Bombay High Court
Baburao Ukandu Sangerao @ Baburao ... vs The State Of Maharashtra on 15 September, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:20052-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL CONFIRMATION CASE NO. 01 OF 2021
The State of Maharashtra
Through Police Station, Bhokar,
Taluka Bhokar, District Nanded. ... Applicant
Versus
Baburao Ukandu Sangerao
@ Baburao Malegaonkar ... Respondent
.....
Mr. R. V. Dasalkar, APP for State.
Ms. Rebecca Gonsalvez a/w Ms. Shreya Rastogi & Ms. Pratiksha
Basarkar i/by Mr. Vishal A. Bagdiya, Advocate for the Respondent.
.....
WITH
CRIMINAL APPEAL NO. 280 OF 2021
WITH
CRIMINAL APPLICATION NO. 2382 OF 2021
WITH
CRIMINAL APPLICATION NO. 2746 OF 2021
WITH
CRIMINAL APPLICATION NO. 2701 OF 2022
Baburao Ukhandu Sangerao @
Baburao Malegaonkar
Age - 36 years, Occu- Labour,
R/o. Divshi (bk), Taluka - Bhokar,
District Nanded. ... Appellant
[Accused]
Versus
1. The State of Maharashtra
Through Police Station, Bhokar,
Taluka Bhokar, District - Nanded.
2. Madhav s/o Gajraj Surod,
Age - 36 Years, Occu- Agriculture,
R/o. Divshi (Bk), Taluka - Bhokar,
District Nanded.
[Original informant-father of deceased] ... Respondents
::: Uploaded on - 15/09/2023 ::: Downloaded on - 16/09/2023 09:19:51 :::
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.....
Ms. Rebecca Gonsalvez a/w Ms. Shreya Rastogi & Ms. Pratiksha
Basarkar i/by Mr. Vishal A. Bagdiya, Advocate for the Appellant.
Mr. R. V. Dasalkar, APP for Respondent No.1-State.
Mr. R. M. Deshmukh, Advocate for Respondent No.2 [appointed]
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 11/08/2023
Pronounced on : 15/09/2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. Vide instant proceedings, on one hand, State is seeking
confirmation of death sentence awarded by Additional Sessions Judge
and Special Judge [under Protection of Children from Sexual Offences
Act, 2012], Bhokar dated 22.03.2021 and 23.03.2021 in Special
[POCSO] Case No. 06 of 2021; whereas, on the other hand, convict is
also assailing the same judgment on its legality, maintainability and
sustainability. Resultantly, both proceedings are taken up and decided
by way of common judgment.
CASE OF PROSECUTION IN TRIAL COURT IS AS UNDER:
2. Afternoon of 20.01.2021 turned out to be the darkest of all
times and also the last for the little soul born to PW1 and PW10.
Unmindful of the outrageous and perverse intentions of her so-called
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"uncle", she innocently took a last run to be in his company.
According to prosecution, this is a classic illustration of how blatant
and patent breach of trust can be committed by a person who is like a
guardian to child. Accused has victimized a girl child, who, on seeing
him arrive, ran towards him only to be ravished at his hands in the
very vicinity, where her parents were labouring, probably to give their
blood and flesh a bright future. Unfortunately, all their hopes and joys
were dashed and shattered within few hours that late afternoon.
3. Story of prosecution as is unfolded from the FIR is that, PW1
informant-father and PW10 mother alongwith grandmother of the
victim went for their daily agricultural activities in their own field.
Accused-appellant was engaged a year back by PW1 for herding
buffaloes on yearly basis. As such, accused was well acquainted with
informant, his family members including the victim, who was
reported to be barely six years of age. On fateful day after mid-day
meals at home, when informant and his wife PW10, were about to
return to resume their agricultural work, the victim insisted to join
them and finally they yielded to her demand and took her along with
them and on the way, informant also purchased snacks (kurkure) and
they all reached the field.
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4. According to prosecution, around 2.15 p.m. or so, as usual,
accused untied the buffaloes to take them for grazing on the pastures.
Seeing accused arrive, victim ran towards him after greeting him and
was in his company and well within the sight of informant-father and
her mother i.e. on a trench ( bandh) of the field. After a short while,
when buffaloes were seen entering the field, informant gave calls to
his servant i.e. accused, but neither he nor the victim were seen at the
spot where she was seen sitting and chatting with accused.
Consequently, search activity was undertaken. The informant updated
PW2 Sk. Imamsab @ Gulab and PW3 Madhav Karewad, who were in
the square of the said village and all three went in search of both, the
child as well as the accused. During twilight time, in the river bed
they came across footwear and frock of the child and at a short
distance, on further search, they came across the ghastly scene. They
noticed naked dead body of the child with several injuries and bite
marks all over the body. On further search, according to prosecution,
in the very vicinity, at a short distance from the dead body, accused
was also spotted in naked condition and on being questioned, he
confessed raping and murdering the child. The Bit Jamadar and other
Constables, who had also reached there, took accused in custody and
thereafter, informant PW1 set law into motion.
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5. In the above backdrop, PW15 P.I. Vikas Patil [IO], who was
entrusted with the investigation, undertook the same and after
completing it and on gathering sufficient evidence, he chargesheeted
accused.
Learned trial Judge, who was seized with the matter, framed
and explained charge and on its denial, permitted the prosecution to
adduce evidence. On completion of recording of evidence, parties
were allowed to advance arguments and after appreciating and
analyzing the evidence on behalf of prosecution, learned trial Judge
accepted the case of prosecution as proved and thereby held accused
guilty for offence punishable under Sections 302, 363, 376(A), 376(2)
(j)(m), 376-AB, 377 of the Indian Penal Code [IPC] and Sections 4, 6,
8, 10 and 12 of the Protection of Children from Sexual Offences Act,
2012 [POCSO Act]. The learned trial Judge further came to a specific
finding that the case fell in the "rarest of the rare" category and
thereby awarded death sentence.
Now before us, by way of instant proceedings bearing
Confirmation Case No.1 of 2021, the State is seeking confirmation of
the same. At the same time, the accused is also questioning the
maintainability, sustainability and legality of the judgment as well as
the sentence awarded, by preferring appeal bearing Criminal Appeal
No. 280 of 2021.
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6. Heard both sides extensively. The sum an substance of their
submissions are as under.
SUBMISSIONS
ON BEHALF OF STATE
7. In support of confirmation, learned APP appraised us about the
facts of prosecution case in trial court. According to him, deceased
victim, daughter of PW1 informant and PW10 mother, was barely six
years of age. That, accused was employed as a servant to take care of
the live stock of informant. That, as such, he was well acquainted
with the deceased and, it is pointed out that, she even addressed him
as "kaka" [uncle]. However, according to learned APP, her such trust
and faith was shattered by accused, who lured her to the remote place
and to satisfy his lust, he not only raped and sodomized her cruelly,
but even mercilessly strangulated her to death.
8. Learned APP pointed out that the innocent child was kidnapped
and taken while she was sitting alone enjoying her snacks. He
emphatically submitted that deceased was seen in the company of
accused by her own parents and they, even in their wildest dreams,
had not imagined that, accused would take disadvantage and take
their child to ravish her to satisfy his lust. He pointed out that the
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nature and number of injuries clearly demonstrate that in the most
inhuman and cruel manner, sexual assault was inflicted on the child
and it is so evident from the evidence of autopsy doctor PW5 Dr.
Kalaskar. He further emphasized that there were as many as 47
independent injuries including bite marks all over the body as well as
private parts and thus, it is his submission that, rape and murder is
outrageously wicked.
9. He invited our attention and took us through the evidence of
PW1 and PW10 and would submit that, the unfortunate parents have
deposed about their child accompanying them from home to the field.
That, she was made to sit on a trench and in the afternoon session of
the work, accused was seen arriving at the spot and he was further
seen by both parents interacting with the child. He was only person in
the company of their child and she was resultantly last seen with him.
He pointed out that when it was realized that she was missing,
extensive search was undertaken which revealed that at a shorter
distance, on the bed of river, accused had committed sexual act
followed by murder. Dead body of the child was found lying in naked
condition and not only her belongings but even the belongings of very
accused were lying there confirming his involvement. That, accused
was also apprehended from the same spot, that too in naked
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condition, and so, according to learned APP, what more is required to
hold accused responsible.
10. Learned APP further submitted that there is confession by
accused to independent witnesses like PW2 Sk. Gulab, PW3 Madhav
Karewad and PW12 PC Namdev Shirole, who have also stepped in the
witness box to testify to that extent. Their such evidence to that
extent has remained steadfast. Thus, it is his submission that, there is
not only overwhelming evidence, but the evidence is also of sterling
quality. He further pointed out that apart from confessional
statement, accused was also found to have suffered injury marks.
Physical evidence, which was seized from the crime scene, was seized,
sealed and got analyzed. DNA samples were also gathered and
subjected to analysis. Therefore, apart from clinching evidence of
parents and independent witnesses, it is his submission that, there is
forensic evidence pin-pointing involvement of accused. Even forensic
expert is made to step into the witness box. That, he had narrated the
procedure undertaken by him and elaborated his positive findings.
Learned APP hastened to add that though there are minor
irregularities in the procedure of analysis, it is his submission that,
such lapses will not erode or render forensic evidence inadmissible in
its entirety.
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Consequently, it is his submission that there is legally
acceptable and clear evidence about accused to be the only
perpetrator of the heinous crime.
11. Learned APP further took us through the judgment under
challenge and would submit that learned trial Judge, after correctly
appreciating the evidence, before awarding capital punishment, has
noted both, aggravating and mitigating circumstances, and after
analyzing the same, finding aggravating circumstances to be
outweighing mitigating circumstances, death sentence has been
rightly awarded. According to him, it is in consonance with the
sentencing policy and settled legal position. That, learned trial Judge
has assigned sound reasons as to why, according to him, the case fell
in the rarest of rare category.
12. Thus, according to learned APP, the Judgment being sound and
based on settled legal principles, which is in consonance with the
evidence on record, which unflinchingly point finger to the accused
regarding his involvement, the sentence of death so awarded by
learned trial Judge deserves to be confirmed.
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13. Learned APP took recourse to and relied on the judgments in
Omprakash S/o. Gayaram Nirmalkar v. The State of Maharashtra ;
2016 ALL MR (Cri) 3337 on the point of admissibility of scientific
expert's evidence, Raju Jagdish Paswan v. State of Maharashtra ;
(2019) 16 SCC 380 on the point of commuting death sentence
without remission, Ajay Kumar Ghoshal & Ors. v. State of Bihar and
Anr. ; (2017) 12 SCC 699 on the point of permissibility of de novo
trial only when appellate court is satisfied that it has occasion on
miscarriage of justice, Bachan Singh v. State of Punjab ;
MANU/SC/0055/1982, (1982) 3 SCC 24, Machhi Singh & Ors. v.
State of Punjab ; MANU/SC/0211 /1983, AIR 1983 SC 957,
Dhananjoy Chatterjee v. State of West Bengal ; MANU/SC/
0626/1994, Khushwinder Singh v. State of Punjab ; MANU/SC/0318/
2019 on the point of rarest of the rare case and The State of
Maharashtra v. Ramkirat Munilal Goud ; [Confirmation Case
No.1/2019 (Bombay High Court)] on confirmation of death sentence.
ON BEHALF OF THE APPELLANT-ACCUSED
14. Before questioning the legality and maintainability of the
impugned judgment, learned counsel for accused raised a
fundamental objection i.e. whether in the case in hand there was at
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all a fair investigation and even a fair trial. She pointed out that
apparently to secure conviction, an open and shut case has been
projected. She pointed out that it is the allegation of prosecution that
accused was apprehended from the spot, that too in naked condition
and only such circumstance seems to have prevailed over the opinion
of learned trial Judge. She pointed out that infact there is no
independent evidence, except testimony of PW1 and PW10 regarding
seeing deceased to be in the company of accused. According to her,
the entire case of prosecution is rested only on extra-judicial
confession, which, according to her, is in presence of police and
therefore, apparently hit by Sections 25 and 26 of the Indian Evidence
Act. She strenuously submitted that law is fairly settled that evidence
in the form of extra-judicial confession is inherently weak in nature.
On the point of presence of police at the time of alleged confession,
she invited our attention to the evidence of PW2 Sk. Gulab, PW3
Madhav Karewad and PW12 PC Namdev Shirole. She further added
that it is also evident from the very case of prosecution witnesses,
including IO, that a huge mob had gathered near the scene of
occurrence and it is succumbing to their pressure, accused was
apprehended and even looked up on as a real culprit before facing
trial. She would further strenuously submit that no independent
efforts were made by investigating machinery to investigate as to
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whether apprehended accused was really involved or not. According
to her, the manner of investigation clearly suggests that there is utter
disregard to the acknowledged procedure for investigation and infact
it is unfair one, merely with intention to show the case as solved. In
support of unfair investigation, she pressed into service ruling in the
case of Ankush Maruti Shinde and others v. State of Maharashtra ;
(2019) 15 SCC 470 and State of Uttar Pradesh v. Wasif Haider and
others; (2019) 2 SCC 303.
On the point of lapses in investigation, she has sought reliance
on Ganesh Bhavan Patel v. State of Maharashtra ; (1978) 4 SCC 371,
State of Gujarat v. Kishanbhai and others ; (2014) 5 SCC 108, Reena
Hazarika v. State of Assam ; (2019) 13 SCC 289, Kanhai Mishra Alias
Kanhaiya Misar v. State of Bihar : (2001) 3 SCC 451, Parminder Kaur
alias P.P. Kaur Alias Soni v. State of Punjab ; (2020) 8 SCC 811 and
Jaikam Khan v. State of Uttar Pradesh ; 2021 SCC OnLine SC 1256.
15. On the point of fair trial, she advanced submissions that here,
trial was also conducted in undue haste and hurry. She pointed out
that record of the trial court clearly suggests that unfortunately, the
Bar members of concerned court had resolved not to defend the
accused and so legal aid was given to him. That, resultantly, there
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was no quality representation of accused. She invited our attention to
the roznama and would submit that even no sufficient time was
granted to the defence counsel to properly represent accused. She was
very vociferous in submitting that even insufficient time was granted
to answer the crucial aspect of sentencing. On this point, she seeks
reliance on the case of Mohd. Mannan Alias Abdul Manan v. State of
Bihar ; (2020) 2 SCC (Cri.) 382. She would submit that, learned trial
Judge concluded the finding and granted only one day to reflect upon
sentencing. Resultantly, it is her submission that, here is a case
wherein, apart from unfair and motivated investigation, there is
denial of fair trial also.
16. She next submitted that though prosecution claims to have
apprehended accused from the spot, according to her, there is no
ocular account or direct evidence in that regard and therefore, case of
prosecution is rested on circumstantial evidence. She reiterated the
settled legal position and essential requirements, as regards to
manner of appreciation of a case based on circumstantial evidence
and the cardinal principles to be borne in mind while appreciating
such a case. She invited our attention to the five circumstances
pressed into service by prosecution during the trial, i.e. (1) Last seen
together; (2) Extra-judicial confession; (3) Accused apprehended
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while in naked condition; (4) Seizure of articles including clothes and
(5) DNA analysis report.
17. Elaborating on above circumstances, i.e. on the point of last
seen together, it is her submission that there is no witness seeing
accused talking with the victim or they both leaving together.
According to her, informant father is silent to that extent and even
PW10 mother has improvised her version to that extent and omission
to that extent is also got proved through IO. Thus, according to her,
there is no iota of evidence regarding so called talks between victim
and accused that afternoon near the field. She would point out that it
has come in the very evidence of IO and even in the cross-
examination of prosecution witnesses that, in the vicinity of spot or
adjoining to it, there were other agricultural fields and several
persons were working therein. That, the vicinity, in which there being
a river, was frequented by several persons which too is admitted by
the IO and so she strenuously submitted that possibility of someone
else to be involved also cannot be ruled out. She pointed out that
persons working in the vicinity of the spot are also surprisingly not
examined, who could have been the best and independent witnesses.
She invited our attention to the testimony of PW1 and PW10 and
submitted that father has admitted that the girl use to visit the field
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alone and even go back home alone. Therefore, there are several
possibilities about deceased to be going missing. Learned counsel
pointed that there is material omission in the testimony of PW10
mother about victim giving call to the accused and running towards
him. Thus, according to her, the only evidence, that too of parents, by
no means can be applied in favour of circumstance of last seen
together.
It is further submitted that, admittedly dead body was found at
such a spot which is a public place and was open and free for access
to one and all. Therefore, in absence of cogent evidence on the point
of accused to be only person in the company of deceased, it is her
submission that said theory cannot be pressed into service or applied,
which, according to her, is unfortunately done by prosecution in this
case and even is accepted by learned trial Judge without getting
satisfied.
Pointing to the evidence of PW2 Sk. Gulab and PW3 Madhav
Karewad, it is submitted that their evidence also is of no avail on the
point of last seen together as they had not seen accused and deceased
to be in each other's company at any point of time. The following
features, according to learned counsel, would indicate that appellant
was never seen going in the company of victim.
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Firstly, PW1 informant not uttering about deceased to be in
the company of accused to PW2 Sk. Gulab, PW3 Madhav
Karewad, PW12 PC Namdev Shirole or PW15 IO and rather
his name is finding place directly in the FIR, which too is
registered after almost 7 to 8 hours of the victim going
missing.
Secondly, missing not registered inspite of visit of
grandfather of the victim at 5.30 p.m. to police station.
Thirdly, no search made of the victim at her house or even
at the house of accused and PW1 informant directly going
in search in village Divshi and village Nighwa.
Fourthly, exact distance between the spot where deceased
was allegedly sitting and the alleged scene of occurrence is
not established or demonstrated and even the spot where
allegedly accused was spotted away from the dead body is
also not established.
For above reasons, she would submit that with such quality of
evidence, it is apparent that implication of accused is merely on
suspicion which never takes place of a proof. Learned counsel also
narrated the settled legal position on the point of last seen together
and would submit that here, there is apparently a gap of over four
hours between so called last seen and deceased being found dead and
resultantly, it is her submission that, said theory cannot be taken
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recourse to, to implicate accused. On this point, she sought reliance
on State of Goa v. Sanjay Thakran and another ; (2007) 3 SCC 755
and Anjan Kumar Sarma and others v. State of Assam ; (2017) 14
SCC 359.
18. On the circumstance of extra-judicial confession, it is her
submission that at the outset, the said confession is inadmissible being
hit by provisions under Sections 25 and 26 of the Indian Evidence Act.
She strenuously submitted that it is settled position that an extra-
judicial confession is a very weak type of evidence and can never be
applied to fasten guilt. She pointed out that prosecution witnesses are
marking presence of police personnel and as such, so called extra-
judicial confession being made to police, is rendered insignificant. She
pointed out that for the best reasons known to prosecution, said
police personnel are not examined by prosecution and this amounts to
withholding important witness and even adverse inference needs to
be drawn against the prosecution. According to her, there was no
reason for appellant-accused to confess to PW2 Sk. Gulab or PW3
Madhav Karewad, who were almost strangers to him. She would
strenuously submit that in presence of huge gathering and angry mob,
who was admittedly about to lynch accused and had infact also given
thrashing to him considering the injury marks on his person, by no
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stretch of imagination so called confession could be said to be
voluntary one. On this count, she seeks reliance on the ruling of
Param Hans Yadav and Sadanand Tripathi v. State of Bihar and
others ; (1987) 2 SCC 197, para 8. While concluding on this
circumstance, she urged that even otherwise, extra-judicial confession
being most weak type of evidence, according to her, the same ought
not to have been readily accepted by the learned trial Judge.
19. Criticizing the third circumstance about accused to be found on
the spot in naked condition, she would submit that except story of
prosecution witnesses, who are otherwise unworthy of credence,
there is no contemporaneous evidence about accused found to be in
naked condition. She would question as to if accused was
apprehended in such condition and if his clothes were found lying on
the spot, in what condition he was taken to police station? According
to her, it was expected of the investigating machinery to draw a
distinct panchanama at the very spot itself about accused to be in
such condition. She pointed out that, infact there is none in that
regard. According to her, if it was so, then why this aspect is missed
even in the inquest panchanama. She further questioned that when
several persons were involved in so-called search and when
prosecution claims about apprehending accused in such condition,
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then, why other villagers or independent witnesses are not examined
by prosecution to fortify their such case.
Learned counsel would submit that apart from above, even
there are serious lapses on the part of investigating machinery in not
forwarding accused for medical examination the same evening inspite
of it being mandatory. She pointed out that surprisingly, after three
days of arrest, accused was shown to be produced for medical
examination. According to her, whatever injuries were noticed on the
person of accused, are also quite possible on account of thrashing
given by angry mob. She brought to our notice General Diary Entry
No. 30 of 2021 noted at 7.33 p.m. wherein there is reference of
accused being forwarded to Rural Hospital on 20.01.2021 on account
of suffering injuries as a result of beating by the mob and for issuing
opinion to that extent. She would accuse prosecution for deliberately
suppressing medical examination report dated 20.01.2021 inspite of
availability of General Diary Entry. According to her, only report of
alleged medical examination dated 23.01.2021, which too is silent
about age of injuries on the person of accused, is placed on record.
She has condemned and questioned the prosecution on this count by
submitting that even the so called doctor, who examined accused on
20.01.2021 is withheld by prosecution. Concluding on above
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circumstance, she submits that, apart from suppressing best evidence,
prosecution has failed to prove beyond reasonable doubt that
appellant was found in naked condition and was so apprehended. She
reiterated that there is no iota of evidence in support of such
accusation.
20. While attacking the circumstance of recovery and discovery, she
pointed out that even going by the timeline stated by prosecution,
there is apparently 17 hours delay in causing seizure. She pointed out
that around 6.30 p.m. or so, spot was alleged to be visited by
prosecution witnesses including police personnel, but even no
immediate spot panchanama was drawn, rather it was drawn on the
next day and, according to her, there is no evidence to show that for
the entire night and half of the next day, the spot was cordoned and
secured to preserve the physical evidence. She pointed out that the
above precaution has not been taken inspite of prosecution claiming
to have deployed adequate police force. To buttress the above
submissions, she would invite our attention to the report of Regional
Forensic Science Laboratory [RFSL], Nanded dated 21.01.2021
regarding spot to be not secured. At this juncture, it is also her
submission that when the exercise of panchanama was going on,
there was presence of forensic personnel, but they are not made to
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gather or collect physical evidence. According to her, when the very
crime scene is not shown to be protected, possibility of tampering and
contamination of evidence cannot be ruled out.
She next emphasized that here, there is no link evidence or
custody evidence to rely on the so called seizure. She pointed out that
where, when and in which condition the so called seizure was kept
has not been demonstrated by prosecution. According to her,
malkhana/muddemal register about safe custody of the seizure, not
being produced, there is a valid question about very safe custody
evidence. She pointed out that apart from above, there is delay in
dispatching seizure, further rendering the case of prosecution
doubtful. On this aspect, learned counsel seeks reliance on Dhal
Singh Dewangan v. State of Chhattisgarh ; (2016) 16 SCC 701 and
The State of Maharashtra v. Krushna s/o Ramrao Ridde and another ;
2017 ; SCC OnLine Bombay 7670.
On the point of chain of custody, she seeks reliance on State of
Rajasthan v. Gurmail Singh ; (2005) 3 SCC 59, State of Uttar Pradesh
v. Mohd. Iqram and another ; (2011) 8 SCC 80, Anter Singh v. State
of Rajasthan ; (2004) 10 SCC 657 and Santa Singh v. State of
Punjab ; AIR 1956 SC 526.
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21. In the last limb of her argument, while attacking the
circumstance of DNA evidence, she vociferously submitted that here,
very chain of custody of DNA sample is apparently compromised. She
took us through the evidence of PW16 Sitakant Palaskar, Assistant
Chemical Analyzer, RFSL [CA], more particularly his cross-
examination, and would submit that apart from faulty procedure
being adopted by PW16 CA, who was not at all an expert in DNA, it is
pointed out that it has come on record from his testimony that
required precautions of safe custody, sampling, analysis have not been
scrupulously adhered to. That, expert has admitted about possibility
of mixing of samples. According to her, the control samples of both,
accused and deceased, are apparently compromised thereby rendering
the very analysis unworthy of credence. She submits that, prepared
blood stains are analyzed but there is no evidence as to who prepared
it and apart from there being deviations and infractions in the manner
of analysis, in what condition the samples were preserved has also not
been satisfied by the prosecution. She questioned as to what was the
need of carrying out analysis twice. Thus, according to her, the
solitary piece of evidence in the from of DNA analysis is also not free
from doubt and resultantly, even if report is said to be positive, it is
her forceful submission that, in view of crucial admissions given by
PW16 CA, the report is rendered valueless and according to her, it is
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unfit for consideration. On the aspect of evidentiary value of DNA and
the procedure of analysis, she has sought reliance on the judgment of
Prakash Nishad v. State of Maharashtra ; MANU/SC/0613/2023, AIR
2023 C 2938 and Rahul v. State of Delhi ; (2023) 1 SCC 83
22. On the point of sentencing, it is her submission that this was
not at all a fit case for awarding death sentence. That learned trial
Judge has failed to appreciate the settled legal position on the point
of capital punishment. On this point, she seeks reliance on the case of
Bachan Singh v. State of Punjab ; (1980) 2 SCC 684, Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra ; (2009) 6 SCC 498,
Sangeet and another v. State of Haryana ; (2013) 2 SCC 452, Manoj
and others v. State of Madhya Pradesh ; 2022 SCC OnLine
677/(2023) 2 SCC 353, Mannan Alias Abdul Manan (supra),
Accused 'X' v. State of Maharashtra ; (2019) 7 SCC 1 and Rajendra
Pralhadrao Wasnik v. State of Maharashtra ; (2019) 12 SCC 460.
23. By referring the judgment in Manoj (supra), she would submit
that, learned trial Judge has failed to consider the mitigating
circumstances and there is complete failure to take into consideration
even the criminal test mandated by law. That, no efforts are done by
State in the trial court to put before the trial court, material regarding
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background of accused. She submits that, prosecution has not shown
that possibility of reformation has been completely ruled out.
24. Criticizing the impugned judgment, she would submit that
apart from not adhering to the principles enunciated in the case of
Bachan Singh, learned trial court erred by merely relying on the
aspect of society's cry for justice, which according to her, was
unwarranted. To buttress such contention, she seeks reliance on the
case of Bachan Singh (supra) and Santosh Bariyar (supra).
25. While summing up, she submitted that if at all this Court still
finds appellant guilty of the charge, then, according to her, at the
most sentence of life imprisonment could be imposed. Referring to
the psychological assessment report, affidavits of mother and brother
of accused, conduct certificate from Yerwada prison, social
investigation report and the observations and conclusions therein,
she submits that there is every possibility of reformation of accused as
there are no criminal antecedents whatsoever. According to her,
learned trial Judge has not considered the young age and poor socio-
economic background of the accused, which, according to her, is also
a crucial aspect while considering sentencing. In support of her such
submissions, she seeks reliance on the case of Bachan Singh (supra),
Conf Case 01-2021+
Veerendra v. State of Madhya Pradesh ; 2020 SCC OnLine SC 622,
Irappa Siddappa Murgannavar v. State of Karnataka ; (2020) 2 SCC
801, Pappu v. State of Uttar Pradesh ; 2022 SCC OnLine 176,
Rajendra Pralhadrao Wasnik (supra) and Manoj (supra).
EVIDENCE ON BEHALF OF PROSECUTION
26. Case of prosecution seems to be rested on in all 16 witnesses.
That apart, there is reliance on numerous documents like FIR, inquest
panchanama, spot panchanama, postmortem report, CA analysis
report, DNA analysis report etc.
The sum and substance of the prosecution witnesses is as under:
PW1 Informant-father of victim, deposed about he to be an
agriculturist and owning a land adjacent to a village beside
Sudha river. He deposed about accused being in his service
on yearly basis for maintaining his cattle and working hours
of accused being from 7.00 a.m. to 10.00 a.m. and 2.00 p.m.
to 6.00 p.m. Regarding incident he deposed that, on
20.01.2021 he along with his wife and mother had been to
the field and at about 1.30 p.m., they returned home for
meals. While returning back to the field, victim insisted to
join them and was accordingly taken with them and on the
way he purchased snacks [kurkure] for the victim. On
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reaching the field, victim was asked to sit on the bandh of
their field with pocket of kurkure, and they all got engaged in
the field work. This witness further deposed that after some
time accused came on the field and victim stared talking with
him. Accused being their servant and also well acquainted
with the victim, this witness states that, they did not pay any
heed. However, when after some time buffaloes entered into
the crops, so he called accused but neither he nor the victim
were found and so, while searching them, this witness states
that, he came to the village and informed PW2 Sk. Gulab and
PW3 Madhav Karewad and they all started searching in the
river bed where they found chappal of victim and later, the
naked dead body of the victim lying in grass having bleeding
injuries on her private parts. According to this witness, black
pant and white shirt of accused was found near the dead
body. According to this witness, PW2 Sk. Gulab and PW3
Madhav Karewad informed him that accused was found in
naked condition. [A note is taken about demeanor of this
witness that he became emotional and sat in the witness box
weeping.] This witness further deposed that, when PW2 Sk.
Gulab, PW3 Madhav Karewad and others caught hold the
accused, he confessed his guilt and the police personnel, who
had also joined the search, took custody of the accused. This
witness has identified the report lodged by him Exhibit 14,
FIR Exhibit 15 and his statement under Section 164 of the
Code of Criminal Procedure [Cr.P.C.] at Exhibit 17.
PW2 Shaikh Imamsab @ Gulab, a villager, deposed about having
acquaintance with informant as well as accused. Regarding
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incident, he deposed that on 20.01.2021, at about 3.30 p.m.,
when he was at the square of the village, informant asked
him as to whether his daughter was seen by him. One and
half hour thereafter, on hearing noise from bus stand side, he
reached there and joined the informant, one Chetan and PW3
Madhav Karewad in the search. According to him, at that
time, Bit Jamadar Singanwad, PW12 PC Shirole and another
PC Mudhol had also came there and they all started search in
the bed of Sudha river where, they saw footwear and frock of
victim and on further search, they found the dead body of
victim in naked condition with injuries and bite marks and
blood oozing from the private part of the victim. According to
him, a black pant, white shirt, underwear, baniyan and black
shoe was found near the dead body. This witness further
deposed that on further search, they found accused hiding in
grass and he was naked. On being caught hold by the
gathering, this witness claims to have questioned what he
was doing there and accused allegedly confessed of
committing rape and murder and concealing himself out of
fear of public. He too stated that, thereafter bit Jamadar,
other constables and public reached there. Protection was
given to the accused and he was taken to police station.
Witness claims that his statement was recorded under Section
164 of Cr.P.C.
PW3 Madhav Karewad claims that he is a resident of Kandli and he
had come for refreshment near bus stand. He deposed that
around 3.00 pm, PW1 approached to inquire about seeing
victim. He denied having seen her, but deposed he joining in
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searching along with PW2 Sk. Gulab and one Chaitanya. He
stated that Singanwad also joined in the search. While
searching towards the bed of river, they came across chappal
and frock and on further search, they saw victim lying in
naked condition in the high grass with bleeding injuries. A
black pant, white shirt and undergarments were lying there
and they continued the search and that time they saw one
person who was naked and was caught. The person gave his
name a Baburao and further stated that he raped and
murdered the girl and therefore, out of fear he was
concealing himself.
PW4 Dr. Anant Chavan is the doctor who examined appellant-
accused on 23.01.2021. He claims to have noticed minor
abrasions over right and left thigh and back. He stated that
he collected samples and issued opinion about potency.
According to him, there were no injuries on the private part
of accused. He identified report issued by him at Exhibit 25.
PW5 Dr. Nitin Kalaskar is the autopsy doctor who conducted PM
along with two other doctors. He narrated about the external
and internal injuries and he identified PM report Exhibit 29.
PW6 Balaji Ingle is the official of Grampanchayat who issued birth
certificate of victim Exhibit 33.
PW7 Ravi Deshmukh is a photographer whose services were
requisitioned for snapping photographs and he testified about
developing ten photographs and issuing certificate Exhibit
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35. He also spoke about photographs being stored in pen-
drive and same being seized vide panchanama Exhibit 36.
PW8 Mandakini Sabanwar, pancha to inquest panchanama, stated
that she and another pancha Giri [PW9] acted as pancha to
the panchanama of dead body. She narrated condition of the
body and identified inquest panchanama Exhibit 43.
PW9 Giri Rawlod is the other pancha who spoke about being
pancha to spot panchanama Exhibit 45 and he identified 11
articles seized from the spot.
PW10 mother of victim at Exhibit 45 gave evidence that incident
took place on 20.01.2021. That, around 10.00 a.m. she and
her husband had been to agriculture field and they worked
up to 1.30 pm. and then returned home for meals. According
to her after meals when she, her husband, mother in law and
sister in law were about to return to the field, victim also
came to the field as she was insisting to come and crying and
therefore her husband purchased snacks for her and they all
reached the field. She stated that while they were working,
victim was seated on the trench eating snacks. At About 2.00
to 2.30 p.m., accused came to the akhada and untied the
cattle. She deposed that her daughter ran towards accused
calling his name and at that time, accused and victim
together went talking. According to her, they did not take
any suspicion because accused was just like their family
member. She stated that after some time, cattle entered the
jawar crop and so her husband drove them and gave call to
accused and victim but both were not found. Her husband
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took search at different places and while taking search, some
persons found frock and chappal of victim on the river bed.
On further search, naked body of the victim was found and
accused was also found near the spot in naked condition. She
stated that she came to know about murder after raping her
daughter. She also identified Articles 5 [frock] and 9
[chappal/footwear] of deceased and Articles 1 [black pant]
and 2 [white shirt] which were on the person of deceased
that day.
PW11 Sayyed Juned Patel is pancha to seizure of pendrive from
photographer. He identified panchanama Exhibit 36.
PW12 Namdev Shirole, Police Constable posted at Bhokar Police
Station gave evidence about receiving information about the
occurrence at 06.00 p.m. on 20.01.2021 and they proceeding
to the spot, meeting informant, PW2 Sk. Gulab and PW3
Madhav Karewad and coming across cloths of deceased, her
dead body in naked condition and clothes of accused as well
as accused apprehended from the said vicinity.
PW13 Sanjay Jondhale, Police Constable and PW14 Rekha Metkar,
Homeguard, have acted as carriers of muddemal to CA.
PW15 Vikas Patil, Police Inspector is the Investigating Officer who
narrated all steps taken by him during investigation till filing
of chargesheet.
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PW16 Sitakant Palaskar, Assistant Chemical Analyzer, Regional
Forensic Science Laboratory is the analyzer who conducted
DNA analysis and issued reports Exhibits 79 to 90.
Apart from oral account, in trial court, prosecution has placed
on record multiple documents such as FIR, various panchanamas,
medical and CA reports etc.
DISCUSSION AND ANALYSIS
27. Here, since we are called upon to deal with both, the legality
and sustainability of the conviction as well as the quantum of
punishment, we wish to first take up the appeal and if the offence as
alleged is found to be proved, then only shift to ascertain whether
capital punishment awarded is at all justified.
28. At the threshold, we wish to address the principal criticism
raised by learned counsel for accused that in this case, there is firstly,
unfair and motivated investigation and secondly, there is unfair trial.
29. In respect of objection about unfair and motivated
investigation, we have gone through the entire chargesheet. In our
considered opinion, the peculiar facts of this case are that accused is
taken in custody on being found in the vicinity of very scene of
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occurrence in unusual condition. There is no material or proof to
suggest that accused was arrested from some other place. No
suggestion to that effect was put either to IO and other witnesses in
their cross or to the accused in his statement under Section 313 of
Cr.P.C.. Before interrogation, it seems that there is confessional
statement on his behalf and taking clue from the same, investigating
machinery seems to have navigated the process of collection of
evidence. It has not been demonstrated to us that any go-by has been
given to the procedure contemplated under law. Where there has
been deviation in following procedural law or there is non compliance
of due procedure of law is not pinpointed to us. It has not been shown
to us that investigation is designedly defective or any deliberate act or
omission on the part of IO which would adversely affect the case of
prosecution. There is no doubt that IO is under statutory obligation to
conduct fair and unbiased investigation. There is also no doubt that
he is completely responsible for the methodology adopted for
completing the investigation and even the fate of the investigation.
But as stated above, what were the particular lapses on the part of
PW15 IO, which led to unfair investigation, is not demonstrated to us.
In cross, no pin-pointed questions to that effect were put to the IO.
Resultantly, mere accusation that accused is made a suspect as a
result of public annoyance and pressure is without base and is itself
Conf Case 01-2021+
not a good ground to hold that there is unfair, motivated or
designedly defective investigation, more particularly when such
objection is raised for the first time in appeal. Hence, we find no merit
in the above objection.
30. No doubt every person has constitutional right of fair trial, but
equally the concept of speedy trial, which is very much ingrained in
the Constitutional ethos enshrined in the Constitution, is also right of
an accused person. The same is recognized in the criminal
jurisprudence and administration of criminal justice. Fundamentally it
is to be borne in mind that it is fairly settled principle that, justice
must not only be done but must also shown to have been done. It has
been judicially acknowledged that fair trial includes fair investigation
as envisaged by Articles 14 and 21 of the Constitution of India. The
Constitutional philosophy of speedy trial does not mean
circumventing procedural laws but it includes taking up all steps
prescribed in Cr.P.C. as well as Police Manual. It is not only in the
interest of the society at large, but even in the very interest of
accused, who is also a focal point in the justice dispensation system.
In umpteen judgments the concept of fair trial and fair
investigation has been thoroughly dealt since decades, including the
landmark case of Sidhartha Vashisht @ Manu Sharma v. State [NCT
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of Delhi] ; (2010) 6 SCC 1, Dayal Singh and others v. State of
Uttaranchal ; (2012) 8 SCC 263.
31. In the light of above objections, we have taken survey of the
timeline since framing of charge till pronouncement of judgment. In
our opinion, the above objection holds no substance. It is revealed
from the Chargesheet that occurrence is of 20.01.2021. Accused is
apprehended on the same day. One month thereafter, i.e. on
22.02.2021, charge seems to have been framed and list of witnesses
was tendered by prosecution and case stood adjourned to 01.03.2021
for evidence and since then, trial has been conducted periodically. In
the light of availability of both sides, procedure of recording evidence
was undertaken and finally prosecution seems to have tendered
evidence closure pursis on 16.03.2021. Thereafter, incriminating
material seems to have been brought to the notice of accused as
required under Section 313 of Cr.P.C., thereby giving him an
opportunity to answer the same which also seems to have been done
in the presence of accused as well as his counsel. Record shows that
on hearing both sides, learned trial Judge has authored the judgment
on 22.03.2021 and on said day, has held accused guilty of the charges
and learned trial Judge has taken pause to hear the accused on the
point of quantum of sentence and matter resultantly was adjourned
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and kept next day i.e. on 23.03.2021. Record shows that on
23.03.2021, hearing on the point of sentence was taken and
thereafter sentence was pronounced.
32. In the light of above discussion, at each stage procedure as
contemplated in law for conducting trial seems to have been adhered
to. Evidence suggests that the council representing accused, to the
best of his ability, has tried to defend his client by cross-examining
each of the prosecution witnesses at considerable length. It has not
been brought to our notice that there was no opportunity or
insufficient time accorded to the defence.
33. Concern of the learned counsel for accused is that, there was no
sufficient time to reflect on the quantum of sentence and in quick
succession judgment has been passed.
34. We are not ready to accept above arguments. A complete day
was given to answer on the point of quantum of sentence. It is not a
case that on the same day, accused was made to answer on the
question of sentence and the judgment followed. The judgment
carries submissions as to why no leniency is required to be extended
to the accused.
Conf Case 01-2021+
Resultantly, there is no merit in the objection as regards to
unfair investigation and unfair trial.
35. Now let us advert to the merits of the case. Before re-
appreciating and re-analyzing the evidence to ascertain whether
judgment of trial court is legally maintainable and sustainable, we
wish to get ourselves satisfied, more particularly in the light of nature
of charge of murder, as to whether death of the victim is established
to be homicidal one. Though there is no serious dispute during appeal
to the mode and manner of death, we wish to dwell on this issue.
36. PW5 Dr. Nitin Kalaskar seems to be the medico legal expert
whose services were procured for conducting autopsy and his
evidence is at Exhibit 26. Autopsy seems to have been done by this
witness along with two more doctors. On external examination of the
dead body, they seem to have reached to a finding that there were 47
external injuries and 9 injuries to external genitals, which are as
follows:
External injuries in Column No. 17 are as follows.
1. Contusion present on forehead on right side 0.5 cm x lateral to
mid-line of size 2 x 0.8 c.m red in colour.
2. Teeth contusion (bite mark) present on right cheek with two
cresentic half circle horizontally placed meeting with each
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other at both lateral ends with central pale area in between two
teeth lines of maximum diameter of 0.5 cm
upper half circle 6 teeth bite marks present adjacent to each
other, lower half circle 5 teeth marks present, size of total
injury 3.7 c.m x 3.5 c.m blue in colour.
3. Teeth contusion (bite mark) present over right cheek
intermingling with lateral end of injury no.2, two semicircular
bite marks obliquely placed meeting with each other at superior
and inferior end, having 4 teeth marks intermingling with
lateral end of injury no.2, total size of bite mark 3.5 c.m x 3
cm, blue in colour.
4. Abraded contusion present on right side of mandible mid part
of size 2 c.m. x 0.5 c.m., red in colour.
5. Abrasion present over right cheek, 2 c.m. anterior to tragus of
right ear of size 1 x 0.5 c.m., red in colour.
6. Contusion present over upper lip, right side of size 1 cm x 1
cm, blue in colour.
7. Laceration present over upper lip, just above mucosal line on
left side, of size 0.5 cm x 0.3 cm. x muscle deep.
8. Contusion present over mucosal surface of upper lip on midline
over frenulum of size 1 cm x 1 cm, blue in colour.
9. Contusion present over upper lip mucosal surface near left
angle of mouth 0.5 cm x 0.5 cm , blue in colour.
Conf Case 01-2021+
10. Mucosal lacerations present on mucosal surface of lower lip
right side 0.5 cm x 0.3 cm x submucosal tissue deep.
11. Teeth contusion (bite mark) present over left cheek obliquely
placed with two cresecentric semicircular mark meeting with
each other at superior lateral and inferior medial end, 6 teeth
bite mark present at upper semicircular margins, pale area of
size 1.3 cm present in between two margins, total size of injury
3.7 cm x 3.5 cm, blue in colour.
12. Abraded contusion present over left malar region, blue in
colour of size 1 cm x 1 cm.
13. Contusion present over chin 1 cm x 1 cm bluish red in colour.
14. Contusion present on right side of neck anterolateral aspect 2
cm below lower border of right mandible of size 0.5 cm x 1 cm,
blue in colour.
15. Contusion present on, just 1 cm below injuries no. 14 of size 2
cm x 1 cm and another contusion present below above
mentioned, IInd contusion of size 1 x 0.5 cm, both blue in
colour.
16. Contusion present on left anterolateral aspect of neck 3.5 cm
below left angle of madible 1.5 cm x 0.5 cm, blue in colour.
17. Contusion present on front of right shoulder, obliquely placed
of size 3 cm x 0.5 cm, red in colour.
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18. Contused abrasion on right upper lateral quadrant of right
mammary region 1 cm x 0.5 cm, red in colour.
19. Teeth contusion (bite mark) present on right mammary region
near nipple on right upper lateral quadrant with two
semicircular margins meeting with each other at medial and
lateral end, 4 teeth bite marks present on superior bite margins,
pale area of max 1.5 cm present between two bite mark
margins, injury blue in colour.
20. Abrasion present over left mammary region, medial side of
nipple of size 2 cm x 0.5 cm, red in colour.
21. Abrasion present over right arm, lateral aspect, mid part 8 cm
below, right lip of right shoulder 0.2 x 0.2 cm red in colour.
22. Contusion present over, anterior aspect of right cubital fossa,
1.5 c.m x 1.5 cm red in colour.
23. Lacerated wound present over dorsum of right hand over
kuncle of right ring finger of size 2 cm x 1.7 cm x muscle
tendon deep with tendon lacerations of size 0.5 cm x 0.2 cm x
muscle deep present over lateral inferior margin, with irregular
margins of laceration due to nibbing present over margins.
24. Contused abrasion present over dorsum of 1st interphalangeal
joint of right index finger of size 0.5 x 0.5 cm, red in colour.
25. Lacerated wound present on posterior aspect of left arm, mid
part, 11 cm below tip of left shoulder 1.4 cm x 1 cm x
subcutameus tissue deep, margins abrated red in colour.
Conf Case 01-2021+
26. Contused abrasion present over back of left arm, mid part, 0.5
cm lateral to injury No. 22 of size 0.5 x 0.3 cm, blue in colour.
27. Contused abrasion present over back of left arm lower part 3
cm above left elbow joint of size 1 cm x 0.5 cm, red in colour.
28. Contused abrasion present over back of left arm, 1 cm below
injury no.25, size 1 cm x 0.5 cm, red in colour.
29. lacerated wound having nibbling and teeth marking on margin
present on dorsum of left forearm, midpart 5 cm below left
elbow joint of size 3.7 cm x 3 cm x muscle deep underlying
muscle exposed skin, and subcutauous tissue
over injury absent.
30. Lacerated wound present over posteriomedial aspect of left
forearm upper part 3.5 cm below left elbow joint of size 2.2 cm
x 1.6 cm x muscle deep.
31. Lacerated wound having nibbling and teeth marking on margin
present on dorsum of left forearm 1.5 cm above left wrist joint
of size, 2.5 cm x 1.8 cm x muscle deep.
32. Abrasion present over lateral aspect of left index finger at
metacarpophalangeal joint 1.5 cm x 1 cm, red in colour.
33. Contusion present over abdomen, right side iufravmbilical
region 5 cm x 3 cm, red in colour.
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34. Contused abrasion present over pubic region right side 2.5 cm
x 0.5 cm, red in colour.
35. Abrasion present over pubic region left side 1 x 0.5 cm red in
colour.
36. Contusion present over right thigh anteromedial aspect 5 cm
below right inguinal fold 1.5 cm x 1 cm, red in colour.
37. Linear abrasion horizontally present on right thigh anterior
aspect, mid part, 11 cm below right anterior superior iliac
spine, 2. 5 cm x length, red in colour.
38. Contusion present on front of right knee superior part 1 cm x 1
cm of size red in colour.
39. Contused abrasion present on right knee inferior part 1 cm x
0.5 cm, red in colour.
40. Contusion present over front of right leg 6 cm x below right
knee joint of size 1 cm x 1 cm in, red in colour.
41. Contusion present over right leg in mid part medial aspect 9 cm
below right knee joint of size 1.2 cm x 1 cm red in colour.
42. Linear abrasion present over left thigh, on lower part, on
posterior lateral aspect, obliquely placed, situated 15 cm below
left hip joint of size 7 cm x 0.2 cm, red in colour.
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43. Contusion present over left leg anteriorly, in upper part,
situated 5.5 cm below left knee joint of size 1 x 1 cm, red in
colour.
44. Lacerated wound over left thigh posterior aspect, oval shaped
situated 3 cm above popliteal foosa of size 2. 8 cm x 1.9 cm
with margins abraded.
45. Linear abrasion present over left scapular region on medial
border obliquely placed of size 1.6 cm x 0.2 cm, red in colour.
46. Abrasion present over, posterior aspect of left ear pinna on
mastoid 1 x 1 cm, red in colour.
47. Contused abrasion present over posterior aspect of right ear
pinna on mastoid, 0.5 x 0.5 cm, red in colour.
1. Purging of fecal matter present from anus, blood present in
anus and vagina.
2. Laceration present over posterior wall at 6 0'clock position of
anus of size 2 cm x 1 cm x muscle deep, multiple tear and
laceration present all over anal sphincter, mucocutaneous
junction of anus and mucosa of anal canal, mucosa of anal
canal lacerated, external and sphincter dilated and patulous
and lacerated red in colour.
Conf Case 01-2021+
3. 2nd degree perineal tear (lacerations) present at 5, 6 and 7
o'clock position of size 2.5 cm x 1.8 cm x muscle deep with
inward triangle directions having apex inward and base
outwards, red in colour.
4. Lacerated contusion present over vaginal introitus and vaginal
wall anteriorly at 6 and 11 o'clock position of size 2.5 cm x 1
cm x muscle deep, red in colour with swelling present in
surrounding tissue.
5. Contusion present over left anterolateral wall of vaginal
introitus and vaginal wall of size 3 cm x 2.5 cm, red in colour.
6. Contusion present over medial surface of both labia majora and
over both labia minora, red in colour, swelling present.
7. Multiple fresh hymenal tears with redness inflammation and
oedema present all over hymen.
8. Contusion present over left posteriolateral wall of vagina
extending up to posterior fornix, red in colour, oedema present.
9. Lacerations present over left lateral wall of vagina and vaginal
introitus of size of 2 cm x 0.5 cm x muscle deep, red in colour.
37. In the opinion of autopsy surgeon, all these injuries are ante-
mortem. The team of doctors has opined that probable cause of death
is "due to smothering and throttling with evidence of forceful,
aggravated, penetrative [vaginal and anal] sexual assault."
Conf Case 01-2021+
38. We have gone through the cross. Doctor has flatly denied that
the injuries so noticed are possible on account of assault by a able
bodied young person between the age group of 20 to 21 years. He
admitted that the assailant may suffer injury to his male organ. He
further admitted that multiple injuries as noted on the dead body of
victim are possible by more than one person. He has denied the bite
marks to be due to aquatic animals. So much is the only cross. Taking
overall nature, number and sites of injuries, here, death is not only
shown to be unnatural but definitely homicidal one.
39. Having found on re-appreciation that death of the victim is
both, due to forceful sexual assault and murderous assault, we are to
see whether, as claimed by prosecution, accused is the perpetrator of
the crime.
Admittedly, there is no direct evidence and case is based on
circumstantial evidence. In such situation, it is a fairly settled law that
when a case is based on circumstantial evidence, the inference of guilt
would be justified only if all incriminating facts and circumstances are
found to be incompatible with the innocence of the accused. There
are numerous rulings on above aspect since the case of Hanumant
Govind Nirgudkar and another v. State of M.P . ; AIR 1952 SC 343,
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Shivaji Sahebrao Bobade v. State of Maharashtra ; AIR 1973 SC 2622,
Sharad B. Sarda v. State of Maharashtra ; AIR 1984 SC 1622 and
Padala Veera Reddy v. State of Andhra Pradesh ; 1989 (Suppl.2) SCC
706. The ratio of above rulings is that the circumstances from which
the conclusion of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. The circumstances should
not only be complete, but further they should be proved to be
consistent only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence. Recently, in the case of
Pritinder Singh alias Lovely v. State of Punjab [2023 SCC OnLine
811], the conditions which are required to be fulfilled for returning
guilt in a case based on circumstantial evidence are given in
paragraph no.16, which could be summarized as under :
"...... (1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.
It may be noted here that this Court indicated
that the circumstances concerned "must or should"
and not "may be" established. There is not only a
grammatical but a legal distinction between "may be
proved" and "must be or should be proved" as was
held by this Court in Shivaji Sahabrao Bobade v. State
of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri)
1033 : 1973 Cri LJ 1783] where the observations were
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made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence."
Apart from above essentials, it is also to be borne in mind that
there are cardinal principles for proper administration of criminal
justice. A few relevant could be reproduced as under:
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1. The accused is presumed to be innocent unless such a
presumption is rebutted by the prosecution by
producing the evidence to show him guilty of offence
with which he is charged.
2. If two views are possible on the basis of evidence
produced in the case, one indicating to the guilt of
the accused and the other to his innocence, the
view favourable to the accused is to be accepted.
3. Where the court entertains reasonable doubt
regarding the guilt of the accused, the benefit of such
doubt should go in favour of the accused.
4. The court must not reject the evidence of the
prosecution taking it as false, untrustworthy or
unreliable on the ground or on the basis of
conjectures and surmises.
5. The case of the prosecution must be judged as a whole
having regard to the totality of the evidence.
6. In appreciating the evidence the approach of the
court must be integrated and not truncated or
isolated. In other words, the impact of evidence in
totality on the prosecution case or innocence of
accused has to be kept in mind in coming to the
conclusion as to the guilt or innocence of the accused.
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7. In reaching to the conclusion about the guilt of the
accused, the court has to appreciate, analyze and
assess the evidence placed before it by yardstick of
probabilities, it's intrinsic and animus of witnesses.
8. The court has to keep in mind that the accused
'must be' and not merely 'may be' of guilty of an
offence. The mainly distance between 'must be' and
'may be' is long and divides vague conjectures from
sure conclusions.
9. Suspicion, however grave it may be, cannot take the
place of legal proof.
10. The court must ensure that miscarriage of justice is
avoided and if the facts and circumstances of a case so
demand, the benefit of doubt must be given to the
accused. However, the Court must borne in mind that
the reasons of doubt should not be trivial or merely a
probable. It must be fair doubt i.e. based upon the
reasons and common sense.
40. Keeping in mind the above legal requirements, we undertake
the exercise of ascertaining whether the circumstances relied by
prosecution are compatible only and only with the guilt of accused
thereby ruling out his innocence. The circumstances which are
pressed into service are as under:
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(1) Last seen together
(2) Extra-judicial confession
(3) Accused apprehended while in naked condition
(4) Seizure of articles including clothes
(5) DNA analysis report
First circumstance : Last seen together:
41. Again before touching the merits, we wish to give brief account
regarding the settled legal position on the doctrine/theory of last seen
together as propounded by Hon'ble Apex Court time and again. It is
held that "last seen theory comes into play, only where the time gap
between the point of time when accused and deceased were seen last
alive and when deceased is found dead is so small that possibility of
anyone other than accused being the author of crime becomes
impossible. In absence of any other positive evidence to conclude that
accused and deceased were last seen together, it would be hazardous
to come to the conclusion in those cases and the few cases that can be
named and referred are State of U.P. v. Satish, (2005) 3 SCC 114 and
Shyamlal Ghosh v. State of West Bengal, (2012) 7 SCC 646.
42. Similarly, law is also squarely settled that while invoking
circumstance of last seen together, it is equally necessary for
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prosecution to establish, time since death. Such proposition is
propounded in landmark cases of Niranjan Panja v. State of West
Bengal ; (2010) 6 SCC 525 and Shyamlal Ghosh (supra).
43. Resultantly, it is essential for prosecution to establish that time
gap between accused and deceased last seen together and deceased
found dead is minimal or so small that possibility of third person to be
involved can be easily ruled out.
44. Here, case of prosecution is that accused was in employment of
informant. On that day as a part of his duty, accused had come to the
field for carrying buffaloes for grazing in the same vicinity where
informant and his wife were involved in agricultural activities.
According to prosecution, victim had accompanied her parents and
was sitting on the "bandh" [trench]. Accused came there and was
seen with the victim child. Shortly thereafter, both of them had
disappeared and finally, dead body of the victim was spotted and
found on the bank of river and at short distance, in the same vicinity,
accused was apprehended. Hence, the above circumstance of last seen
together.
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45. The principal attack of learned counsel for accused is that there
is no convincing evidence on the point of last seen, very informant
himself is silent about accused last seen in the company of his
daughter, no missing filed, no search made in other fields, evidence of
PW1 informant and his wife PW10 is not consistent and lastly, the
proximity of time and place to be too huge, that it is unsafe to apply
said theory of last seen together.
46. In the light of above cases advanced by each of the side, we
have visited evidence of PW1 informant father and PW10 mother. On
minute scrutiny, we have noticed that on that day, after labouring for
the first half of the day, they both went for mid-day meal to their
home and around 2.00 to 2.30 p.m., on insistence of victim to join
them to the field, she had accompanied them to the field. PW1 father
had purchased snacks for her and both parents speak about their child
sitting on the bandh [trench] enjoying the snacks. Informant in his
substantive evidence has stated that while they were doing their field
work, after some time, accused came there and victim was seen
talking to him. He stated that he being their servant, no heed was
paid as their daughter used to talk to him regularly. When some
buffaloes entered the field, after herding them, he claims to have
stood up on the bandh but did not find both, his daughter as well as
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accused. Therefore they both were searched during which he met
PW2 Sk. Gulab and PW3 Madhav Karewad and they too joined in the
search.
PW10-mother of the victim is also found to be lending support
to her husband by stating that on that day they had been to the field,
worked up to 1.30 p.m., returned home for meals and while they
were about to return back to the field, their victim daughter insisted
to join them and was accordingly taken to the field and made to sit on
the bandh for eating snacks purchased by her husband. She stated
that around 2.00 to 2.30 p.m. accused came to the akhada in the field
and untied the cattle. That time, victim daughter ran towards him
calling him by name. She further stated that daughter and accused
went together talking. No suspicion was raised as accused was
considered as a family member. That after some time, cattle entered
the crop and so her husband drove them and gave call to accused as
well as victim but both were not found and therefore were searched
for.
47. According to learned counsel for accused, PW1 father is silent
about seeing accused and victim going together and that evidence of
PW10 mother is contradiction amounting to omission as she had not
stated in her statement about accused and victim both going talking.
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48. In our opinion, evidence of PW1 and PW10 is credible and has
a ring of truth. They both are parents of the victim who was brought
by them. They both are consistent about daughter sitting on the
bandh eating snacks. They both are consistent on the point of arrival
of accused at the field. They both are also consistent about victim
talking with accused. No doubt there is omission in the evidence of
mother but, in our opinion, it is not material one. What is of
significance is company of accused with victim. Theory of last seen
together does not contemplate conversation. This theory comes into
play when accused and victim are in each other's company and that
is, in our opinion, the essence of this doctrine. Parents are the best
witnesses in this case. They unequivocally speak about accused
coming to take the cattle for grazing, which was his job, and both
parents, as stated above, are lending support to each other about
victim and accused seen together at the field bandh. While parents
were engrossed in agricultural activity, victim had disappeared.
Accused has not denied his employment or nature of job. No other
plea has been advanced by him to deny his visit to the field that day.
Consequently, with above material on record, there is no hesitation to
hold that while victim was at the field, accused had not only come
there, but was spotted in the company of victim and thereafter both of
them had disappeared. PW1 and PW10 are very categorical about
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PW1 giving calls to accused but his daughter and accused were found
to be missing.
49. In view of testimony of PW1 and PW10, it has emerged that
around 2.30 onwards, accused had reached the spot. Dead body was
traced in the vicinity of the bank of river which is said to be at a
shorter distance from the field. Belongings and dead body of the
victim are spotted around twilight time. Taking into account the
marshy place, normally no villager would go there without reason.
Accused was spotted at such spot i.e in the same vicinity where dead
body was found, that too in naked condition. All this has happened in
a span of two to three hours. Therefore, we too are convinced that
evidence on record clearly suggests that accused was the last seen
person in the company of deceased. Hence, we accept the above
circumstance as proved.
Second circumstance : Extra-judicial Confession :
50. According to prosecution, the moment accused was spotted by
PW2 Sk. Gulab and PW3 Madhav Karewad, he gave voluntary
confession on his own admitting rape followed by murder. On the
other hand, so called extra-judicial confession is questioned by
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learned counsel for accused primarily on two grounds, firstly, it is a
very weak type of evidence, being hit by Sections 25 and 26 of the
Indian Evidence Act, and so it cannot be relied and secondly, when
evidence shows that Jamadar Singanwad slapped accused, the
essence of voluntariness vanishes and on both counts, it is her
submission that, extra-judicial confession goes out of consideration.
51. Before touching the evidence in the case in hand on the
circumstance of extra-judicial confession, we deem it fit to give a brief
account of settled legal position on evidentiary value of extra-judicial
confession.
It is true that law is settled that an extra-judicial confession is a
weak type of evidence, however, it is equally a settled position that, if
said extra-judicial confession is corroborated by other convincing
evidence, then it can not only be taken into consideration, but also
can be acted upon. The essential conditions for acceptance of
confession are that it should be voluntary and secondly, truthful and
inspiring confidence and it should be ruled out that it is a product of
inducement, threat or pressure. There are various and numerous legal
pronouncements wherein extra-judicial confessions are accepted for
deciding the guilt of accused.
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52. It would be useful to refer to the ruling of Sahadevan and
Another v. State of Tamil Nadu ; (2012) 6 SCC 403, wherein
following principles are enunciated :
"16. Upon proper analysis of above referred judgments of this
Court, it would be appropriate to state the principles which
would make a extrajudicial confession an admissible piece of
evidence, capable of forming basis of conviction of an accused.
These precepts would guide the judicial mind while dealing with
the veracity of the cases where prosecution heavily relies on
extrajudicial confession alleged to have been made by the
accused :
(I) The extrajudicial confession is a weak evidence by itself. It
has to be examined by the Court with greater care and caution.
(II) It should be made voluntarily and should be truthful.
(III) It should inspire confidence.
(IV) An extrajudicial confession attains greater credibility and
evidentiary value if it is supported by chain of cogent
circumstances and it is further corroborated by other prosecution
evidence.
(V) An extrajudicial confession to be the basis of conviction, it
should not suffer from any material discrepancies and inherent
probabilities.
(VI) Such statement initially has to be proved like any other fact
and in accordance with law."
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53. Likewise, very recently the Hon'ble Apex Court in the case of
Ramanand @ Nandlal Bharti v. The State of UP ; 2022 SCC Online
1396, has again very lucidly, succinctly and elaborately dealt with the
scope and evidentiary value of extra-judicial confession.
54. Similarly, the Hon'ble Apex Court in Madan Gopal Kakkad v.
Naval Dubey ; (1992) 3 SCC 204, by referring to the previous
judgment in the case of Piara Singh v. State of Punjab ; (1977) 4 SCC
452, held that "law does not require that the evidence of an
extrajudicial confession should in all cases be corroborated. The rule
of prudence does not require that each and every circumstance
mentioned in confession must be separately and independently
corroborated".
55. Even in the cases of Thimma and Thimma Raj v. State of
Mysore ; (1970) 2 SCC 105 : 1970 SCC (Cri) 320, Mulk Raj v. State
of U.P. ; AIR 1959 SC 902 : 1959 Cri LJ 1219, Sivakumar v. State ;
(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470 [SCC paras 40 and 41 :
AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of
Maharashtra ; (2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320 and
Mohd. Azad v. State of W.B. ; (2008) 15 SCC 449 : (2009) 3 SCC
(Cri) 1082, it is held that "there is no absolute rule that an extra-
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judicial confession can never be the basis of conviction, although
ordinarily an extra-judicial confession should be corroborated by
some other material".
56. The first limb of the arguments raised before us is answered
and dealt in the above settled legal position. As stated above, here,
extra-judicial confession is not the sole circumstance. In view of
settled position, if the extra-judicial confession inspires confidence,
the same can be resorted to.
57. Now let us deal with the second limb, i.e. alleged pressure
exhorted by Jamadar Singanwad by slapping accused and as such, the
essence of voluntariness does not remain.
58. In the light of above objection, we have meticulously gone
through the evidence of PW2 Sk. Gulab. It is noticed that he deposed
in the following way :
"....Thereafter we all started search of the person whose
clothes were found on the spot. While searching, we three
have seen back of hip of a person. When we rushed to that
person, then we found accused was in naked condition. We
caught hold of accused and accused tried to escape from
our clutches and tried to run away. Thereafter I asked
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accused what he was doing there. He told me that he has
committed rape on the victim and committed murder of the
victim and he concealed himself there due to fear of beating
of public."
It is after such deposition, this witness has further stated that ;
"Thereafter Shinganwad saheb and other constable as well
as public rushed to the spot and that time we had given
protection to the accused."
59. The above sequence emerging from the testimony of PW2 Sk.
Gulab, clearly indicates that prior to arrival of Singanwad, a police
personnel and others, an extra-judicial confession has been given to
PW2 Sk. Gulab, who was accompanied by PW3 Madhav Karewad and
one Chaitanya. On meticulous examination of evidence of PW12 PC
Shirole, it is noticed that even he seems to have reached subsequent
to accused being caught by PW2 Sk. Gulab and PW3 Madhav
Karewad, before whom there was extra-judicial confession.
60. Taking such material into consideration and account, it cannot
be said, as is put forth before us, that extra-judicial confession was
given in presence of police official and as such, is automatically hit by
the provisions of Indian Evidence Act. At that point of time, in
presence of PW2 Sk. Gulab and PW3 Madhav Karewad, there was no
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slapping to accused. Therefore, his confession is apparently voluntary
one. No doubt Singanwad is not examined by prosecution, however,
in the light of above nature of evidence, it cannot be for sure said that
extra-judicial confession was made under duress, pressure and it to be
involuntary. Even otherwise, taking into account the settled legal
position discussed above, here, extra-judicial confession is not the sole
evidence. Prosecution has come with other evidence also. For said
reasons, we find no force in the submission that so called extra-
judicial confession cannot at all be considered and taken aid by
prosecution.
Third Circumstance- Accused apprehended while in naked condition:
61. Learned counsel for accused would strenuously submit that
case of prosecution is about apprehending accused from the spot
while he was in naked condition. She would question as to how then
accused was taken in custody bare bodied and taken to police station
and in what form and condition. According to her there is no
contemporaneous evidence as no distinct panchanama of accused to
be found in such condition is drawn by police machinery. She also
points out that evidence of prosecution is silent about the exact
distance between the body and the spot where the accused was said
to be found.
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62. No doubt, here, evidence of prosecution, though is about
spotting accused hiding in the grass in naked condition, there is no
contemporaneous evidence to that extent. However, it needs to be
noted that not only accused is identified by PW1 and PW10 in the
Court, but even his clothes seized from the spot are identified by PW1
and PW10 i.e. parents. As stated above, they both have seen their
daughter in the company of accused that afternoon. They are the best
witnesses and they have duly identified both accused as well as
clothes seized from the spot. PW2 Sk. Gulab and PW3 Madhav
Karewad, who are independent witnesses, too have categorically
stated about search activity being undertaken and during the same,
accused to be found hiding in the grass in naked condition. These two
persons had no axe to grind against accused and therefore, why
would they at all falsely implicate him. Even it needs to be noted that
defence has not availed the opportunity to cross-examine above
witnesses for rendering their such version doubtful. On aspect of
naked condition, there is literally no cross. Consequently, mere failure
on the part of investigating machinery to bring on record in what
form and in what condition accused was apprehended and no distinct
panchanama to that extent being drawn and no evidence about he to
be taken in such condition to police station, itself will not be sufficient
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to cast doubt on the point of arrest of accused which is not seriously
disputed during the trial.
63. It is equally true that the distance between the dead body of
victim and spot where accused was found hiding has not been
measured even by approximation, but he is found in the same vicinity
i.e. on the bank of the river. Therefore, merely not measuring the
distance on the next day is itself not sufficient to cast doubt on the
prosecution version. Priority seems to have been given by IO to get
inquest drawn on the same night and he has send the body for
postmortem and thereafter, spot is drawn on the next day, it being
night time. Taking into account the peculiar location of spot i.e.
marshy place, it may not be possible on the next day to gauge or
measure exact distance. However, the core issue is not the distance,
rather it is the occurrence and presence of accused in the very vicinity
that would count and the same is got confirmed through one of the
parents and independent witnesses.
64. As regards the objection of delay of 6.5 hours in lodging FIR, it
also cannot be said to be fatal because FIR is registered at Bhokar
Police Station, which is away from village Divshi, at around 01.00
a.m. Prior to it, there is complaint on behalf of PW1 father.
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Resultantly, within few hours, FIR has been registered. Taking the
location of the spot, the enormity of the crime and huge crowd
gathering there, a few hours' delay is bound to occur. Further, here
we have noticed that there is no pointed query or suggestion to the IO
as to why delay had occurred in recording FIR or recording
statements of witnesses so as to hold that there is delayed FIR.
Therefore, even said objection does not sustain.
65. To sum up on this circumstance, taking into consideration the
prosecution evidence, more particularly that of PW2 Sk. Gulab and
PW3 Madhav Karewad, case of prosecution about accused found in
naked condition in the vicinity of scene of occurrence deserves to be
accepted. Sight of the fact cannot be lost that clothes of accused were
found lying near the dead body of the victim. Such tell-tale
circumstances at the scene of occurrence lend credence to the case of
prosecution about accused apprehended in naked condition. Hence,
this circumstance also deserves to be accepted as proved.
Fourth circumstance- Seizure of articles including clothes of accused:
66. Such circumstance is criticized before us by submitting that
alleged occurrence has taken place in the late afternoon or early
evening of 20.01.2021. Seizure is caused from the spot, which was
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admittedly open and free for access to any one for the entire night.
That, there is delay of almost 17 hrs. in causing seizure and no spot
panchanama has been drawn on 20.01.2021 itself. Learned counsel
invited our attention to the entries noted in General Diary at Sr. Nos.
27 and 29. She would strenuously submit that crime scene was not
protected to prevent tampering or contamination.
67. We have pondered over the above submissions and in the
backdrop of such objection, we have minutely scrutinized the
prosecution evidence on this count. It is emerging that in the
twilight of 20.01.2021, dead body and accused were found at the
scene of occurrence. Inquest panchanama seems to have been drawn
during 08.00 p.m. to 09.00 p.m. It is to be borne in mind that the spot
is on the bank or river bed which is outside the village and as such, is
a no man's land. PW15 IO in para 1 of his examination-in-chief has
deposed that after dispatching the dead body to the Government
Hospital for postmortem, crime scene was preserved by appointing
police personnel on the spot. No doubt, as pointed out by learned
counsel for accused, who was the police personnel who was posted at
the spot has not been clarified by the IO. However, merely on such
count, evidence of IO cannot be doubted. IO seems to have visited the
spot on the next day morning and caused seizure, sealed it and
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deposited it in malkhana. Taking into consideration factors like the
location of the spot, absence of source of light, it being a night time,
decision might have been taken to draw spot panchanama on the next
day. He has already deposed about intimating proposed panchas on
the evening of 20.01.2021 to remain present at the spot. Therefore,
taking into account such circumstances, the so called time spent for
drawing spot panchanama and causing signature cannot be said to be
delayed one or even fatal to the prosecution.
68. As regards the objection about no evidence to link the clothes
and articles of accused is concerned, also we do not find any force in
the same. The best witnesses to identify the articles are informant
PW1 and his wife PW10, who had employed accused for maintaining
their live stock. These two witnesses have identified the clothes to be
of the accused and have also given description of the same. It is
pertinent to note that the wallet allegedly seized from the crime scene
was said to be carrying photographs of none other than mother and
brother of the accused. Such personal articles belonging to accused
are seized from the spot and the same is sufficient to connect the
accused. According to IO, at the time of spot panchanama as many as
11 articles were seized, including clothes of accused, and the same
were seized and sealed and deposited with malkhana by drawing
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muddemal receipt. Consequently, the above circumstance also
deserves to be taken into account for completing the chain of
circumstances.
Fifth circumstance- DNA analysis report
69. Prosecution has come with a case that samples of accused as
well as deceased for DNA analysis were gathered and sent to forensic
laboratory. Laboratory has conveyed that samples matched and as
such, culpability of accused is also proved through scientific evidence.
70. Per contra, learned counsel for accused has strongly objected to
the reliability and veracity of the forensic evidence. Her main
contention is that in the case in hand, there are various reasons to
discard DNA analysis report. At the beginning, she took efforts to
explain to us in brief, as to what is meant by DNA, how samples for
DNA are required to be collected, the precautions that are necessary
for its collection and the standard operating procedure for preserving
the samples till the same are put to analysis. She also tried to explain
the mechanism and steps expected to be taken by a DNA analyzer.
She appraised us at length about the steps which are required to be
adopted by analyzer for analyzing the samples. Then she would
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inform us that forensic DNA analysis involves a process of comparison
of DNA profiles in control sample of known person with unknown
DNA profile found in the DNA sample allegedly seized from the crime
scene.
71. She emphasized that for accepting analyzer's report, it is
essential at the outset for the prosecution to demonstrate that the
chain of custody of the samples of both, accused and victim, has
remained uncompromised. According to her, if it is shown that the
DNA evidence is unreliable and if there is issue about chain of
custody, the reports issued are rendered unreliable and are
consequently liable to be discarded. To buttress such submission, she
invited our attention to the judgment of the Hon'ble Apex Court in the
case of Prakash Nishad v. State of Maharashtra (supra) and she seeks
reliance more particularly on the paragraphs 35 to 38, 50, 51, 54, 59
to 63 and 66.
72. She was very emphatic and assertive in submitting that in this
case the very chain of custody or link evidence has been totally
compromised. According to her, even when samples were alleged to
be seized on 21.01.2021, there is no convincing evidence about the
same to be in safe custody till the samples were received by the
analyzer in sealed manner. She invited our attention to the evidence
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of carriers and IO and would submit that there is unexplained delay
in dispatching samples and even there is no evidence that samples
were protected and prevented from being tampered or contaminated.
73. It is further strenuously submitted that even the procedure of
analysis adopted by PW16 Assistant Chemical Analyzer [CA] is in
utter disregard to the prescribed protocol. On such count, she took us
through the evidence of PW16 CA and sought reliance on the answers
given by him while facing cross. She added that this witness has given
very crucial admissions about samples being run twice for matching,
which according to her is a deviation from standard procedure and
there is no explanation for the same. She vehemently pointed out that
apart from mixing of samples, there is failure to undertake genotyping
and quantitation and no measures are taken to ensure contamination
and statistical analysis is also not done which are the essential
features of DNA analyzing process. She pointed out that PW16 CA has
candidly admitted that here, random occurrence ratio is not
calculated.
74. Consequently, it is her submission that entire exercise of DNA
analysis comes under shadow of doubt and is therefore, required to
be discarded in its entirety. In support of her above contentions, she
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has sought reliance on numerous judgments, including State of H.P.
v. Jai Lal and others ; (1999) 7 SCC 280, Ramesh Candra Agrawal v.
Regency Hospital Limited and others ; (2009) 9 SCC 709, Manoj
(supra), Pidathala Satyam Babu v. The State of Adhra Pradesh ; 2017
SCC OnLine Hyd 95 and Premjibhai Bachubhai Khasiya v. State of
Gujarat & another ; 2009 SCC OnLine Guj 12076.
75. On carefully scanning the evidence of PW16 CA, no doubt,
there is merit and substance in above argument as there seem to be
certain deviations and lapses on his part while carrying out the
analysis. It is to be borne in mind that DNA is an evolving science.
Though it is a complicated process, off- late, emphasis is laid on
keeping reliance on forensic analysis. Amendments are carried out in
the Code of Criminal Procedure on the basis of recommendations of
the Law Commission for inclusion of forensic evidence. In the case of
Dharam Deo Yadav v. State of Uttar Pradesh ; (2014) 5 SCC 509, the
Hon'ble Apex Court, after discussing as to what is DNA, has observed
as under:
"... The question as to whether DNA tests are virtually
infallible may be a moot question, but the fact remains that
such test has come to stay and is being used extensively in
the investigation of crimes and the Court often accepts the
views of the experts, especially when cases rest on
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circumstantial evidence. More that half a century, samples
of human DNA began to be used in the criminal justice
system. Of course, debate lingers over the safeguards that
should be required in testing samples and in presenting the
evidence in Court. DNA profile, however, is consistently
held to be vaild and reliable, but of course, it depends on
the quality control and quality assurance procedures in the
laboratory."
76. Very recently in the case of Manoj (supra), while dealing with
DNA profiling methodology, an article published by the Central
Forensic Science Laboratory, Kolkata [DNA profiling in Justice
Delivery System, Central Forensic Science Laboratory, Directorate of
Forensic Science, Kolkata (2007)], was considered and discussed in
which there is comment on COLLECTION AND PRESERVATION OF
EVIDENCE, which reads as under:
"If DNA evidence is not properly documented, collected,
packaged and preserved, it will not meet the legal and
scientific requirements for admissibility in a court of law.
Because extremely small samples of DNA can be used as
evidence, greater attention to contamination issues is
necessary while locating, collecting and preserving. DNA
evidence can be contaminated when DNA from another
source gets mixed with DNA relevant to the case. This can
happen when someone sneezes or coughs over the
evidence or touches his/her mouth, nose or other part of
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the face and then touches areas that may contain the DNA
to be tested. The exhibits having biological specimen,
which can establish link among the victim(s), suspect(s),
scene of crime for solving the case should be identified,
preserved, packed and sent for DNA profiling."
In the same judgment, increasing importance of DNA evidence
is appreciated by referring to various rulings like Pantangi Balarama
Venkata Ganesh v. State of Andhra Pradesh ; (2009) 14 SCC 607,
Krishan Kumar Malik v. State of Haryana ; (2011) 7 SCC 130,
Surendra Koli v. State of Uttar Pradesh ; (2011) 4 SCC 80 and
Mukesh v. State for NCT of Delhi ; (2017) 6 SCC 1.
Again in para 144 of the same judgment of Manoj (supra), by
referring recent decision in Pattu Rajan v. State of Tamil Nadu ;
(2019) 4 SCC 771, para 33 is reproduced wherein it has been
observed as under:
"33. Like all other opinion evidence, the probative value
accorded to DNA evidence also varies from case to case,
depending on facts and circumstances and the weight
accorded to other evidence on record, whether contrary or
corroborative. This is all the more important to remember,
given that even though the accuracy of DNA evidence may
be increasing with the advancement of science and
technology with every passing day, thereby making it more
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and more reliable, we have not yet reached a juncture
where it may be said to be infallible. Thus, it cannot be said
that the absence of DNA evidence would lead to an adverse
inference against a party, especially in the presence of other
cogent and reliable evidence on record in favour of such
party." [Emphasis laid]
Further, in para 145 of Manoj (supra), what has been observed
is reproduced as under :
"145. This court, therefore, has relied on DNA reports, in
the past, where the guilt of an accused was sought to be
established. Notably, the reliance, was to corroborate. This
court highlighted the need to ensure quality in the testing
and eliminate the possibility of contamination of evidence;
it is also held that being an opinion, the probative value of
such evidence has to vary from case to case.'
77. The above ratio regarding value of DNA evidence as culled out
in Pattu Rajan (supra) and Manoj (supra) has also been taken into
consideration in the very recent judgment in Prakash Nishad (supra).
78. In the light of above settled legal proposition and on examining
the DNA evidence on this circumstance, we are in complete
agreement with the learned counsel for accused that firstly,
investigating machinery initially seems to have dispatched samples to
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RFSL Nanded and subsequently to RFSL Aurangabad. However, it
seems that for want of proper expertise, samples were further
required to be dispatched to Aurangabad and as such, time was spent.
Resultantly, merely on such count, it cannot be inferred that there is
contamination or tampering with the samples, more particularly in
absence of any cogent and concrete evidence in that regard. We also
do agree that, PW16 CA has, while analyzing, deviated to some extent
from the required protocol. The manner in which he has answered in
the cross, also there is force in the submission of learned counsel for
the accused that the requisite protocol and standard operating
procedure has not been scrupulously followed. He has also admitted
that samples were run on two occasions. Therefore, though DNA
analysis report are reported to be positive, there are reasons to hold
that DNA analysis / profiling in the case in hand is not completely
free from doubt.
79. However, we wish to emphasize and reiterate that here, DNA
evidence is not the sole evidence. As stated above, in view of the law
discussed in aforesaid cases, namely, Dharam Deo Yadav v. State of
UP ; (2014) 5 SCC 509 and Manoj (supra), DNA evidence is mere
corroborative piece of evidence and opinion evidence. Moreover,
here, it is not the solitary piece of evidence as there are other
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compatible circumstances also.
80. On critical re-appreciation and reanalysis, this Court is of the
firm opinion that prosecution has infact succeeded in cogently and
firmly establishing circumstances which are compatible with the guilt
of the accused. He is demonstrated to be the last person in the
company of deceased victim. He was apprehended from the very
vicinity of spot where dead body was lying in bare bodied condition.
There is extra-judicial confession which is found to be voluntary and
under no pressure whatsoever. There is medical evidence of both,
rape, sodomy and strangulation. There is seizure of clothes as well as
belongings of accused and therefore, in our opinion, there is infact
overwhelming evidence on record about involvement of accused
alone.
Resultantly, even if we keep aside DNA evidence, there are
circumstances which are firmly and cogently proved and established
as regards to complicity of accused regarding initially removing the
child from the lawful custody of her parents and thereby committing
offence punishable under Section 363 of IPC. Before being done to
death by strangulation, medical evidence, as discussed in foregoing
paragraphs 36 to 38, clearly suggests that he had raped, sodomized
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and thereby committed penetrative as well as aggravated penetrative
sexual assault, including unnatural sex. Overall there is evidence
suggesting sexual harrasment thereby attracting Sections 302, 376-A,
376(2)(j)(m), 376-AB and 377 of IPC as well as there is commission
of offence under provisions of Sections 4, 6, 8, 10 and 12 of the
POCSO Act, 2012.
Therefore, we too like trial court, hold that the offence with
which accused is indicted, are firmly and cogently proved to hold him
guilty for said offences.
SUBMISSIONS ON SENTENCE
81. Now, it is to be seen whether the above offence falls in "rarest
of the rare" category, so as to attract death penalty and whether
learned trial Judge was justified in awarding the same.
82. On the above aspect, learned APP reiterated the case of
prosecution and would strenuously submit that accused has brutally
ravished the girl of barely six years age and the bestiality is writ large
from the nature and number of injuries on the deceased. He again
took us through the postmortem findings and would submit that the
manner in which the crime was committed, leaves no manner of
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doubt that the trust reposed by the little child on accused, who was in
the very employment of her father, has been breached to satisfy his
own lust. He pointed out that the accused was of such perverse nature
that, he has victimized a girl of tender age to satisfy his own sexual
urge and for achieving the same, he had inflicted as many as 50
injuries. According to learned APP, letting him at large would
endanger the society and he could become a menace to the society.
Therefore, according to learned APP, case definitely false in the
category of rarest of the rare one and accused deserves a befitting
sentence which is not less than capital punishment. According to him,
learned trial Judge has taken into account the entire facets of the
prosecution case and has considered both mitigating and aggravating
circumstances involved in the case and only thereafter, finding it to be
a case of extreme culpability and extremely grave, death has been
rightly awarded holding it to be a rarest of the rare case.
83. Refuting the above submissions, learned counsel for accused
would submit that even if this Court accepts the case of prosecution as
proved, even then it cannot be said to be rarest of the rare case. She
attacked the findings of the learned trial court on this count by
submitting that learned trial court has not at all considered the
mitigating circumstances and settled law in correct perspective and
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that learned trial court's opinion is rather swayed only on the basis of
aggravated circumstances. She pointed out that infact, here is the case
based on circumstantial evidence and that too, on an extra-judicial
confessional statement and there is no other clinching evidence.
Referring to the case of Bachan Singh (supra), she would strenuously
submit that it is apparent that learned trial court has failed to embark
on an inquiry as to whether there was any possibility of reformation
and rehabilitation of the accused and further learned trial court failed
to test whether the alternate option of life imprisonment was at all
foreclosed.
84. Pointing out to the questions raised in Machhi Singh (supra),
which are required to be answered to test as to whether the case falls
in the rarest of rare case i.e. what is really uncommon about the crime
which renders sentence of imprisonment for life inadequate and calls
for only and only death sentence; and secondly, whether the
circumstances of the crime are of such nature that there is no other
alternative but to impose only and only death sentence even after
according maximum weightage to the mitigating circumstances which
speak in favour of offender, she strenuously submits that the same has
not been considered, dealt and even answered by learned trial court
in its judgment.
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85. She questions as to whether really trial court has undertaken
the exercise of applying the crime test, criminal test and
proportionality test. According to her, even learned trial Judge seems
to have not adhered to the guidelines on sentencing laid down in
various legal pronouncements. According to her, these guidelines are
mandatory in nature but does not seem to have been borne in mind
while sentencing the accused.
86. Learned counsel took us through the various reports and
documents collected during pendency of appeal in view of directions
in Manoj (supra) i.e. psychological report issued by Psychiatrist Dr.
Kaustubh Joag, affidavits of mother and brother of accused, conduct
certificate issued by Yerwada Central Prison and the Social
Investigating Report. She laid much emphasis on the psychological
report on the point of intellectual capacity and would point out that it
is grossly deficit. According to her, since childhood, his socio adaptive
skills were at the lowest ebb. According to her, coupled with his poor
socio-economic background, he had an old aged mother as well as a
visually impaired brother to take care of. She hastened to add that
even accused had no criminal antecedents and he was barely of 35
years age at the time of incidence. All such factors, according to her,
have not been considered by learned trial Judge and so, it is her
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submission that, the same are required to be dealt and accepted by
this Court for commuting the sentence to imprisonment for life.
DISCUSSION AND SUMMATION ON SENTENCE
87. The issue of capital punishment has long being debated and
vexed the courts. Though constitutionality of death sentence was very
much under challenge in the case of Jagmohan Singh v. State of U.P. ;
(1973) 1 SCC 20, on the ground that it violated a persons right to life
under Article 21 of the Constitution, the five-Judges Bench of the
Apex Court has affirmed its constitutionality, holding that it did not
violate any Article of the Constitution of India.
88. Since the landmark case of Bachan Singh (supra), the doctrine
of rarest of rare case came to be evolved, accepted and still holds the
field. Within less than a decade, again view taken in Bachan Singh
was reaffirmed, also by three-Judges Bench in the case of Machhi
Singh thereby reiterating that death penalty can only be awarded in
the "rarest of the rare case". Resultantly, both Bachan Singh and
Macchi Singh have served as a torch bearer for deciding whether a
case falls in the category of "rarest of the rare".
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89. However, going by the precedents, it is also emerging that in
the case of Santosh Bariyar (supra), the Apex Court clarified and
entrenched the view taken in Bachan Singh but further observed and
held that death penalty is an exception and life imprisonment is a
rule.
90. Very recently, there is a further shift from dissuasive theory or
theory of deterrence to theory of reformation. Of late, such views are
reflected in various pronouncements including yet another recent case
of Manoj (supra), wherein all the precedents on death sentence have
been extensively and exhaustively dealt in para 190 onwards of the
judgment. Law settled in several landmark cases like Bachan Singh
(supra), Machhi Singh (supra), Swami Shraddananda (2) @ Mural
Manohar Mishra v. State of Karnataka ; (2008) 13 SCC 767, Santosh
Bariyar (supra), Deepak Rai v. State of Bihar ; (2013) 10 SCC 421
and Rajendra Pralhadrao Wasnik (supra), is dealt and discussed to
demonstrate that there is a shift in the approach towards death
penalty in our country.
91. In the view regarding two step process discussed in the case of
Santosh Bariyar (supra), which is also reiterated and reaffirmed in
Manoj (supra), it is expected of a court that, firstly, aggravating and
mitigating circumstances should be carved and identified and in the
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second step, the court is also expected to consider whether the
alternative of life imprisonment was unquestionably completely
foreclosed.
92. Likewise, again in the above judgment of Manoj (supra), the
view adopted in Rajendra Wasnik (supra), which also takes into
account the principles laid down in Bachan Singh, the test of
"probability and not improbability, possibility and impossibility of
reformation and rehabilitation" as a mandate of Section 354(3) of
Cr.P.C. is also found to be endorsed.
93. The above discussion clearly shows that off-late, a very holistic
view is expected to be adopted by court while implementing
sentencing policy. Court is expected to get itself satisfied after
drawing a balance sheet of mitigating and aggravating circumstances
that the case is of extreme culpability and that there is no possibility
whatsoever regarding reformation and rehabilitation of accused. Such
pragmatic view is expected to be taken in the backdrop of reformative
theory.
94. We wish to note that learned counsel for accused has burdened
us with numerous judgments on the aspects like requirements of
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sentence hearing, non-consideration of mitigating circumstances,
incorrect reliance on society's cry for justice, failure on the part of
courts in considering socio-economic background of criminal, his
antecedents, age, probability of reformation, family dependency,
emotional and mental disturbances, mental defect and intellectual
disability etc., of which there is no dispute as it is a settled legal
position and therefore, to make this judgment as concise as possible,
we refrain from naming them or reproducing the ratio laid down
therein.
95. On taking audit of reasoning of the trial court on the point of
sentencing, what is conspicuous is that, there is absolutely no
discussion on the Criminal test. We reiterate that even the mandate
laid down in Section 354(3) of Cr.P.C. also is lost sight of by the
learned trial Judge. We wish to reproduce the said provision, which is
as under:
"354(3) When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence
of death, special reasons for such sentence." [emphasis laid]
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96. In the judgment of Bachan Singh para 164, the Hon'ble Apex
Court held as under :
"164. ...... (a) The normal rule is that the offence of
murder shall be punished with the sentence of life
imprisonment. The court can depart form that rule and
impose the sentence of death only if there are special
reasons for doing so. Such reasons must be recorded in
writing before imposing the death sentence."
97. Even in the case of Alluddin Mian and others Sharif Mian and
another v. State of Bihar ; (1989) 3 SCC 5, it has been observed in
para 9 as under :
"9. ... When the law casts a duty on the judge to state
reasons it follows that he is under a legal obligation to
explain his choice of the sentence. It may seem trite to say
so, but the existence of the "special reasons clause" in the
above provision implies that the court can in fit cases
impose the extreme penalty of death which negatives the
contention that there never can be a valid reason to visit an
offender with the death penalty, no matter how cruel,
gruesome or shocking the crime may be... While rejecting
the demand of the protagonist of the reformatory theory
for the abolition of the death penalty the legislature in its
wisdom thought that the "special reasons clause" should be
a sufficient safeguard against arbitrary imposition of the
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extreme penalty. Where a sentence of severity is imposed,
it is imperative that the judge should indicate the basis
upon which he considers a sentence of that magnitude
justified. Unless there are special reasons, special to the
facts of the particular case, which can be catalogued as
justifying a severe punishment, the judge would not award
the death sentence. It may be stated that if a judge finds
that he is unable to explain with reasonable accuracy the
basis for selecting the higher of the two sentences, his
choice should fall on the lower sentence. In all such cases
the law casts an obligation on the judge to make his choice
after carefully examining the pros and cons of each case. It
must at once be conceded that offenders of some
particularly grossly brutal crimes which send tremors in the
community have to be firmly dealt with to protect the
community from the perpetrators of such crimes. Where
the incidence of a certain crime is rapidly growing and is
assuming menacing proportions, for example, acid pouring
or bride burning, it may be necessary for the courts to
award exemplary punishments to protect the community
and to deter others from committing such crimes. Since the
legislature in its wisdom thought that in some rare cases it
may still be necessary to impose the extreme punishment
of death to deter others and to protect the society and in a
given case the country, it left the choice of sentence to the
judiciary with the rider that the judge may visit the convict
with the extreme punishment provided there exist special
reasons for so doing. ..." [emphasis laid]
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98. Further, in the case of Swami Shraddananda (supra), Shashi
Nayar v. Union of India and others ; (1992) 1 SCC 96, Sandesh alias
Sainath Kailash Abhang v. State of Maharashtra ; (2013) 2 SCC 479,
the necessity of assigning special reasons clause has been insisted
upon.
99. The phrase "special reasons clause" has been elaborated in the
case of Shashi Nayar (supra) as under:
"Special reasons clause" means reasons, specific to the fact
of a particular case, which can be catalogued as justifying a
severe punishment and unless such reasons are not
recorded, death sentence must not be awarded."
This requirement is clarified by stating that Section 354(3) is a
sufficient safeguard against the arbitrary imposition of the extreme
penalty and unless the nature of crime and the circumstances of the
offender reveal that the sentence of life imprisonment would be
wholly inadequate, the Courts should ordinarily impose a lesser
punishment.
100. In the case of Sandesh (supra), it has been observed as under:
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"21. ... it is not only the crime and its various facets which
are the foundation for formation of special reason as
contemplated under Section 354(3) Cr.P.C. for imposing
death penalty, but it is also the criminal, his background,
the manner in which the crime was committed and his
mental condition at the relevant time, the motive of the
offence and brutality with which crime was committed are
also to be examined. The doctrine of rehabilitation and the
doctrine of prudence are the other two guiding principles
for proper exercise of judicial discretion."
101. Again in the recent case of Sundar v. State by Inspector of
Police ; MANU/SC/0282/2023, the Hon'ble Apex Court, referring to
the case of Bachan Singh, more particularly the observations in para
151, 152 and 163, thereby reiterated the importance of sentencing
hearing and we find it fruitful to reproduce the observations which
are as under :
"151. Section 354(3) of the Code of Criminal Procedure,
1973, marks a significant shift in the legislative policy
underlying the Code of 1898, as in force immediately before
April 1, 1974, according to which both the alternative
sentences of death or imprisonment for life provided for
murder and for certain other capital offences under the
Penal Code, were normal sentences. Now according to this
changed legislative policy which is patent on the face of
Section 354(3), the normal punishment for murder and six
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other capital offences under the Penal Code, is imprisonment
for life (or imprisonment for a term of years) and death
penalty is an exception.
152. In the context, we may also notice Section 235(2) of
the Code of 1973, because it makes not only explicit, what
according to the decision in Jagmohan's case was implicit in
the scheme of the Code, but also bifurcates the trial by
providing for two hearings, one at the pre-conviction stage
and another at the pre-sentence stage.
163. [...] Now, Section 235(2) provides for bifurcated trial
and specifically gives the Accused person a right of pre-
sentence hearing, at which stage, he can bring on record
material or evidence, which may not be strictly relevant to or
connected with the particular crime under inquiry, but
nevertheless, have, consistently with the policy underlined in
Section 354(3) a bearing on the choice of sentence. The
present legislative policy discernible from Section 235(2)
read with Section 354(3) is that in fixing the degree of
punishment or making the choice of sentence for various
offences, including one under Section 302, Penal Code, the
Court should not confine its consideration "principally" or
merely to the circumstances connected with particular crime,
but also give due consideration to the circumstances of the
criminal." [emphasis supplied]
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102. Emphasis on separate sentence hearing to the accused after
recording conviction has been reiterated in the case of Anguswami v.
State of Tamil Nadu ; 1989 (3) SCC 33, Malkiat Singh V. State of
Punjab ; 1991 (4) SCC 341 and Dattaraya v. State of Maharashtra ;
2020 (14) SCC 290.
103. The above discussed material thereby throws enough light on
the mandatory requirements provided in Section 235(2) of Cr.P.C.
thereby casting duty on the court to afford opportunity to the accused
to present his case on the point of sentence and Section 354(3) casts a
corresponding duty on the court to assign special reasons and extra-
ordinary circumstances which impels the court to award sentence of
death.
104. On taking survey of the impugned judgment, we have noticed
that learned trial court has taken up the issue of sentence since para
63 of the judgment onwards. Law laid down in Bachan Singh and
Machhi Singh is discussed in para nos. 67 and 68. Thereafter, by
taking recourse to judgment of this Court at Principal Seat, i.e. in
Chandrakant Vasant Ayare's case [2015 ALL MR (Cri.) 3497], on the
point of Section 354(3) of Cr.P.C., learned trial Judge carved out
aggravating circumstances and mitigating circumstances in para nos.
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71 and 72. Several judgments on the quantum of sentence and
confirmation of death sentence are also discussed in the para 74 of
the judgment. In para 75, opinion is expressed about society's cry for
justice and about not only keeping the rights of accused in mind, but
also to keep the rights of victim and the society and again several
judgments are taken recourse to and finally, in para 76, after
reiterating the circumstances relied by the prosecution, learned trial
Judge has held that there is no defence of accused except denial and
there is no explanation from the accused about the injuries appearing
on his body as well as his presence on the spot. It is further held that
"while considering the sympathy of the accused that he is the only
earning member of the family, his mother is old aged widow, I have
also to see what disaster has fallen on the family of victim when their
small beloved child of five years is brutally murdered after
committing aggravated penetrative sexual assault ". Opining that
considering the gravity and seriousness of the offence, court is not
inclined to take a lenient view, on the strength of precedents spelt out
on death sentence in para 74 and 75 of the judgment, the case is held
has falling under "rarest of the rare" category.
105. From above material reflected in the judgment, we have
noticed that, what primarily seems to have weighed and prevailed on
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learned trial Judge is mere enormity, brutality and gravity of the
offence. Entire mitigating circumstances are not taken into account as
desired, more particularly the above aspects pertaining to the
background of the accused and the circumstances in which the
incident had taken place, which are equally important and have a
bearing on sentencing. Reasons for ruling out reformation or its
probability are not apparently touched, dealt and discussed in the
judgment. The crucial question as to why the case falls in the "rarest
of the rare" category is also not properly reasoned out. There is also
no discussion as to why alternative punishment of imprisonment for
life is completely foreclosed. Elaborate reasons for choosing death
sentence over imprisonment for life are not at all reflected in the
judgment of the learned trial Judge. For such reasons, we are
constrained to take a re-look at the opinion reached at by learned trial
court on the point of sentence.
106. As stated above, recently there is a shift in the perception of
sentencing. The principle of "death penalty to be an exception and life
imprisonment to be a rule" dealt since Bachan Singh's case is often
resorted to in deserving cases. We wish to even highlight that the
mandate regarding collection and consideration of psychological
assessment report, affidavits of relatives, behavioral conduct report
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from jail, socio-economic condition etc., does not seem to have been
followed and resultantly, there does not seem to be any discussion on
the same in the impugned judgment.
107. In the case of Mukesh v. State (NCT of Delhi) ; (2017) 6 SCC 1,
it is clarified that there is statutory duty on Court to quote special
reasons and to afford an effective hearing on the sentence to the
accused. It is expected of the Court to hear on the question of
sentence to know (i) age of the accused; (ii) background of the
accused; (iii) prior criminal antecedents, if any; (iv) possibility of
reformation, if any; and (v) such other relevant factors. That, the
court while awarding sentence has to take into consideration various
factors having a bearing on the question of sentence.
In above judgment, referring to the case of Dagdu v. State of
Maharashtra ; (1977) 3 SCC 68, it has been held that the appellate
court can either send back the case to the Sessions Court for
complying with Section 235(2) Cr.P.C., so as to enable the accused to
adduce material; or, in order to avoid delay, the appellate court may
by itself give an opportunity to the parties in terms of Section 235(2)
Cr.P.C. to produce the materials they wish to adduce, instead of
sending the matter back to the trial court for hearing on sentence.
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108. Likewise, in the judgment of Deepak Rai (supra), it has been
stated that, if for any reason trial judge omits to assign or record
extra-ordinary circumstances warranting death sentence, or if learned
trial court fails to assign elaborate reasons, and the accused makes a
grievance of it before the higher court, it would be open to that court
to remedy the same by elaborating upon the said reasons.
109. It is in above backdrop, to remedy the above, our learned
predecessors have taken care to call for requisite information and
reports pertaining to accused by passing order on 19.12.2022.
Resultantly, this Court is now equipped with (a) psychological
assessment report, (b) behavioral conduct report/certificate from jail
and (c) socio-economic report.
110. Here, the affidavits of mother and brother of accused, dated
25.07.2021 and 19.09.2021 respectively, are also before us, where
they both have narrated about the harsh and hard childhood of the
accused, his mental disability and poor social condition,
responsibilities of accused towards them and the hardships he faced
to cope up the same. Material to that extent is reproduced in the
affidavits.
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111. Further, in compliance with the directions of order dated
19.12.2022, the following reports are placed before us;
(a) Psychological Assessment Reports:
In report dated 23.12.2022 issued by Dr. Kaustubh Joag,
Consultant Psychiatrist, Trimiti Clinic Pune, it has been concluded as
follows:
"Clinically, he does not have any mental illness. However,
considering the difficulties in his childhood that include the
early demise of his father, poor social and economic status,
lack of academic stimulus or any guidance or mentorship,
he appears to have mild to moderate intellectual disability.
Intellectual disability is a lifelong condition with onset
during the developmental period, which includes childhood.
I had stated this in my preliminary opinion and the same
has been confirmed by Ms. Shrenika Hatarote's report. He
has adapted to his current prison environment, which
means structured guidance in the form of a fixed daily
routine, some teaching / mentorship in learning new things,
support / conversations with fellow prisoners, will help him
function better in society.
Considering the nature of his disability, including deficits in
adaptive behaviour, difficult childhood with low socio-
economic condition, attendant vulnerabilities, and lack of
support to learn and cope with deficits in his behaviour, any
punishment that is imposed on Mr. Baburao should account
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for his disability, and the difficulties he faced due to his
disadvantaged life circumstances, which further hindered
his ability to cope with his life circumstances."
[emphasis laid]
Likewise, in the report issued by Ms. Shrenika Hatarote,
Consultant Clinical Psychologist, she has concluded as under:
History, test findings and behavioural observations show
that Mr. Baburao has Intellectual Disability with moderate
deficits in intellectual functioning per the PRI score obtained
and mild deficits per the BKT score. (Intellectual Disability
is defined by the DSM 5 as "a disorder with onset during the
developmental period that includes both intellectual and
adaptive functioning deficits in conceptual, social, and
practical domains". ................
The findings of VABS II sows low socio adaptive skills in the
area of communication, daily living and socialisation.
Indicating he may have difficulty in day-to-day
communications, interpersonal relationships and ability to
take responsibilities as an adult."
With such findings, she has recommended that "since there is
no medication available for intellectual disability, the treatment plan
should emphasize on rehabilitation and providing support for psycho-
education and occupational training".
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(b) Conduct Certificate
In the conduct certificate dated 06.02.2023 issued by the Senior
Jailor, Judicial Section-I, Yerwada Central Prison, Pune, it is certified
that, "However, conduct & behaviour is satisfactory with other
inmates and prison staff".
(c) Social Investigation Report
Though social investigation report is put on record by learned
counsel for accused, it is their independent exercise, i.e. it is not an
exercise undertaken upon any directions of this Court. Still, in the
interest of fairness we visited the same and we found that accused has
lived a life of extreme deprivations since childhood. His childhood
was under extreme adversities like loss of father, abuse of mother, no
education, inadequate nutrition, hard childhood labour, lack of care
and attention.
112. Taking above material into consideration, coupled with the fact
that conclusion of learned trial court is on incomplete assessment of
legal requirements and more importantly, without consideration of
alternative sentence of imprisonment for life to be ruled out in to-to,
we are of the opinion that the conclusion reached at by learned trial
Judge, being not based on sound and special reasons, which infact are
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found to be not assigned at all, necessitates our intervention on the
point of sentence. We are not convinced that this is a case which falls
within the "rarest of the rare" category, though accused has
victimized a tender sole for satisfying his lust by inflicting multiple
grievous sexual assault and further throttled her to death and in
inhuman manner. Though this is one of the most unfortunate and
grave offence, but equally not a crime which gravitates only and only
death penalty by holding it to be falling in the "rarest of the rare"
category.
113. Now the question is that, if he is to suffer imprisonment for life,
which might be interpreted as 14 years, or it should be more or even
for a fixed term, and that too with the rider of dis-entitlement for
remission.
114. In the case of Bachan Singh, there is discussion on sentencing
discretion conferred on the courts. Adding a note of caution that it
should not be untrammelled or unguided, the discretion is expected
to be exercised judiciously, in accordance with well recognized
principles, which are getting crystallized by various judicial
pronouncements, after balancing all aggravating and mitigating
circumstances. It has been further observed as under:
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"What is the relative weight to be given to the aggravating
and mitigating factors depends on the facts and
circumstances of the case. More often than not, the
aggravating and mitigating factors are so intertwined that it
is difficult to give a separate treatment to each of them. A
planned murder involving extreme brutality or exceptional
depravity and the murder of any member of the armed
forces or police force or a public servant were a few
circumstances which were categorized as aggravating. The
age of the accused, possibility of reformation and
rehabilitation of the accused, probability that the accused
would not indulge in a criminal act in future, the extreme
mental or emotional disturbance due to which the offence
was committed, the duress or domination of another person
under which the accused committed the offence and the
mental unsoundness or incapacity were listed as some of the
mitigating circumstances. Every relevant circumstance
relating to the crime as well as the criminal has to be
considered before imposing a sentence of death under
Section 302 IPC."
115. Bearing the above guiding principles in mind, we wish to
highlight that this is a case no doubt of a minor aged 6 years being
first raped, sodomized and then done to death. There is no further
doubt that the murder is also in a brutal manner. However, it is also
to be borne in mind that it was not a case of planned act. Finding the
child sitting alone that day, he seems to have taken her to the remote
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place. His background shows that his wife has left his company and at
the time of incidence, he was of 35 years of age and admittedly had
no criminal record till then. Prosecution did not show that he has a
propensity or natural inclination to further commit such offences
again and thereby expose the society to danger or threat. On the
contrary, his post-conviction behaviour inside the prison, which has
been brought on record, has kept the hopes of reformation alive.
116. Here, there is a brutal sexual assault on a minor of 6 years age.
After satisfying his lust, he has strangulated her. Therefore, gravity of
the offence is also definitely enormous. There is apparent betrayal of
trust reposed by the small child who addressed him as her "uncle".
For said reason, he is not entitled or fit to be enlarged on completion
of 14 years itself, and so he is liable to be incarcerated for a non-
remittable fixed term.
For adopting above view, we have leaned on Swamy
Shraddanand (2) ; (2008) 13 SCC 767, Neel Kumar v. State of Haryana
; (2012) 5 SCC 766, Raju Jagdish Paswan v. State of Maharashtra ; (2019)
16 SCC 380 and Tattu Lodhi alias Pancham Lodhi v. State of M.P. ; (2016)
9 SCC 675.
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Again falling back on the factual aspects narrated above, we are
of the view that sentence of fixed term of 25 years should subserve
the purpose of justice and is proportionate to the offence committed
by him.
117. We are aware of the legal position regarding mandatory grant
of compensation to the victims of crime. Law to this extent is aptly
dealt by the Hon'ble Apex Court Ankush Shivaji Gaikwad v. State of
Maharashtra ; (2013) 6 SCC 770 wherein the ambit and scope of
Section 357 Cr.P.C. has been lucidly and succinctly dealt. In the
present case, the peculiar feature which is emanating from the
available record is that accused was in the very employment of
informant, that too on a yearly contract basis. Therefore, he obviously
has no sufficient means to pay compensation if at all directed.
Therefore, we are not in a position to direct compensation to be paid
by him. Rather, from the impugned judgment passed by learned trial
court, it seems that by virtue of clause [13] of the operative part,
learned trial court directed District Legal Services Authority [DSLA]
for determining and payment of compensation to the parents of
victim as per rule, which obviously is the order taking recourse to
Section 357-A of Cr.P.C.. We are equally conscious of the fact that
monetary compensation would not heal the permanent scar and
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wound inflicted over the parents for the unfortunate loss of their girl
child, however, we wish to add that DLSA, Nanded to get the process
of grant of compensation expedited.
118. Before parting, we wish to acknowledge the painstaking efforts
taken by Ms. Rebecca Gonsalvez, learned counsel for accused, for
extending valuable assistance to this court during the appeal, more
particularly on the aspect of DNA evidence. We record our
appreciation for the proficiency she has acquired, more specifically in
the field of forensic science and manner of appreciation of DNA
evidence with legal lenses. She has gained considerable mastery over
this upcoming specialized field and in our opinion, definitely the
same goes to a greater extent in assisting courts of law for arriving to
a just decision.
ORDER
I. Confirmation Case No. 1 of 2021 is hereby dismissed.
II. Criminal Appeal No. 280 of 2021 is partly allowed.
III. The Judgment and order passed by learned Additional Sessions
Judge/Special Judge, Bhokar dated 22.03.2021/23.03.2021 in
Special [POCSO] Case No. 06 of 2021, to the extent of awarding
death sentence to the convict Baburao Ukandu Sangerao @ Baburao
Malegaonkar, is hereby set aside.
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IV. The sentence awarded by learned trial Judge vide clauses [02],
[03], [04] and [05] of the operative part of the impugned order dated
23.03.2021 is hereby commuted and modified as under:
[02] Accused Baburao Ukandu Sangerao @ Baburao
Malegaonkar is hereby convicted under section 235(2)
of Cr.P.C. for the offence punishable under sections
302 and 363 of IPC. As the offence under Section 302
of IPC is major offence, he is sentenced to suffer non-
remittable sentence for a fixed term of 25 years for
committing brutal murder of victim.
[03] Accused Baburao Ukandu Sangerao @ Baburao
Malegaonkar is hereby convicted under section 235(2)
of Cr.P.C. for the offence punishable under section
376-A of IPC for committing rape and inflicting injury
which causes death and he is sentenced to suffer non-
remittable sentence for a fixed term of 25 years.
[04] Accused Baburao Ukandu Sangerao @ Baburao
Malegaonkar is hereby convicted under section 235(2)
of Cr.P.C. for the offence punishable under sections
376(2)(j)(m), 376-AB and 377 of IPC. As the offence
under section 376-AB of IPC is major offence, he is
sentenced to suffer non-remittable sentence for a fixed
term of 25 years for committing rape on minor victim.
[05] Accused Baburao Ukandu Sangerao @ Baburao
Malegaonkar is hereby convicted under section 235(2)
of Cr.P.C. for the offence punishable under sections 4,
6, 8, 10 and 12 of the POCSO Act. As the offence
under section 6 of the POCSO Act is aggravated and
major offence, he is sentenced to suffer non-remittable
sentence for a fixed term of 25 years.
V. All the above substantive sentences shall run concurrently.
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VI. We make it clear that the impugned judgment and order so far
as disposal of muddemal and compensation to the parents of victim is
concerned, there is no change in the same.
VII. We expect the District Legal Services Authority, Nanded to get
the process of grant of compensation under Section 357-A of Cr.P.C.
expedited
VIII. In view of disposal of appeal, all pending applications also
stand disposed of.
IX. The Registrar (Judicial) to make further compliance and to see
that a copy of this judgment is received by the accused in jail free of
cost and even inform the learned trial court accordingly.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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