying
muscle hemorrhage is seen from mentum of
chin to left sub mandibular region and
muscle of both sides of neck -
dark red colour
(a) walls,ribs
cartilages Intact, No rib fracture
(b) Pleura Intact
(c)Larnyx,
Trachea and
Bronchi Intact, trachea - congested, no foreign body
(d)Right Lung }
}
(e)Left Lung } Both lung intact, congested
(f)Pericardium Intact
(g) Heart with Intact, normal size and shape congested,
weight valves intact, chambers empty
(h)Large vessles
(i)Additional
remarks ----
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21 Abdomen }
Walls } Intact
Peritonium } Intact
Cavity No free fluid or blood fluid in peritoneal
cavity
Bucal Cavity
teeth tongue and
pharynx Intact - congested
Desophagus Intact, pale-MUCOSA
Stomach and its Intact, content 150 CC semisolid, undigested
contents Food material, No specific odour, muscle
small intestine pale
and
its contents Both intestines intact, partly loaded with
Large intestine gases
and
its contents
Liver with weight
and gall bladder Intact, congested
Pancreas and Intact, unremarkable
Suprarenals
Spleen with Intact, congested
weight Kidneys Intact, congested
with weight
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Bladder Intact, almost empty
Organs of
generation Uterus - Intact with size 8 c.m long, 5 c.m
wide at Fundus and 1.25 c.m in thick
normal, in size and shape; Uterine cavity -
empty. Cyst is present in right ovary.
Endometrium pale
Additional
remarks with
where possible,
Medical Officer's
deduction from
the state of the
contents of the
stomach as to
time of death and
last meal
State which
viscera (if any)
have been (1) Viscera for C.A (03 bottle)
retained for (2) Blood for group and DNA (02 bottle);
chemical (3) Nail Clipping for C.A (01 bottle)
examination and (4) Scalp hair and pubic hairs for C.A (02
also quote the bottle)
numbers on the (5)Vaginal swab for C.A (01 bottle)
bottles containing
the same Total : 9 bottles
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45. According to P.W.18 - Dr. Dattatray Bhore cause of death of the
victim was due to Asphyxia due to smothering with compression of
neck associated with head injury. Even the final cause of death
certificate (Exhibit 92) confirms that it was death due to Asphyxia
due to smothering and throttling with head injury (unnatural).
46. The viscera and other biological samples in the form of nail
clipping, scalp hair, pubic hair, vaginal swab, blood of the victim as
well as the blood sample, semen, nail clipping, pubic hair of the
appellant were sent for chemical analysis in order to ascertain
whether they match, in the sense, whether D.N.A profile of both the
victim and the appellant matches. It is testified by P.W.18-Dr. Bhore
that D.N.A report reveals that vaginal swab of the victim vis-a-vis
blood sample of the appellant matched. He testified that an inference
can be drawn that there was a sexual intercourse between the victim
and the appellant.
47. P.W.18- Dr. Dattatray Bhore testified that dead body of the
victim was brought to J.J. Hospital by A.P.I Patil from Shahapur
Police Station on 6th September, 2013 at 8.00 p.m. Autopsy
commenced at 9.00 p.m and was completed at 11.00 p.m. He
testified that all the injuries on the dead body were within 24 hours
caused probably by hard and blunt object. Apart from this, he finally
opined that it was "Death due to asphyxia due to smothering and
throttling with head injury (unnatural)". The victim was missing from
the evening hours of 5th September, 2013 and, therefore, the
incident occurred during evening hours of 5th September, 2013
which corroborates other evidence on record.
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48. During a short cross-examination, defence had suggested that
the injuries in columns No.17 and 19 of the autopsy report are
possible by fall from hilly area. The expert had denied. The expert
had also denied the suggestion that they could not get semen from
the vagina of the victim as the body was in a state of early
decomposition. The medical expert had even candidly testified that
since internal cavity of the vagina was empty and hence there were
no symptoms of menstrual cycle. He further admits that during
forcible rape contusions are seen on labia majora and minora on both
inside and outside. We do not find any reason to disbelieve the
evidence of this witness which is based on cumulative findings of
three experts who had no axe to grind against the appellant.
49. We shall now deal with the evidence of the prosecution
witnesses with regard to the complicity and nexus of the appellant
qua the offences with which he has been charged. Suffice it to say
that the victim was subjected to rape and was killed by her
tormentor.
50. P.W.1- mother of the victim testified that on 5th September,
2013 at 5.45 a.m, she accompanied the victim to drop her at
Asangaon Railway Station, as usual, where the victim had boarded
6.10 a.m. local. P.W.1-mother of the victim returned home.
Thereafter, she went to the house of one Appa Shinde at Kolshewadi,
Kalyan with her sister. After some time, she gave a call to the victim
on her mobile number bearing No.9225396130 at about 10.45 a.m.
The victim's mobile rang but she did not pick it up. P.W.1 - mother of
the victim thereafter went for her work in the company and returned
home by 6.30 p.m only to witness that the victim had not returned
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home till then. She made an inquiry with the family members and
again at 8.00 p.m sent her son to Asangaon Railway station in search
of the victim. Her son went to Asangaon Railway Station in search
of the victim. He returned home by 9.30 p.m with no clues of the
victim. The family thought that the victim might have stayed back
with her friend and, therefore, did not make any grievance.
51. On 6th September, 2013 around 10.30 a.m, brother of the
victim came to know that dead body of the victim was lying near
railway track. P.W.1 - mother of the victim obviously was shocked
after hearing the said news. However, she went to the Police station
and lodged a complaint (Exhibit 35).
52. During the course of her evidence, she had identified the pair
of jeans, reddish shirt and other articles namely pink brassier, black
nicker, white sanitary napkin, Adidas bag, compass box, Breeze soap,
one chocolate coloured purse, red tiffin box and water bottle which
belonged to the victim. The said muddemal was marked as Articles A
to K. P.W.1- mother of the victim did not suspect anyone till then.
Admittedly, the victim was prosecuting her studies at ITI. It was
suggested to the witness that the victim was in a habit of speaking on
mobile phone and on that count, she used to scold her, which the
witness has denied. Except this, there is nothing in her cross-
examination.
53. As a matter of fact, it was P.W.2 - Shivaji Satpute who had first
informed the Police in the morning of 6th September, 2013 that dead
body of the victim was lying near the railway track. It was found
lying on a foot way running parallel to the railway track between
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Asangaon and Saavroli. He, therefore, called P.W.24- Police Inspector
- Sunil Dattatray Wadke attached to Shahapur Police Station. This
witness had also noticed a purse, sim card, bag and water bottle lying
near the victim. The First Information Report is at Exhibit 35. The
investigating officer had recorded his supplementary statement on
15th September, 2013. He testified that while the victim was going
home, the appellant attempted to commit rape and when she
resisted, he killed her by assaulting and pressing the bag on her
mouth. P.W.2 - Shivaji Satpute is not an eye witness. What he
testified is only what he might have thought or what might have
come to his mind after noticing the scene. The important aspect is
whether there is acceptable and believable circumstantial evidence
brought by the prosecution to show the nexus of the appellant with
the crimes in question.
54. P.W.11 - Dr. Guruprasad Murlidhar Wagh was attached to Sub-
District Hospital, Shahapur. According to him, on 6th September,
2013 around 9.00 a.m, he received a requisition of Shahapur Police
Station for performing autopsy on the dead body of the victim and
also to collect the samples. Requisition is at Exhibit 68. He had
collected scalp hair, pubic hair and nail clippings of the victim. He
handed over the said samples to the concerned Policemen and
referred the body to J.J Hospital for autopsy after consulting his
superior. In cross by the defence, it has been reiterated that he had
collected around 10 to 15 strands of scalp and pubic hair of the
victim. Thus, there was due collection of the biological samples of
the victim by this witness and further he had also referred the body
to the J.J. Hospital, Mumbai for autopsy.
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55. Exhibit 157 is the result of analysis of full pant of the appellant
and hair detected in its zip. The result of analysis indicates that over
the full pant of the appellant which was discovered under section 27
of the Evidence Act, the chemical analyzer noticed human semen
stain admeasuring 3 c.m in diameter on left front upper portion and
two semen stains each of about 2 c.m in diameter on right front
upper portion. The evidence in the form of DNA report is clinching in
nature.
56. Apart from what has been discussed hereinabove, a few
important aspects have also been surfaced, which further strengthen
the fact of commission of rape on the victim by the appellant. The
clothes of the victim viz: shirt, bracier, nicker or jeans had no signs
of resistance. All the clothes on the person of the victim were found
intact including underwear and even sanitary napkin which was
found inside the underwear which suggests that the victim was not
conscious or alive at the time of commission of rape. Pair of jeans
were so tight that at the time of postmortem, it had to be removed by
cutting it's lower portion as it was quite slender or tapering towards
bottom which is also evident from the seizure panchanama Exhibit
49. It is obvious that the appellant might have pulled her jeans up to
the knees and then by raising her waist committed rape. It is also
quite obvious that in a hurry his pubic hairs might have got stuck in
the zip of his pant. Even there were no marks of resistance on his
clothes, which in normal circumstances i.e had the victim been
conscious would have found torn.
57. The next important circumstance is the hut where the
appellant had stayed at the relevant time. It is the case of the
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prosecution that the appellant was residing in a hut which belongs to
P.W.6 - Kashinath Mahadu Bondre. P.W.6 - Kashinath Mahadu Bondre
testified that he is the owner of the land bearing survey No.132 at
village Saavroli situate towards western side of the railway track
where the victim was found dead. According to this witness, he had
given the said land for cultivation to P.W.10 - Navsha Chima Wagh on
batai. P.W.6 - Kashinath Mahadu Bondre used go to the field during
harvesting season. It was a paddy field.
58. Prosecution's case is that P.W.10 - Navsha Chima Wagh had
permitted the appellant to reside in a hut in the said field with his
family as the appellant had no shelter and that he was also his
distant relative. The appellant had been residing in the said hut two
months prior to the incident. P.W.6 - Kashinath Bondre, however,
resiled from his statement as he has expressed his ignorance about
the hut being allotted to the appellant by P.W.10 - Navsha Chima
Wagh. However, during the cross-examination, he was confronted
with those portions from his statement and consequently the
contradictions have been proved through the Investigating Officer
P.W.24 - Sunil Wadke then Police Inspector attached to Shahapur
Police Station. Those portions are marked as Exhibit 129 and Exhibit
130 respectively. The fact that the appellant was residing in a hut of
P.W.6 - Kashinath Bondre has also been fortified by disclosure
evidence under section 27 of the Indian Evidence Act which we shall
discuss in the subsequent paragraphs.
59. P.W. 10 - Navsha Chima Wagh admitted the fact of cultivating
the land of P.W.6-Kashinath Bondre as well as erection of the hut but
denied that he had ever permitted the appellant to reside in the said
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hut with his family. Interestingly, P.W.10 - Navsha Chima Wagh
admits that one Balu Pawar is his maternal brother and the appellant
is a relative of said Balu Pawar. However, he conveniently denied the
fact that the appellant was residing in the said hut. He resiled from
his statement before the Police during his cross-examination by the
prosecutor. He was confronted with the said fact in his statement
before the Police which he denied. However, P.W.24 - Sunil Wadke,
Investigating Officer proved it at Exhibit 131.
60. Thus, it has been proved that the appellant, in fact, had been
residing in the said hut along with his family at the relevant time.
There is one more interesting aspect. P.W.10 - Navsha Chima Wagh
admits in his cross-examination that the appellant used to sell leaves
at Byculla and for that purpose, he used to travel from Asangaon to
Byculla regularly. If the appellant was not permitted by P.W.10 -
Navsha Chima Wagh to reside in the hut, then how he would know
that the appellant goes to Byculla from Asangaon for selling leaves?
This clearly indicates that P.W.10 - Navsha Chima Wagh, perhaps
wanted to save the appellant being his relative and also probably to
avoid further inquiry by the Police. Undisputedly, it was the only hut
in that area of the field of P.W.6 - Kashinath Bondre.
61. The next important circumstance brought by the prosecution is
the subsequent conduct of the appellant which is also relevant fact in
view of section 7 and 8 of the Indian Evidence Act. On 5th
September, 2013 itself during evening hours, he had been to the
liquor shop of P.W.8 - Smt. Gulab Rambabu Agrawal for consuming
liquor. It has come in the evidence of P.W.8 - Gulab Rambabu
Agrawal that she has been doing illicit liquor business at Asangaon.
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The appellant along with two to three customers had been to her
shop on that day. She testified that the appellant had quarreled with
P.W.9-Mangesh Hari Hirankar behind her shop after she had served
them with liquor. She specifically deposed that the appellant had
asked her whether she is interested in purchasing the mobile handset
to which, she replied in the negative as, according to her, she is an
illiterate lady.
62. During her cross-examination, it has been surfaced that she
identified the appellant when he was shown her at the Police Station.
She also admits that she had not seen the mobile handset. We do not
find any reason to disbelieve the testimony of this witness merely
because she had an illicit liquor business at the relevant time and
that she had no occasion to see the mobile handset. It is not the
contention of the defence that the appellant did not offer to sell
mobile handset to this witness. It is not even the defence that the
witness had some axe to grind against the appellant. Her evidence
cannot be thrown overboard merely because she deals in illicit liquor
business.
63. Her evidence has been corroborated in material particulars by
P.W.9 - Mangesh Hari Hirankar who is also an independent witness.
The sum and substance of his evidence is that he along with one
Yogesh and Janu was consuming liquor behind the shop of P.W.8 -
Gulab Rambabu Agrawal in the morning of 6th September, 2013 i.e
on the following day of the incident. At that time also, the appellant
was present over there and asked P.W.8 - Gulab Rambabu Agrawal
whether she would purchase a mobile handset, however, she refused.
It seems that both P.W.8 - Gulab Agrawal and P.W.9- Mangesh
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Hirankar are rustic and illiterate witnesses. It is, therefore, quite
probable that there is some error in stating the correct date of
happening. The evidence is, therefore, clear, cogent and reliable. He
further testified that thereafter he asked for three mugs of liquor for
Rs.60/-. The appellant was acquainted with Janu and, therefore,
Janu offered a mug of liquor to the appellant, upon which, this
witness got angry and slapped the appellant. The reason for slapping
the appellant was that he was talking irrelevant under the influence
of liquor. He had consumed the liquor of P.W.9-Mangesh and,
therefore, P.W.9-Mangesh gave him kick blows due to which the
appellant fell down. Thereafter, this witness went away.
64. On 15th September, 2013, when P.W.9 - Mangesh Hari
Hirankar was called by the Police at the Police Station, he came to
know about arrest of the appellant and also stated before the Police
about the happenings of 6th September, 2013 behind the shop of
P.W.8- Gulab Agrawal. It is interesting to note that even during the
cross-examination by the defence, it has been reiterated that this
witness had seen the mobile handset with the appellant which was of
TATA make. The fact that he had seen the appellant talking with P.W.8
- Gulab Agrawal when he had been there to purchase the liquor has
again been substantiated. A suggestion given to this witness during
cross-examination that because he had a quarrel with the appellant
and he had slapped and pushed him in the bushes, he had deposed
falsely, which he had denied.
65. Testimonies of P.W.8 - Gulab Agrwal and P.W.9 - Mangesh Hari
Hirankar inspire confidence in light of the fact that it is the case of
the prosecution that the victim had a mobile handset of TATA
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Docomo. However,only the SIM card was found lying near her dead
body at the time of drawing spot and inquest panchanama. It is quite
probable that the appellant had thrown out the SIM card from
victim's mobile handset and tried to sell the handset to P.W.8 - Gulab
Agrawal. Had it been a handset with SIM card belonging to the
appellant himself, he would not have offered it for sale alongwith
SIM Card. This is a strong circumstance against the appellant.
Testimonies of these two witnesses could not be rebutted by the
defence during cross-examination; rather it has been fortified that it
was TATA Docomo handset. Unfortunately, the Investigating Officer,
despite efforts, could not recover the handset. That does not ipso
facto mean that there was no such handset of TATA Docomo as the
evidence on record reveals continuous use of TATA handset with SIM
card by the victim bearing Mobile No. 9225396130.
66. P.W.4-Bharat Mohandas Punjwani was summoned by the
Investigating Officer on 7th September, 2013 at Shahapur Police
Station. Clothes of the victim were seized in his presence comprising
a pair of jeans, shirt, nicker, bra and one white piece of cloth
(sanitary napkin). The panchanama is proved at Exhibit 49.
67. Next important circumstance is the discovery of material
objects namely pant and shirt of the appellant which were on his
person at the time of the incident recovered by the Investigating
Officer pursuant to a voluntarily statement made by the appellant
while in the Police custody. P.W.4- Bharat Punjwani was summoned
at Shahapur Police Station on 11th September, 2013. The appellant
was present at the Police Station. Evidence of P.W.4-Bharat Panjwani
indicates that the appellant had confessed his crime. He was ready to
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take the Police to a place where he had kept the clothes which were
on his person at the time of committing the offence. A memorandum
panchanama to that effect was recorded by the Police which is
proved at Exhibit 50. Memorandum panchanama was signed by the
appellant in the presence of P.W.4 - Bharat Punjwani and Manohar
Choudhary.
68. According to this witness, the appellant thereafter, along with
the Police team, boarded a Jeep for Village Saavroli. They proceeded
as per the directions given by the appellant. The vehicle went up to
the farm and thereafter they walked certain distance up to a hut.
The appellant produced some clothes which were hanged in the said
hut. It was an ash coloured full shirt and black coloured full pant.
Those clothes were seized by the appellant under a panchanama
which is at Exhibit 51. A perusal of panchanama Exhibit 51 reveals
that they boarded a Police Jeep bearing Registration No. MH-04-EP-
56. The appellant had occupied the rear seat behind the Driver
namely Tukaram B. Lingale and led the Police to his hut via
government godown. They went to Village Saavroli by crossing the
railway gate bearing No.67/B-2. Distance between railway line near
Asangaon railway station up to the hut was about 240 meters which
was situate in a field.
69. Panchanama Exhibit 51 further gives description of the said
structure which was a temporary small hut covered with plastic
sheet. The hut admeasured 7'x11'x14'. There were two plastic cans
containing water and one containing oil. A small tin of chilly
powder. Few utensils, bed sheets, mats as well as clothes of small
children. There was a hearth made up of three stones in the corner.
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This shows that the hut was occupied by a family. The appellant took
out two plastic bags containing the clothes. He took out a shirt and
pant allegedly worn by him at the time of incident. It was a gray
(ash) coloured full sleeves terricot shirt with a pocket and had a
label on the collar namely "Ruff & Tuff", a black coloured terricot full
pant with two pockets on the front side and one on the rear side.
Buttons had embossed with word " METIC". When the pant was
inspected in the sunlight, two hair strands found in the zip and there
were few faint stains which were hardened.
70. There is no effective cross-examination of this witness on
behalf of the appellant. It transpired that this witness had a
electronic shop in the vicinity of the Police station. However, he
denied that the Policemen are his usual customers. It has been
reiterated that panchanama was drawn by the Investigating Officer in
the hut itself where they were present for more than one and half
hour. It is needless to state that the object of section 27 is to admit
evidence which is relevant to the matter under inquiry, i.e the guilt of
the accused and not to admit the evidence which is not relevant to
the matter. It is equally important that discovery of a material object
is of no relevancy to the question whether the accused is guilty of the
offence charged against him unless there is a connection with the
offence. It is, therefore, the connection of the thing discovered which
renders its discovery as a relevant fact. Further evidence would
demonstrate the said connection.
71. Next important circumstance is the report of Chemical
Analyzer Exhibit 154. Following articles were forwarded for chemical
examination;
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(1) Blood in vials (two) in a plastic container
labeled Ashok Baban Mukane;
(2)Blood in a test tube labeled Ashok Baban
Mukane;
(3)Blood in a test tube labeled Ashok Baban
Mukane;
(4)Pubic hair in a phial labeled Ashok Baban
Mukane;
(5)Nails in a phial labeled Ashok Baban
Mukane;
(6)Semen in phial labeled Ashok Baban
Mukane.
Result of the analysis as per the report can be extracted as under;
REPORT: The DNA extracted from blood detected on ex3
Bermuda (stated to be half pant) and ex4A hair detected
in chain of full pant of Ashok Baban Mukane in F.S.L.M.L
Case No DNA - 1118/13 and blood sample of Ashok
Baban Mukane was typed at 15 STR LOCI and gender
specific Amelogenin locus using PCR Amplification
technique.
No female DNA is detected in ex4 Pubic hair and ex 5
nails of Ashok Baban Mukane
No interpretable DNA profile is obtained from blood
detected on ex4 full pant of Ashok Baban Mukane in
F.S.L.M.L Case No. DNA - 1118/13, exh 3 brassier and ex4
nicker of the victim in F.S.L.M.L. Case No. DNA 1122/13.
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Exhibit 2 blood, exh 3 blood and exh 6 semen are control
samples of Ashok Babak Mukane.
Interpretation:-
1)DNA profiles of blood detected on ex3 Bermuda
(stated to be half pant) and ex4A hair detected in
chain of full pant of Ashok Baban Mukane in
F.S.L.M.L. Case No. DNA - 1118/13 and blood
sample of Ashok Baban Mukane is identical & from
one and same source of male origin. DNA profiles
matched with the maternal and paternal alleles in
the source of blood".
Pubic hair detected in the chain (zip) of the pant of the appellant
could be the result of hurriedly putting on the pant after committing
rape upon the victim. Normally, it sounds improbable that two hair
strands of pubic hair would get uprooted and entangled in the zip. It
may sound insignificant, however, it is pertinent to note that even the
medical evidence clearly indicates that there was forceful rape upon
the victim and the overall circumstances clearly indicate that the
appellant had, after noticing the victim lying near the railway track,
unmindful of the fact whether she was conscious or alive, committed
rape upon her.
72. There is no cogent and clear evidence brought on record by the
prosecution to indicate that it was none other than the appellant who
had inflicted serious injuries on the person of the victim including
smothering, compression of neck or hitting on her head with hard
and blunt object. It is, therefore, difficult to construe that the
appellant was responsible for causing homicidal death of the victim.
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We say so as in normal circumstances, had the victim been conscious
or alive, she would have definitely strongly resisted the appellant
resulting into some scratches or bruises on his person. The victim
was a young able bodied girl who would not have been easily
succumbed to the pressure or the advances of the appellant. In the
absence of any such marks on the person of the appellant would lead
to drawing an inference or can be deduced that the appellant had
committed rape when the victim was either unconscious or was no
more.
73. As already discussed hereinabove, P.W.18- Dr. Dattatray Bhore
had opined about several injuries, contusions and the probable
weapon of the offence used by the assailant in committing the
offence. Suffice it so say that the victim was subjected to continuous
assault with some hard and blunt object as well as brushing against
some rough surface and nagging.
74. The ante mortem injuries noticed on genital region are as
under;
"Labia majora and minora-contusion is seen over
inside surface of labia majora and minora on
both sides. Dark red in colour. Tearing of hymen
is seen on 7 O'clock position on right side with
infiltration of blood is seen in margins of
remaining tags of hymen. The injuries probably
caused by forceful intercourse".
75. The most crucial evidence of the Directorate of Forensic
Science Laboratory vide Exhibit 20 in respect of DNA extracted from
the blood samples of the victim is as under;
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RESULTS OF ANALYSIS
"REPORT:-The DNA extracted from vaginal swab of
the victim in F.S.L.M.L Case No. DNA-1090/13 and
blood samples of the victim and ex1 Ashok Baban
Mukane in F.SL.M.L Case No. DNA - 1077/13 was
typed at 15 STR LOCI and gender specific
Amelogenin locus using PCR Amplification
technique.
No male DNA is detected in exh2 Pubic hair of the
victim in F.S.L.M.L. Case No. DNA-1091/13, ex1
Nail Clippings of the victim in F.S.L.M.L. Case No.
DNA - 1092/13, ex2 Pubic hair, ex3 finger nail
clipping, ex4 toe nail of the victim in F.S.LM.L. Case
No. DNA - 1093/13,
Interpretation:-
1)One of the mixed DNA profiles of vaginal swab
of the victim in F.S.L.M.L. Case No. DNA - 1090/13
and blood sample of the victim is identical & from
one and same source of female origin. DNA profiles
matched with the maternal and paternal alleles in
the source of blood.
2)One of the mixed DNA profiles of vaginal swab
of the victim in F.S.L.M.L Case No. DNA-1090/13
and blood sample of Ashok Baban Mukane in
F.S.L.M.L. Case No. DNA - 1077/13 is identical &
from one and same source of male origin. DNA
profiles matched with the maternal and paternal
alleles in the source of blood.
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3)Two Control male DNA profiles are obtained
from vaginal swab of the victim in F.S.L.M.L. Case
No. DNA - 1090/13".
76. A Single Judge of this Court in case of Reghuvir Desai Vs.
State49 while emphasizing the importance of D.N.A Test and it's
worth in pinpointing with mathematical accuracy observed thus;
"DNA (Deoxyribouncleic acid) is found specially in cell
nuclei which are the foundation of heredity. DNA is
the genetic blue print for life and is virtually contained
in every cell. No two persons, except identical twins
have ever had identical DNA. DNA testing can make a
virtually positive identification when the two samples
match. It exonerates the innocent and helps to convict
the guilty. (See page 249 of Jhala and Raju's Medical
Jurisprudence Sixth Edition). The DNA testing hits the
nail on the head of the accused and is the last and
clinching piece of evidence which shows that it is the
accused and the accused alone who committed the
rape on the victim".
Needless to add that the DNA report had hit the nail on the head of
the appellant in view of its clinching nature.
77. P.W.20 - Dr. Trupti Mukund Rokade had collected the blood
sample, pubic hair, nail clippings and semen samples for DNA
analysis qua the appellant on 13th September, 2013 when she was
attached to Civil Hospital Thane as Medical Officer. She testified that
49 2007 (1) AIR Bom R 132
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the appellant was found capable of doing sexual intercourse. She had
issued a certificate to that effect which is at Exhibit 107. In her cross-
examination by the defence, it is testified that the samples were
given to a Police Officer who had brought the sample collection kit.
The appellant in his statement under section 313 of the Code of
Criminal Procedure while answering question No.20 had clearly
admitted that his blood sample was collected for D.N.A test.
78. P.W.12 - Smt. Kamini Patel, Lady Police Constable along with
the Police staff had been to the spot on 6th September, 2013 at 10.30
a.m. As per the directions of the Investigating Officer, she assisted
him in drawing spot panchanama and also accompanied with the
dead body when it was shifted to Sub-District Hospital, Shahapur for
inquest and thereafter to J.J Hospital. Clothes on the person of the
victim were removed and given in her custody. She had testified that
the Medical Officer had collected the nail clipping and pubic hair of
the dead body and handed it over to this witness.
79. P.W.14 - Pandharinath Pandurang Patil who was then Revenue
Circle Officer attached to Khardi Revenue Circle, at the request of the
Investigating Officer visited the spot of the incident on 7th
September, 2013 and had drawn the sketch map which is at Exhibit
76. The sketch map Exhibit 76 gives an idea as to the exact
location/spot where dead body of the victim was lying between
railway track and the foot way.
80. P.W.22 - Vijay Sadashiv Patil was posted as A.P.I at Shahapur at
the relevant time. He was in the team of the Investigating Officer
and had visited the spot. He had drawn a rough sketch map of the
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scene of occurrence and had directed the photographer to take
photographs. The rough sketch map at Exhibit 114 also gives more or
less topography of scene of occurrence which appears to be abutting
to the railway track surrounded with grass. There is no much
difference in Exhibit 76 and Exhibit 114.
81. The prosecution has succeeded in establishing a nexus between
the appellant and the act of rape upon the victim in view of the
discussion made hereinabove as well as conclusive evidence in the
form of DNA profile. P.W.18- Dr. Dattatray Bhore in his evidence
reiterated that while committing forcible sexual intercourse, there are
bound to be contusions in labia majora and minora over internal and
external surface. He re-affirmed that from the DNA report, it has
been confirmed that the appellant had performed forcible sexual
intercourse with the deceased victim.
82. We must say that the Investigating Officer had conducted
investigation on the aspect of murder of the victim in a most casual
and perfunctory manner. P.W.24 - Sunil Wadke, the Investigating
Officer testified that on 10th September, 2013, at about 8.00 pm,
the appellant was found loitering in a suspicious condition beneath
Asangaon Fly Over Bridge on the railway track and, therefore, he was
nabbed. He disclosed his name as Ashok Baban Mukane. The
evidence reveals that during a discreet inquiry, the appellant is stated
to have confessed that he committed a crime.
83. Confession to a Police Officer is inadmissible in evidence unless
it is made in the immediate presence of a Magistrate, then only, it
can be proved against such person. Thus, the said so-called
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confession is not admissible, however, investigating officer P.W.24-
Sunil Wadke ought to have immediately taken the appellant for
medical examination so that it could have been ascertained as to
whether there are any resistance marks, bruises or abrasions on his
person. We are of the view that perhaps there was no resistance
from the victim because even when the appellant was examined on
13th September, 2013 by P.W.20 - Dr. Trupti Rokade, who had
obtained the blood, semen, nail clipping and pubic hair of the
appellant, did not say that she noticed any external injuries on his
person. There is every possibility of committing rape upon the victim
when either she was unconscious or there is every possibility of she
being brutally assaulted by someone else before she was subjected to
rape by the appellant.
84. The learned Additional Sessions Judge erred in holding the
appellant guilty of the offence of committing murder of the victim
sans any convincing and satisfactory evidence on record. No doubt,
in normal circumstances, one may be compelled to think or presume
that due to resistance from the victim while attempting to commit
rape, the appellant might have smothered her face with a bag or
throttled her neck resulting into her death. However, as already
stated, in the absence of any marks or bruises or abrasions on the
person of the appellant, it is difficult to reach such conclusion.
Moreover, the Investigating Officer had failed to produce hard and
blunt object alleged to have been used in giving blows over the head
of the victim.
85. The injuries on the scalp as described in the autopsy report
hereinbefore are so grave and severe that those injuries would not
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have been possible without the use of a hard and blunt object and
with full force. Had the victim been smothered with the bag which
was lying beside her as alleged by the prosecution, there would have
been some evidence in the form of saliva or other liquid sticking over
it. There is no such evidence on record. Under such circumstances,
we find it difficult to hold that the prosecution has established any
nexus between the death of the victim and the appellant.
86. P.W.25 - Anupkumar Nivruti Shinde was working as a Senior
Clerk in the Institution where the victim was prosecuting her studies.
His evidence is restricted to the fact that the victim was the student
of Mechanic Machine Tools and Mechanic Trade. It was a two years
course and the training hours were from 7.30 am to 3.00 pm. This
witness had produced muster roll extract for the period from 1st
August, 2013 to 6th September, 2013. It has been proved that on
5th September, 2013 i.e on the date of the incident, the victim had
attended the College up to 3.00 p.m. This witness was not cross-
examined by the defence. The victim's last location as noticed from
her mobile and tower location as per the evidence on record was
somewhere near the spot as per the evidence of P.W.22- P.I. Vijay
Sadashiv Patil. The evidence reveals that the SIM card which was
seized from the spot of the incident was of TATA Docomo company
bearing No.100003557A019 (80D936FF). The mobile number was
9225396130. The evidence also indicates that the said TATA Docomo
mobile bearing number 9225396130 was recorded in the name of
P.W.1-mother of the victim. ESN number is 80D936FF. The evidence is
limited to the aspect of indicating the details of mobile phone and
location of the victim on 5th September, 2013 and nothing more.
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87. Call detail record indicated that on 5th September, 2013 at
about 16:54:34 location of the deceased was at Asangaon Railway
Station. This fact is not much in dispute. What is important to note is
that apart from the appellant, Investigating Officer had nabbed three
suspects namely Shahid Shaikh, Prasad and Balu Pawar. They were
interrogated by the Investigating Officer. Their blood samples were
collected for the purpose of D.N..A analysis. P.W.16 - Dr. Mahendra
Kendre had examined suspect Balu Pawar on 4th October, 2013 when
he was produced before him by Shahapur Police Station with a
requisition for collection of his blood samples for DNA. The said
letter is proved at Exhibit 83. The blood sample was collected by this
witness and handed over to the concerned Police Personnel. A case
paper to that effect is proved at Exhibit 84. The defence declined to
cross-examine this witness.
88. P.W.17- Dr. Mamta Alaspurkar examined suspect Shahid and
Prasad on 3rd October, 2013. She collected their blood samples for
the purpose of DNA profile and handed over it to the Police
concerned. Requisition is at Exhibit 86 and case paper is at Exhibit
87. After analyzing the respective blood samples of these three
suspects by the Chemical Analyzer of the Forensic Science Laboratory,
it yielded no results, in the sense, their DNA profiles did not match
with that of the victim. The examination report is proved at Exhibit
158.
89. As such, the prosecution has succeeded in establishing that it
was none other than the appellant and the appellant only who had
committed rape upon the victim. The Investigating Officer had
interrogated three suspects. Those three suspects were nabbed by
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the Investigating Officer as they were found conversing with the
victim through their respective mobile handsets. Except the
conversation between those three suspects qua the victim on her
mobile handset, nothing incriminating was found by the Agency.
However, from the aforesaid medical evidence possibility of their
complicity has been clearly ruled out and as such they have been
allowed to get scot free.
90. As already held in the catena of the decisions whenever a case
bases on the circumstantial evidence, it is necessary for the Court to
find out whether the circumstances on which the prosecution relies
are established by satisfactory, cogent, clear and convincing evidence.
It is equally important to ensure that the circumstances are of such a
nature as to exclude any other hypothesis, save and except one that
the appellant is guilty of the offence with which he is charged. Here,
from the overall evidence on record and the discussion, the
prosecution has established with clear and cogent evidence which is
consistent with the sole hypothesis that it was the appellant who had
committed rape upon the victim.
91. While hearing the appellant on the point of sentence, an
altogether different story has been put forth in the form of an
affidavit dated 8th December, 2021. We have extracted relevant
portion from the affidavit of the appellant which reads as under;
"6. I say that I am innocent, and I have been
falsely implicated in the above-said offence by the
investigation officer, namely Mr P.I. Sunil Vadke. At
that time, my wife was detained and arrested by Mr.
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Vadke. At that time, my confession statement was
forcefully recorded by the Investigation Officer.
A. I say that on 7th September, 2013 at about
3.00 pm I was called to the Shahapur Police Station
on the pretext of inquiry. Thereafter at about 7.30
pm I was allowed to go home by the Police Officer
and immediately they took my wife Bharati to the
Police Station. Thereafter Police released my wife at
about 10.00 pm. I say that person namely Shahid
was called in the Police Station on the same day.
Shahid is a son of Ramzan Shaikh who is well
known as 'Ramzan Sheth' .I say that Mr. Ramzan
Sheth is a wellknown Contractor and financially
very sound. Mr. Ramzan Sheth came to the Police
Station and he was there for some time and he took
away Shahid with him.
B. That on 8th September, 2013 at 8.00 am
when I was on my way to vegetable market near
Asangaon Bridge officers from Shahpur Police
Station caught me and took me to the Shahapur
Police Station. At that time one Police Officer Mr.
Ganpatrao Pingle slapped me.
C. When they took me to the Police Station, I
was assaulted by 4-5 Police Officers viz. P I Vadke,
Prashant Waghunde and others. I say that at that
time PI Vadke kept some money on table and
offered me to confess offence and the same was
denied by me;
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D. At that time I was forcefully given liquor to
drink, as at that time I was not able to understand
the situation as to why Police were offering me the
liquor. I say that at that time the Police Officers
offered me that if I confess the offence they will give
lakhs of rupees and also they assured that they will
maintain my wife and children. The said offer was
also denied by me.
E. PI Wadke strictly asked me to accept the said
offer or else I have to pay them. I informed them
that I am having my family and I can maintain them
myself and therefore I do not require your any
amount.
F. Thereafter, they called my wife Bharati in the
Police Station. In front of my wife I was assaulted
during entire night of 8th September, 2013. Police
also threatened me if I refuse the confess the
offence they will implicate my wife in the matter as
a accused.
G. I say that on next day i.e 9th September,
2013 I was not in a position to stand due to assault
upon my legs. I was given electric shock by PI Vadke
and one Desle to confess the statement. My wife
treated me by putting her dupatta on my legs in
lock-up. I say that it was informed me that my
childrens were standing outside the Police Station.
When I was in the Police Station forcefully my
semen samples were collected.
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H. On 11th September, 2013, I was produced
before the Hon'ble Magistrate Court. PI Wadke
threatened me if I disclose the date of arrest and
assault in the Court then he will kill me by putting
bullets in my head and also to my wife in the Police
Station. I say that due to this crucial situation I
could not took a decision whether to save myself or
my family. So I was silent. My statements came to
be recorded forcefully. I say that during my entire
remand period my wife was kept in the Police
Station. Investigating Officer also asked me to
confess the statement regarding theft and sale of
mobile, which I could not.
I. Due to the distorted mentality of the
investigating officer's and deliberate mistakes
systematically committed in this matter just to save
the real culprits from the clutches of law, based
upon the facts, the punishment was given by the
trial court, the life of my dependents family
members and me are ruined".
92. At the outset, most of the contents of the affidavit which has
been filed only when the appellant was to be heard on the point of
sentence, are incorrect and misleading for the simple reason that
whenever the appellant was produced during the trial before the
Additional Sessions Judge, he could have instructed his lawyer and
brought all these facts to the notice of the Court. He could have
stated everything during his statement under section 313 of the Code
of Criminal Procedure what he had deposed in this affidavit before
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this Court. Statement under section 313 of the Code of Criminal
Procedure is a direct dialogue between the accused and the trial
Court without any intervention of the Advocate. This affidavit is
silent as to why the appellant did not disclose the so-called facts
before the trial Court and, therefore, it can be definitely said to be a
false affidavit only to garner sympathy and to divert attention of the
Court. He states in the affidavit that on 7th September, 2013 at about
3.00 p.m, one Shahid son of Ramzan Shaikh a well-known
Contractor and financially sound person was present at the Police
Station. After some time, the said Ramzan took away his son Shahid
from the Police Station. The appellant does not disclose as to why
and how, he had named the said person in his affidavit and what was
the role of his son. There is no further clarity on that aspect. The
falsity of the affidavit is apparent as in his statement under section
313 of the Code of Criminal Procedure when it was brought to his
notice that his blood samples were collected for DNA test in Hospital
at Shahapur, he answered in the affirmative. However, in the
affidavit, he deposed that on 9th September, 2013, when he was at
the Police Station his semen samples were forcefully collected. It is
difficult to believe as semen samples cannot be collected forcefully,
that too by a Police Officer at the Police Station.
93. Falsity of his contention is also apparent from the evidence of
P.W.20 - Dr. Trupti Rokade who had testified that she had collected
blood samples, pubic hair, nail clipping and semen sample of the
appellant for the purpose of DNA on 13th September, 2013. If that is
the evidence of the medical officer, it is quite apparent that there was
no question of forcibly collecting his semen samples by the Police
Officer on 9th September, 2013 at the Police Station. Further, as per
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evidence of P.W.24- Sunil Wadke, the appellant was arrested on 10th
September, 2013 at about 8.00 p.m when he was found loitering in
suspicion condition beneath Asangaon Fly Over Bridge on the railway
track. This again falsifies his contention that his semen samples were
collected on 9th September, 2013. It is obvious that the appellant tried
to gain undue advantage of the fact that the samples collected from his
person which were sealed and were kept safely in Almirah of P.W. 24 -
Sunit Wadke, Investigating Officer for three days. Thereafter, it was sent
for chemical analysis through carrier i.e P.W.15- Shridhar Korphade,
Police Constable attached to Shahapur Police Station vide C.R. No.I-
181-2013. The acknowledgment is at Exhibit 81.
94. Other recitals of his affidavit that he was offered money by P.W.24
- Sunil Wadke, P.I which were kept on the table at the Police Station
and asked him to confess the guilt is also something, no prudent man
would believe, for, these are all afterthoughts only to gain sympathy of
this Court as already stated above. It is not clear what was the exact
offer alleged to have been made to the appellant by P.W.24 - Sunil
Wadke. From the recitals of the affidavit, it can be easily inferred that
this is the brainchild of a professional only to get over from capital
punishment.
95. The fortiori of the entire discussion made hereinabove is that the
prosecution has failed in establishing the charge of murder against the
appellant and, therefore, the findings returned and the sentence
awarded needs to be reversed by acquitting the appellant of the said
charge. Interference in the impugned judgment of conviction and
sentence is, therefore, warranted to that extent.
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96. However, since the prosecution has succeeded in establishing the
charge of rape beyond all reasonable doubts, we do not intend to
interfere in the finding arrived at by the learned Additional Sessions
Judge. Now, to the order.
:ORDER:
[1] The appeal is partly allowed.
[2] The reference of the confirmation of death sentence submitted by
the learned Additional Sessions Judge, Kalyan in Sessions Case No.47 of
2014 under section 366 of the Code of Criminal Procedure is answered
in the negative.
[3] The conviction of the appellant - accused under section 302 of
the Indian Penal Code is set aside and he stands acquitted of the said
offence.
[4] Fine amount of Rs.5000/- be refunded, if already paid by him;
[5] The conviction and sentence of the appellant - accused of the
offence punishable under section 376 (1) of the Indian Penal Code with
fine stands confirmed;
[6] As per an order of this Court dated 30th November, 2021, the
appellant was produced from Nagpur Central Prison on production
warrant for hearing him on the point of sentence. He shall be sent back
to Nagpur Central Prison for undergoing remaining part of his
substantive sentence.
[7] The District Legal Services Authority, Thane shall pay
compensation to P.W.1 - mother of the victim in the sum of
Rs.5,00,000/- (Rs. Five Lakhs only) within six months from the date of
receipt of this order;
[8] Order as regards disposal of muddemal property is maintained.
[PRITHVIRAJ K. CHAVAN, J.] [SMT. SADHANA S. JADHAV, J.]
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