Bombay High Court
State Of Mah. Thr. Pso Ps Kalamna ... vs Guddu Chhotelal Rajak on 11 November, 2025
Author: Anil S. Kilor
Bench: Anil S. Kilor
2025:BHC-NAG:11757-DB
Judgment 1 CONF-2-2024-F.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL CONFIRMATION CASE NO. 02 OF 2024
The State of Maharashtra,
Through the Police Station Officer,
Police Station, Kalamna, Dist. Nagpur.
... PETITIONER.
// VERSUS //
Guddu Chhotelal Rajak,
Aged about 40 years, Occ. Labour,
R/o. Plot No.78, Devi Nagar, Aajri
Maajri, Wanjra, Kalamna, Nagpur,
(At Present in Central Jail, Nagpur)
... RESPONDENT.
WITH
CRIMINAL APPEAL NO. 322 OF 2024
Guddu S/o. Chhotelal Rajak,
Aged about 40 years, Occ. Labour,
R/o. Plot No.78, Devi Nagar, Aajri
Maajri, Wanjra, Kalamna, Nagpur,
(At Present in Central Jail, Nagpur)
... APPELLANT.
// VERSUS //
1. State of Maharashtra, through
Police Station, Kalamna, Dist. Nagpur.
2. XYZ Victim,
In FIR No.634/2022, Dtd. 6/11/2022
Registered with Police Station Kalamna,
Nagpur.
... RESPONDENTS.
Judgment 2 CONF-2-2024-F.odt
______________________________________________________________
Shri D. V. Chauhan, Sr. Advocate & Public Prosecutor a/b. Shri A.B.Badar, APP
and Ms. Deepali Sapkal, APP.
Shri A.S.Mardikar, Sr.Advocate a/b Shri Shivkumar Dwivedi, Ms Shreya
Rastogi, Ms Manasa Ramakrishna, Mr.S.A.Siddique, Mr.S.S. Ali, Shri Ved
Deshpande, Shri D.P.Singh, Ms Punam Pisurde, Advocates for Appellant.
______________________________________________________________
CORAM : ANIL S. KILOR AND PRAVIN S. PATIL, JJ.
DATE OF RESERVING THE ORDER : 22/04/2025
DATE OF PRONOUNCING THE JUDGMENT : 11/11/2025
JUDGMENT :
(Per : Anil S. Kilor, J)
1. Heard.
2. In the Crime No.634 of 2022 registered for the offences
punishable under Sections 302, 307, 323, 182, 193, 194, 196, 203, 120-
B of the Indian Penal Code (hereinafter referred to as "IPC") and Section
6 of the Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as "the POCSO Act, 2012") and under Section 75
of the Juvenile Justice (Care and Protection of Children) Act, 2015, on
filing of the charge-sheet, the trial was conducted and the accused herein
Guddu Chhotelal Rajak has been convicted by the Special Court
(POCSO) and District Judge-3 and Additional Sessions Judge, Nagpur
vide order dated 21/05/2024 for the offences punishable as follows :
Judgment 3 CONF-2-2024-F.odt
i) Under Section 302 of IPC - sentenced to suffer death and to
pay fine of Rs.50,000/- (Rs.Fifty Thousand only), in default to
suffer further Rigorous Imprisonment for 05(Five) years.
ii) Under Section 376(2)(f), 376(2)(n) of IPC and Section 6 of the
POCSO Act, 2012.
iii) Under Section 6 of the POCSO Act, 2012 - to suffer death and
to pay fine of Rs.50,000/- (Rs. Fifty Thousand) only, in default
to suffer further Rigorous Imprisonment for 05 (Five) years.
iv) Under Section 307 of IPC - sentenced to suffer imprisonment
for life and to pay fine of Rs. 10,000/- (Rs. Ten Thousand)
only, in default to suffer further Simple Imprisonment for 02
(Two) months.
v) Under Section 323 of IPC - sentenced to suffer Rigorous
Imprisonment for 01 (one) year and to pay fine of Rs.1000/-
(Rs. One Thousand) only, in default to suffer further Simple
Imprisonment for 01 (one) month.
vi) Under Section 182 of IPC - sentenced to suffer Rigorous
Imprisonment for 06 (Six) months and to pay fine of Rs.1000/-
(Rs. One Thousand) only, in default to suffer further Simple
Imprisonment for 01 (One) month.
vii) Under Section 193 of IPC - sentenced to suffer Rigorous
Imprisonment for 06 (Six) months and to pay fine of Rs.1000/-
(Rs. One Thousand) only, in default to suffer further Simple
Imprisonment for 01 (One) month.
Judgment 4 CONF-2-2024-F.odt
viii) Under Section 194 of IPC - sentenced to suffer imprisonment
for life and to pay fine of Rs.10,000/- (Rs. Ten Thousand) only,
in default to suffer further Simple Imprisonment for 02 (Two)
months.
ix) Under Section 196 of IPC - sentenced to suffer Rigorous
Imprisonment for 03 (Three) years and to pay fine of
Rs.15,000/- (Rs. Fifteen Thousand) only, in default to suffer
further Simple Imprisonment for 01 (One) month.
x) Under Section 203 of IPC - sentenced to suffer Rigorous
Imprisonment for 02 (Two) years and to pay fine of Rs.5000/-
(Rs. Five Thousand) only, in default to suffer further Simple
Imprisonment for 01 (One) month.
xi) Under Section 75 of the Juvenile Justice (Care and Protection
of Children), 2015 - sentenced to suffer Rigorous
Imprisonment for 03 (Three) years and to pay fine of
Rs.5000/- (Rs. Five Thousand) only, in default to suffer further
Simple Imprisonment for 01 (One) month.
xii) Under Section 120-B of IPC - sentenced to suffer
imprisonment for life and to pay fine of Rs.10,000/- (Rs. Ten
Thousand only), in default to suffer further Simple
Imprisonment for 02 (Two) months.
(The accused has been acquitted of the offence punishable under Section
201 of IPC.)
3. Since the accused is sentenced with the punishment of death,
the proceeding is referred to this Court for confirmation under Section
366(1) of the Code of Criminal Procedure.
Judgment 5 CONF-2-2024-F.odt
4. The convict has also filed an appeal raising a challenge to the
judgment and order dated 21/05/2024 (Exh.299). The confirmation and
the appeal, accordingly, were heard together. As per the order of this
Court dated 24/03/2025, the convict had been allowed to attend the
proceedings through Video Conferencing.
5. The case of the prosecution is as follows : (As the present case is
under the provisions of the POCSO Act, the victim herein will be
referred as "victim girl" and her sister will be referred as "N" or "PW-1".)
6. One Ashwini Durgaprasad Deshbhratar, maternal aunt of the
victim lodged FIR No.634 of 2022 dated 06/11/2022 (Exh.125) against
Kaushalya Piparde, Santosh Piparde, Dashrath Piparde and Kalpana
Piparde.
7. Accordingly, the crime was registered for the offences
punishable under Sections 305, 306, 376 of the Indian Penal Code read
with Sections 3 and 4 of the POCSO Act. Thereafter, the above-referred
accused were arrested and during the investigation the names of the
convict and Ashwini Durgaprasad Deshbhratar, who lodged FIR, were
added. Subsequently, Kaushalya Piparde (stepmother of the victim),
Santosh Piparde (brother of Kaushalya), Dashrath Piparde (father of
Judgment 6 CONF-2-2024-F.odt
Kaushalya) and Kalpana Piparde (wife of Santosh Piparde) were
discharged.
8. The investigation of the crime was conducted by PW-25 API
Chanda Dandwate. During the investigation, it was revealed that the
victim girl was the elder daughter of the accused. He has a younger
daughter named 'N', and a son named Gaurav. The mother of these three
children died prior to the incident by committing suicide. Thereafter, the
accused married his second wife namely 'Kaushalya'. The discharged
accused are the relatives of Kaushalya. Santosh Piparde is her brother,
Dashrath Piparde is her father and Kalpana Piparde is the wife of Santosh
Piparde.
9. On the fateful day, PW-18 PSI Manoj Raut was on night duty
from 05/11/2022 to 06/11/2022. He received a phone call at around
07:30 a.m. that a girl had hanged herself. This call was by PW-4-Nilkanth
Ambadare. He took an entry in the station diary and proceeded to the
spot. Upon arrival, Guddu Rajak was present there. PW-18 entered the
house and saw the victim girl hanging by a rope tied to the hook. Some
suicide notes were lying around her, in which, it was written that all the
four discharged persons are responsible for her death. Thereafter, the
absconding accused Ashwini Deshbhratar, who is the maternal aunt of
Judgment 7 CONF-2-2024-F.odt
the victim girl, arrived on the spot and she lodged a report against all the
discharged accused persons.
10. During the house search of the accused conducted on
09/11/2025, PW-25-IO seized a mobile phone having two sim-cards
recovered from one rice container. She seized the note-books of the
victim girl as the evidence of natural handwriting of the victim girl. She
also seized the mobile phones of the discharged persons.
11. She inspected the mobile of the accused Guddu Rajak, in
which, she found photos of the incident wherein the victim girl was alive
and was standing on a stool and had a rope around her neck. The accused
was also seen talking to her. She also found photographs of the suicide
notes, seized from the spot, taken in the month of October 2022.
Thereafter, she obtained the CDR's of the accused.
12. Then she recorded the statement of the younger daughter 'N',
who stated about the incident that her father, i.e. accused, caused the
victim girl to stand on a stool and tied a rope around her neck. He later
removed the stool, which caused the death of the victim girl.
Judgment 8 CONF-2-2024-F.odt
13. The postmortem report reveals that the victim girl was raped.
Thus, the PW-25-IO added Section 376 of IPC. From the statement of
the younger daughter 'N', it was found that she and her siblings used to
be beaten mercilessly by the accused, therefore, Section 323 of IPC and
Section 75 of Juvenile Justice Act, 2015 were added. Then she sent all the
seized samples and mobile phone to the Chemical Analyzer and also sent
the suicide notes along with the natural handwriting to the Handwriting
Expert. After completion of the investigation, she submitted a charge
sheet before the Court.
14. Thereafter, a trial was conducted in the Special Court (POCSO)
and DJ-3 and Additional Sessions Judge, Nagpur. To bring the guilt of
the accused home, the prosecution examined in all 25 witnesses, which
are as follows: -
Prosecution Witnesses
(reproduced from the Trial Court Judgment)
RANK NAME NATURE OF EVIDENCE EXHIBIT
PW 1 Victim Victim Exh.20
Santosh Dashrath
PW 2 Victim Uncle Exh.42
Piparade
Sarika Santosh
PW 3 Neighbours of the victim Exh.46
Kosarkar
Nilkanth Tulshiram
PW 4 Social worker witness Exh.49
Ambadare
Medical Officer, Doctor/Asstt.
Dr Deepak Janardhan
PW 5 Professor, Forensic Medicine Exh.51
Sangle
Department, IGGMC, Nagpur
Dr Vishwajit Casualty Medical Officer,
PW 6 Exh.60
Vishwanath Bobde IGMC, Nagpur
Judgment 9 CONF-2-2024-F.odt
Mahadeo Ramchandra
PW 7 Panch Witness Exh.63
Parate
Dipak Kumar Keshrilal
PW 8 Panch Witness Exh.65
Vishwakarma
Satish Govindrao
PW 9 Witness Shopkeeper Exh.68
Nipane
PW 10 Aarti Santosh Piprade Witness Exh.69
PW 11
Naresh Madhukarrao
Head Constable B.N. 4492 Exh.72
Revatkar
PW 12 Vidya Shalikram
Headmistress of the Victim Exh.76
Budhbaware
PW 13 Sapna Bhaiyalal Mate
Ladies Police Naik B.N. 609 Exh.80
PW 14 Pawan Fulsingh Pawar
Police Hawaldar B.N. 14233 Exh.91
PW 15 Dr Dipti Anil Chand
Medical Officer Exh.101
PW 16 Sanjay Panchram Patel
Panch Witness Exh.105
PW 17 Suresh Timaji Barve
Police Hawaldar B.N. 771 Exh.111
PW 18 Manoj Arjun Raut Police Sub Inspector Exh.122
PW 19 Anand Gajanan Malkar
Head Constable Exh.127
PW 20 Yogita Dnyaneshwar
Kose Witness Exh.134
PW 21 Golu Gokul Sinha Photographer Exh.151
PW 22 Dr Prajakta Subhash Scientific Officer, Regional
Pathe Forensic Science Laboratory,
Cyber Department
PW 23 Shivaji Pandurang Handwriting expert, State
Virkar examiner of Documents, CID, Exh.197
Nagpur
PW 24 Ravikumar Maroto
Police Constable (Cyber) Exh.205
Kulsange
PW 25 Chanda Hanumantrao
Dandawate Investigating Officer Exh.214
15. Further, the Prosecution has relied upon the following
documents: -
Judgment 10 CONF-2-2024-F.odt
Documents relied upon by Prosecution
(reproduced from the Trial Court Judgment)
Sr. Exhibit Number Description
No.
i. Exh. 21 / PW 1 Statement of the victim u/sec.164 of the CrPC
Exh.22 to 40/ PW1 Photographs
ii. Exh. 43/ PW 2 Form 6 of agricultural land
iii. Exh. 44/ PW 2 Form No. 18 of Agricultural Land
iv. Exh. 45/ PW 2 Map of the Agricultural land
v. Exh. 52/ PW 5 Requisition for Postmortem
vi. Exh. 53/ PW 5 Provisional Postmortem Report
vii. Exh. 54/ PW 5 Memorandum of Postmortem Examination
viii. Exh. 55/ PW 5 Viscera Form (seven pages)
ix. Exh. 56/ PW 5 Requisition dt. 20.01.2023 of the police station
x. Exh. 57/ PW 5 Answer regarding the query
xi. Exh. 58/ PW 5 Opinion as to the final cause of death
xii. Exh. 59/ PW Forensic Medical Examination Report
xiii. Exh. 61/ PW 6 Requisition to examine Nandini
xiv. Exh. 62/ PW 6 Query Report
xv. Exh. 64/ PW 6 Spot Panchnama
xvi. Exh. 66/ PW 8 Suchanapatra
xvii. Exh. 67/ PW 8 Seizure panchnama
xviii. Exh. 73/ PW 11 Intimation from Mayo
xix. Requisition for recording the statement of the
Exh. 74/ PW 11
Victim girl
xx. Exh. 75/ PW 11 Statement of the Victim Girl
xxi. Letters dt. 12.11.2022 issued by the police to the
Exh. 77/ PW 12
Headmistress of the victim girl
xxii. Letters Dt. 15.11.2022 issued by the police to the
Exh. 78/ PW 12
Headmistress of the victim girl
xxiii. Exh. 79/ PW 12 Extract of attendance register
xxiv. Exh. 81 to 84/ PW
Property search and seizure panchnamas
xxv. Exh. 85/ PW 13 Letter Dt. 7.11.2022 issued to the CA office
xxvi. Exh. 86/ PW 13 Order of Police Station dt. 7.11.2022
xxvii. Exh. 87 & 88/ PW
Invoice Receipts from the CA office
xxviii. Exh. 89 (admitted) Inquest Panchnama
xxix. Letter for the medical examination of the
Exh. 92/ PW 14
accused
xxx. Exh. 93/ PW 14 Carbon copy of B form
Judgment 11 CONF-2-2024-F.odt
xxxi. Exh. 94/ PW 14 Seizure panchnama of B form
xxxii. Exh. 95/ PW 14 General Diary Details
xxxiii. Exh. 102/ PW 15 Letter dt. 8.12.2022 to provide documents
xxxiv. Exh. 103/ PW 15 Requisition dt.16.01.2023 calling query report
xxxv. Exh. 104/ PW 15 Requisition dt. 20.01.2023 calling query report
xxxvi. Exh. 196/ PW 16 Intimation letter to panch
xxxvii. Exh. 107/ PW 16 Notice of shantinagar Dahan Ghat
Exh. 108/ PW 16 Birth Certificate of the victim girl
xxxviii.
Exh. 109/ PW 16 Electric Bill
xxxix. Exh. 110/ PW 16 Spot Panchanama
xl. Order dt. 29.11.2022 appointing NPC Suresh
Exh. 112/ PW 17
Barve to deposit cloths to the CA
xli. Exh. 113/ PW 17 Letter dt. 20.11.2022 of p.st Kalamna
xlii. Acknowledgment receipts of Regional Forensic
Exh. 114/ PW 17
Science Laboratory, Nagpur.
xliii. Exh. 115/ PW 17 General Diary Details
xliv.
Exh. 116/ PW 17 Letter Dt. 30.12.2022 of the p.st Kalamna
xlv. Exh. 117 & 118/ PW Acknowledgment receipts of Regional Forensic
17 Science Laboratory, Nagpur
xlvi. Exh. 123/ PW 18 Station Diary Entry
xlvii. Exh. 124/ PW 18 Report
xlviii. Exh. 125/ PW 18 Printed FIR
xlix. Exh. 126/ PW 18 Special Report
l. Exh. 128/ PW 19 Letter dt. 13.11.2022
li. Exh. 129 A to 129
Photographs of accused.
D/ PW 19
lii. Exh. 130/ PW 19 Certificate u/sec. 65-B of Indian Evidence Act.
liii. Exh. 137 (admitted) Certificate u/sec. 65-B of Indian Evidence Act.
liv. Exh. 138 (admitted) Seizure memo of Sandisc Cruzer Blade 32 GB.
lv. Exh. 139 (admitted) Certificate u/sec. 65 B of Indian Evidence Act.
lvi. Exh. 140 (admitted) Seizure memo of Sandisc Cruzer Blade 32 GB
lvii. Exh. 152/ PW 21 Letter issued to Golu Photo Studio
lviii. Exh. 153/ PW 21 Seizure panchnama of pen drive
lix. Exh. 154 to
Photographs
157/PW21
lx. Exh. 158/PW21 Bill of pen drive
lxi. Exh. 159/PW21 Bill of photographs
lxii. Exh. 160/PW21 Certificate u/sec.65-B of Indian Evidence Act
lxiii. Exh. 161/PW21 Pen drive
lxiv. Exh. 162/PW21 Envelope of a pen drive
lxv. Exh. 163/PW21 Envelope of pen drive
lxvi. Exh.164/PW21 In camera statement of Nandini
lxvii. Exh.172/PW22 Chain of custody form
lxviii. Exh.173/PW22 Letter by Forensic Laboratory
lxix. Exh.179/1 to Printouts
Judgment 12 CONF-2-2024-F.odt
179/17/PW22
lxx. Exh.180 to
Photographs
184/PW22
lxxi. Exh.185/PW22 CA report
lxxii. Exh.186 to
Photographs of suicide note
190/PW22
lxxiii. Exh.196/PW22 Hard disk
lxxiv. Exh.198 & Letters calling report about handwriting on
199/PW23 suicide note
lxxv. Exh.200/PW23 Letter
lxxvi. Exh.201 &
Note Book of deceased girl
202/PW23
lxxvii. Exh.203/PW23 Report
lxxviii. Exh.204/PW23 Statement of some of the reasons
lxxix. Exh.206/PW24 Letter to Cyber police dt.25.12.2022
lxxx. Mobile Inspection and extraction of data
Exh.207/PW24
Panchnama
lxxxi. Exh.208/PW24 Letter to Cyber police dt.26.12.2022
lxxxii. Exh.209/PW24 Hard disc hash value panchnama
lxxxiii. Exh.210 &
Hash value
211/PW24
lxxxiv. Exh.211/PW24 Certificate u/sec.65-B of Indian Evidence Act
lxxxv. Exh.215 & Arrest/Court surrender form of Kaushalya
216/PW25 Piparde and Dashrath Piparde
lxxxvi. Exh.217/PW25 Intimation letter
lxxxvii. Exh.218/PW25 Station diary entry
lxxxviii.
Exh.219/PW25 Arrest/Court surrender form of Santosh Piparde
lxxxix. Exh.220/PW25 Arrest/Court surrender form of Kalpana Piparde
xc. Exh.221 &
Intimation letters to Aarti Piparde
222/PW25
xci. Exh.223/PW25 Station diary entry
xcii. Exh.224/PW25 Letter issued to CMO Mayo
xciii. Exh.225/PW25 Property search & seizure form
xciv. Sexual assault report of Santosh Dashrath
Exh.226/PW25
Piparde
xcv. Exh.227/PW25 Crime detail form of Santosh Piparde
xcvi. Exh.228/PW25 Station diary entry
xcvii. Exh.229/PW25 Station Diary Entry
xcviii. Letter calling SDR, CDR, name and address
Exh.230/PW25
location
xcix. Exh.231/PW25 Acknowledgement receipt
c. Exh.232/PW25 Intimation letter
ci. Exh.233/PW25 Arrest/Court surrender form of accused
cii. Exh.234/PW25 Intimation letter
ciii. Exh.235/PW25 Regarding letter of addition of sections
Judgment 13 CONF-2-2024-F.odt
civ. Exh.236/PW25 Station diary entry
cv. Exh.237 &
Letters
239/PW25
cvi. Exh.240/PW25 Station diary entry
cvii. Exh.241/PW25 Intimation letter
cviii. Exh.242/PW25 Letter for postmortem report
cix. Exh.243/PW25 Letter calling medical report
cx. Exh.244/PW25 Letter
cxi. Exh.245/PW25 Letter to CA office for viscera
cxii. Exh.246/PW25 Viscera report
cxiii. Exh.247/PW25 Bone tissue report
cxiv. Exh.248/PW25 Letter for recording statement u/sec.164 Cr.P.C.
cxv. Exh.249/PW25 Letter calling treatment papers
cxvi. Exh.250/PW25 Letter for supplementary statement
cxvii. Exh.251/PW25 Letter for hard disc, pen drive and memory card
cxviii. Exh.252 &
Invoice & Bill
253/PW25
cxix. Exh.254/PW25 Letter for hash value
cxx. Exh.255/PW25 Intimation letter to Panchas
cxxi. Exh.256/PW25 Pen drive hash value panchnama
cxxii. Exh.257/PW25 Intimation to Panchas
cxxiii. Exh.258/PW25 Intimation to Panchas
cxxiv. Exh.259/PW25 Letter for pathology report
cxxv. Prepaid Customer Application form (Caption
Exh. 262/PW25
form) of the accused
cxxvi. Exh.263/PW25 CDR of accused
cxxvii. Exh.264/PW25 Tower Location
cxxviii. Prepaid Customer Application form (Caption
Exh.265/PW25
form) of Ashwini
cxxix. Exh.266/PW25 CDR of Santosh
cxxx. Prepaid Customer Application form (Caption
Exh.267/PW25
form) Santosh
cxxxi. Exh.268/PW25 Call record of Santosh and Ashwini
cxxxii. Exh.269/PW25 Discharge Section 169 of CrPC
cxxxiii.
Exh.270/PW25 Addition of Section
16. The learned Special Judge, after hearing both the parties and
scrutiny of evidence in detail, passed the impugned judgment and order
convicting the accused for the offences as under: -
Sections 302, 307, 376(2)(f), 376(2)(n), 323, 120-B, 182, 193,
194, 196, 203 of the IPC r/w Sec. 6 of POCSO Act,2012 r/w
Sec.75 of Juvenile Justice Act, 2015.
Judgment 14 CONF-2-2024-F.odt
17. The accused is punished with the death penalty. Accordingly,
this reference under section 366(1) of Cr.PC is made to this Court for
confirmation. Accordingly, the confirmation as well as the appeal filed by
the accused are heard together.
18. At this juncture, it will be appropriate to refer to Section 366 of
the Code of Criminal Procedure for ready reference:
'366. Sentence of death to be submitted by Court of Session for
confirmation.-- (1) When the Court of Session passes a sentence
of death, the proceedings shall be submitted to the High Court,
and the sentence shall not be executed unless it is confirmed by
the High Court.
(2) The Court passing the sentence shall commit the convicted
person to jail custody under a warrant.'
19. The Hon'ble Supreme Court of India in the cases of Bachan
Singh v. State of Punjab, reported in (1980) 2 SCC 684 and Mohinder
Singh v. State of Punjab, reported in (2013) 3 SCC 294 has held that the
legislature has provided valuable safeguards of the life and liberty of the
subject in cases of capital sentences. The provisions in this regard seek to
ensure that where, in a capital case, the life of the convicted person is at
stake, the entire evidential material bearing on the innocence or guilt of
the accused and the question of sentence must be scrutinized with utmost
caution and care by a superior Court. It is further held that the High
Court, while dealing with the reference, should consider the proceedings
Judgment 15 CONF-2-2024-F.odt
in all its aspects and come to an independent conclusion on the material
on record apart from the views expressed by the Sessions Judge. The
confirmation of death sentence cannot be based only on the precedents
and/or aggravating facts and circumstances of any other case.
20. The learned Public Prosecutor and Senior Advocate Shri D.V.
Chauhan submitted that, in the present case, the crime has been
committed by the accused without any provocation, rather it was pre-
planned, predetermined and in a cool and calculated manner.
21. On the other hand, learned Senior Advocate Shri. Anil
Mardikar submitted that the evidence on record is insufficient to prove
the allegations against the accused and that the case of the prosecution
must stand on its own legs, to base conviction.
22. It is the case of the prosecution that in the night of 06/11/2022,
at about 2:30 a.m., the accused, under the pretext of creating a false scene
of suicide of victim girl, with the object of falsely implicating the four
discharged accused, compelled the victim girl to stand on a stool and
fasten a rope around her neck. Thereafter, the accused deliberately kicked
the stool away and forcibly removed her hand from the iron rod which
she was holding for support in an attempt to save herself, thereby causing
her death.
Judgment 16 CONF-2-2024-F.odt
23. The prosecution has examined total 25 witnesses. According to
the prosecution, the most crucial and relevant witness is PW-1. The
prosecution has also heavily relied upon documentary evidence by way of
photographs, allegedly clicked by PW-1, in a blue coloured vivo Mobile
Phone of the accused to establish the allegations against the accused.
24. Before appreciating the oral testimony of PW-1, we will first
deal with the evidence establishing the fact of death of the deceased by
hanging.
25. According to the prosecution, PW-4 Nilkanth Ambadare is the
family friend of the accused. In his evidence, he deposed that on
06/11/2022, at about 06:00 a.m. the accused came to his house and
informed him that the victim girl had committed suicide by hanging
herself. He then made a phone call to Police Station, Kalamna and gave
information about the incident.
26. On such information, PW-18 PSI Manoj Raut took entry in the
station diary and went to the house of the accused with staff. He saw that
the victim girl was hanging by a rope tied to a hook. PW-18 then called
two persons as panch witnesses and conducted spot panchnama. He
found a stool and chits lying there. The girl was hanged with a yellow
Judgment 17 CONF-2-2024-F.odt
nylon rope. Her tongue was protruded and sticky substance was coming
out of her nose. He prepared a spot panchnama (Exh.64), obtained
thumb impression of the accused on the panchnama as it was about the
seizure of suicide notes and stool.
27. PW-7 Madhav Parate (panch witness) corroborated the
evidence of PW-18 that he prepared panchanama Exh.64 in the presence
of another panch Sarika. In cross-examination, nothing could be brought
to negate the testimony of PW-18 and PW-7.
28. The defense admitted the inquest panchnama Exh.89 which
shows the mouth of the victim girl was open while tongue came out and a
yellow coloured nylon rope was seen around the neck of the victim. Thus,
the inquest panchanama prima facie shows that the victim girl died due to
hanging.
29. The evidence of PW-5 Dr.Deepak Sangle, who conducted post-
mortem along with Dr.Shreya, shows that Rigor mortis was present and
generalised. He stated that on examination, there was evidence of
dribbling of saliva from mouth, which is one of the signs of ante-mortem
hanging. Cynosis was present over both finger, nails and lips, which is one
of the signs of asphyxia due to hanging. It was ante-mortem. He opined
Judgment 18 CONF-2-2024-F.odt
that injury mentioned in the column 17 i.e. ligature mark present around
the neck above thyroid cartilage, running obliquely, upward and
backward deficient on nape of neck, is ante-mortem injury.
30. His evidence further shows that lungs and brain both were
oedematous and congested. He thus, opined that injury No.1 mentioned
in column 17 is sufficient to cause death in ordinary course of nature
individually. He then prepared a final post-mortem report (Exh.54)
concluding that the post-mortem findings are consistent with death due
to hanging.
31. During his cross-examination, he admitted that PM Report
Exh.54 does not bear his signature on every page. However, he states that
his fellow doctor has signed every page of the report and therefore his
signatures are not necessary on each and every page. He admits that there
is no reference of rope in Exh.57. However, according to us, absence of
such reference will not affect the prosecution's case.
32. Therefore, on the basis of the evidence of PW-4, PW-7, PW-18,
PW-5 and the inquest panchnama, it can be safely held that the victim
girl died due to hanging.
Judgment 19 CONF-2-2024-F.odt
33. Now, therefore, a question arises whether it is a case of suicide
or a death homicidal in nature.
34. According to the prosecution, in the intervening night of
06.11.2022, the accused awakened PW-1 and the Victim Girl from their
sleep and took them to the temple room ( Devghar). The accused then
directed PW-1 to take photographs of the victim girl's purported suicide
execution, under the guise that such photographs were required to falsely
implicate the discharged accused. Accordingly, PW-1 clicked pictures of
the incident with the accused's blue coloured vivo mobile phone.
35. Learned defense counsel submitted that PW-1 is an unreliable
eyewitness to the incident as there are various material contradictions and
improvements in her testimony. It is further submitted that there was a
delay in recording the statement of PW-1.
36. On the other hand, learned Public Prosecutor submitted that
PW-1 was present at home at the time of the incident. It is submitted that
the omissions and contradictions are minor in nature and do not shatter
her overall evidence.
Judgment 20 CONF-2-2024-F.odt
37. In light of the rival contentions, let us examine the oral
evidence of PW-1, who is the younger sister of the victim girl and second
daughter of the accused. She was 12 years old at the time of offence, and
therefore, before taking her oral evidence into consideration, it will be
beneficial to reiterate the law as regards the evidentiary value of a child
testimony.
38. The Hon'ble Supreme Court of India, in the case of Pramila v.
State of U.P., reported in (2021) 12 SCC 550, has observed thus: -
"5. Criminal jurisprudence does not hold that the evidence of a child
witness is unreliable and can be discarded. A child who is aged about
11 to 12 years certainly has reasonably developed mental faculty to
see, absorb and appreciate. In a given case the evidence of a child
witness alone can also form the basis for conviction. The mere absence
of any corroborative evidence in addition to that of the child witness
by itself cannot alone discredit a child witness. But the courts have
regularly held that where a child witness is to be considered, and more
so when he is the sole witness, a heightened level of scrutiny is called
for of the evidence so that the court is satisfied with regard to the
reliability and genuineness of the evidence of the child witness. PW 2
was examined nearly one year after the occurrence. The Court has,
therefore, to satisfy itself that all possibilities of tutoring or otherwise
are ruled out and what was deposed was nothing but the truth.
6. The evidence of a child witness and the manner of its consideration
has been dealt with in State of M.P. v. Ramesh [State of M.P. v.
Ramesh, (2011) 4 SCC 786 : (2011) 2 SCC (Cri) 493] , as follows :
(SCC p. 792, para 14)
"14. In view of the above, the law on the issue can be summarised
to the effect that the deposition of a child witness may require
corroboration, but in case his deposition inspires the confidence of
the court and there is no embellishment or improvement therein,
the court may rely upon his evidence. The evidence of a child
witness must be evaluated more carefully with greater
circumspection because he is susceptible to tutoring. Only in case
there is evidence on record to show that a child has been tutored,
Judgment 21 CONF-2-2024-F.odt
the court can reject his statement partly or fully. However, an
inference as to whether child has been tutored or not, can be
drawn from the contents of his deposition."
39. In the case of State of Maharashtra vs. Vivek Gulabrao Palatkar
(Criminal Confirmation Case No.02/2023), this Court has observed
thus: -
"33. In terms of Section 118 of the Indian Evidence Act, a child
witness is competent to depose, unless the Court considers that he is
prevented from understanding the questions put to him. The learned
trial Judge has made a preliminary enquiry and on satisfaction
recorded the evidence of child witnesses. There can be no straight
jacket rule or formula that whether the evidence of child witness is to
be relied or otherwise. It depends upon the facts and circumstances of
each case but, certainly the Court must be cautious while accepting
the evidence of the child witnesses. The observations of Supreme
Court in above referred case of Pradeep are relevant, which reads as
under :
"9. It is a well-settled principle that corroboration of the testimony
of a child witness is not a rule but a measure of caution and
prudence. A child witness of tender age is easily susceptible to
tutoring. However, that by itself is no ground to reject the evidence
of a child witness. The Court must make careful scrutiny of the
evidence of a child witness. The Court must apply its mind to the
question whether there is a possibility of the child witness being
tutored. Therefore, scrutiny of the evidence of a child witness is
required to be made by the Court with care caution."
40. From the above-referred observations, it can be culled out that
under Section 118 of the Indian Evidence Act, a child witness is
competent to testify if capable of understanding questions. The evidence
of a child witness, even if sole, can form the basis of conviction, but it
requires 'heightened scrutiny' to rule out tutoring or fabrication.
Corroboration is not a legal requirement but a matter of caution.
Judgment 22 CONF-2-2024-F.odt
Ultimately, the Court must carefully examine the reliability, truthfulness,
and consistency of such testimony before relying on it.
41. In the teeth of the above-referred law, let us examine the
deposition of PW-1.
42. Since PW-1 was a minor, before recording her oral testimony,
the learned Additional Sessions Judge put certain questions to her to
ascertain whether she understands the importance of oath or not. And, on
satisfaction that the witness understands the sanctity of oath, the same
was administered to her before recording her oral testimony.
43. In her oral testimony, she states that the incident occurred
on 06/11/2022. There was Deewali holidays during that time. On the
date of the incident at 10:00 p.m. they were sleeping in front hall. The
victim girl was sleeping on the cot. She, her brother and father were
sleeping down on the floor. In the night, the accused took her and the
victim girl to a room where shrine is kept. Her father wanted to take
photographs of hanging of the victim. He wanted to take those
photographs in order to implicate Santosh (a discharged accused). Her
father asked her to click those photographs. She clicked the photographs
with a blue coloured mobile phone of her father.
Judgment 23 CONF-2-2024-F.odt
44. She further narrates the incident and states that her father had
hanged a yellow coloured rope in the hook. The said rope was for goats.
The accused made the victim stand on the plastic stool and put noose of
the rope around the victim girl's neck. Her father pushed the stool on
which the victim girl was standing. At that time the victim's legs had
come down. That time the victim girl was saying " Don't kill me".
Thereafter her father again made the victim girl stand on the stool and
again pushed the stool. At that time the victim was holding an iron bar.
At that time also the victim girl was saying " Don't kill me". At that time
the victim girl was crying. The accused got released the victim girl's
hands. The accused had placed white jeans of her brother "G" on his
hand in order to avoid to get imprinted the impressions of his palm. Then
the victim girl died. At that time, she was taking photographs. She was
also requesting her father by saying, ' Don't kill Didi'. Thereafter the
accused sent her to a room where she was sleeping. She had kept
concealed the mobile phone, with which she clicked photographs, in a
rice container. Her father left the papers written by the victim girl at the
place where he killed the victim. Her father used to compel the victim
girl to write on the pieces of paper.
45. She further deposed that thereafter she woke up at 06:00 a.m.
at that time, the victim girl was in hanging position. After she woke up
Judgment 24 CONF-2-2024-F.odt
her father had gone to call Nilkanth. After Nilkanth Papa arrived he saw
the victim and called police. On arrival, the police verified as to whether
the victim girl is alive or not. The accused frightened her and asked her
not to disclose anything to police. Hence, she did not state anything
about the incident and mobile phone to police.
46. She identified the handwriting of the victim girl marked as
Article A-5. Then photographs were shown to her which was marked as
Article B-1 to B-3. The photographs which were clicked with the mobile
of the accused were marked as Article B-4 to B-25, respectively. She
states that her father asked the victim girl to take out the tongue and the
photograph of the same is marked as Article-9. She states that the accused
wanted to show that the victim girl was dead. The victim girl identified
the rope which was used in the offence and the same was marked as
Article-C. The stool used in the commission of the offence was identified
by the witness and it was marked as Article-D. Though she stated that
she can identify the mobile phone which was shown to her, in relation to
the same, she categorically stated that the same is not mobile phone with
which she clicked the photographs.
47. In cross-examination, some omissions were brought on record
which are minor and not substantive in nature. In cross-examination, she
Judgment 25 CONF-2-2024-F.odt
admits that the discharged accused Santosh Piparde was pressurizing the
victim girl for getting married due to which the victim girl had consumed
poison. However, she denied the suggestion that the accused did not
hang the victim girl. Rest of the cross-examination is nothing but giving
of suggestions to the witness as regards whatever she stated in the chief is
false. Thus, the defence failed to bring anything contrary to the oral
testimony brought on record by the prosecution in chief.
48. The defence, on the basis of certain improvements during the
cross-examination of PW-1, tried to say that PW-1 is a tutored witness.
49. PW-1, in her oral testimony, has narrated the entire incident, in
detail. The minor omissions brought on record by the defence in the
cross-examination did not destroy or shatter the case of the prosecution.
Notably, no suggestion was put-forth by the defence to imply that the
testimony of PW-1 was tutored by the police or by any discharged
accused.
50. PW-25 IO admitted in the cross-examination that she recorded
two statements of PW-1, in one of which, PW-1 has not stated that the
accused asked her to take pictures with 'blue' mobile phone. Thus, the
omission is of the colour of the mobile phone, which cannot be said to be
a material omission.
Judgment 26 CONF-2-2024-F.odt
51. PW-25 further admits in the cross-examination that PW-1, in
her first statement, did not state to her when the feet of the victim girl
were on the ground, she said 'Mujhe Mat Maro'. The omission is 'Mujhe
Mat Maro'. Similarly, PW-1 did not state that the accused kept Gaurav's
white jeans on his hands so that his hand prints would not come on it.
Further, PW-25 admits that PW-1 has not stated to her that the accused
has left chits on the place where he had killed the victim girl, in PW-1's
first statement. However, the said fact is proved by the prosecution
through PW-4 Nilkanth and PW-18 PSI Raut, who came to the spot and
found suicide notes lying near the victim girl.
52. The above-referred omissions or contradictions are not material
and the learned trial Court has rightly held that they are bound to appear
but unless they go to the root of the case, they will not be of any help to
the defence.
53. There is no dispute as regards presence of PW-1 or the accused
in the house at the time of the incident. Moreover, in absence of any
material brought on record by the defence to doubt the credibility of PW-
1's testimony, her evidence is reliable and worth to act upon it to base the
conviction.
Judgment 27 CONF-2-2024-F.odt
54. As discussed above, an evidence of a child witness, even if sole,
can form the basis of conviction, but it requires 'heightened scrutiny' to
rule out tutoring or fabrication.
55. The narration given by PW-1 is corroborated by the oral
testimony of PW-12 Vidya Budhbaware, who is the headmistress of the
school in which the victim girl and her siblings used to study.
56. PW-12 deposed that on 12/11/2022, the police summoned her
with Shrirame Sir, Somankar Sir and Sangita Date to record statement of
PW-1. The letter issued to record the statement is at Exh.77. She deposed
that the police recorded the statement of PW-1 and made its video
shooting in a mobile phone. She deposed that PW-1 in her statement
stated that her father woke her in the night when she was asleep and told
her that photographs were to be clicked to implicate Santosh. Her father
tied a rope used for goats and he had made the deceased victim to stand
on a stool and pushed the said stool and that her father had put a plastic
carry bag in his hand. She states that when her father moved the stool, at
first, victim's feet were touching the floor. After he moved the drum and
made the rope tied he again made the victim stand she started crying and
praying that not to make her stand on it. Thereafter, her father pushed
the stool and the deceased victim caught hold the iron bar to save herself,
the victim's father had pulled her.
Judgment 28 CONF-2-2024-F.odt
57. PW-12 further deposed that PW-1 told that she had clicked the
photographs with mobile phone handset. She further states that all the
three children stated them that their father used to beat them. The scorch
marks are present on the legs of N (PW-1) and mark of beating was also
present on her person.
58. PW-4 Nilkanth deposed that at 06:00 a.m. on 06/11/2022 the
accused came to his house and told him that the victim girl had
committed suicide by hanging. At that time he said to him "You have
killed her". Then he made a phone call to the Police Station and went to
the house of the accused and he saw that in the room having Devghar the
victim girl was seen hanging from noose tied to the hook. A stool was
lying there and chits were lying beside. He had picked up one chit and
read it. It was written there in that her maternal uncle and mother were
pressurizing her for getting married. On it, he said to the accused that he
only had killed the victim girl. He had a suspicion that the accused had
killed the victim girl. No pain was seen on the face of the accused for the
death of his daughter. In cross-examination PW-4 deposed that in the
month of January 2022 the victim girl had come alone to his house as she
was beaten.
Judgment 29 CONF-2-2024-F.odt
59. The learned defence counsel argued that the evidence of PW-4
needs to be discarded for the reason that he admits in his cross-
examination that he again read his statement today. It is argued that it is
not permissible that the police allowed the witness to read the statement
to refresh memory before entering into the witness box.
60. In this regard, it will be beneficial to refer to the observations
recorded by the Full Bench of the Gujarat High Court in Nathu
Manchhu v. State of Gujarat, reported in 1977 SCC OnLine Guj 37,
wherein it has observed thus:
"34. We may now examine the decision of the Division
Bench of the Bombay High Court in State v. Maganbhai
Jhaverbhai, Criminal Appeal No. 460 of 1953 decided by
Vyas and Bavdekar, JJ. on Sept. 29, 1953. The learned Judges
were considering the evidence of one Bai Sabu, daughter of
Kashia Khalpa. Her evidence would have connected the
accused of that case with the offence of murder under consid-
eration. Her case was that while she was preparing loaves, the
deceased all of a sudden hurriedly entered her house and ran
into the back yard in a bleeding condition. He was closely fol-
lowed in to the backyard by the six accused who were armed.
Thereupon, she was terrified and ran away from the house. It
was found that her police statement was read out to her be-
fore her evidence was recorded in the Committing Magis-
trate's Court as well as Sessions Court. Her statement was
recorded under S. 164 of the Code by a Magistrate and be-
fore that also her police statement was read out to her. The
case would fall under case No. 1 of the five illustrative cases
set out earlier. Vyas, J. was of the view that on account of
reading out of her police statement at three stages her evi-
dence was inadmissible in view of the decisions of the Privy
Council in Zahiruddin's case (48 Cri LJ 679(PC)) (supra). In
Judgment 30 CONF-2-2024-F.odt
his opinion, the view expressed by the Privy Council was not
to be confined "only to the physical use or tangible use of her
police statement by a witness while giving evidence in
Court." The learned Judge went on to say:
"In other words, in order that the observations of their
Lordships made by them in the above mentioned case may be
attracted, the police statement of a witness need not necessar-
ily be in his hands or before his eyes at the time of giving evi-
dence in the court."
"Speaking for myself, I have no doubt that their Lord-
ships' observations would apply with equal force even if a
witness made a mental use of his police statement, which was
just previously read out to him, because by reason of such
mental use, the witness's evidence was bound to be moulded
by or modelled on his police statement." The learned Judge
then proceeded to give illustration of a case in which a wit-
ness is "almost made to commit to memory his police state-
ment before stepping into the witness box to give evidence";
and reasoned on this basis that the evidence of such a witness
was bound to be almost a copy of his police statement. Speak-
ing with great respect, this is an extreme example; and ex-
treme examples do not become helpful in interpretation of
statute. With regard to Sabu's evidence, the learned Judge ob-
served that material parts of her police statement "must have
almost come to be committed to memory" and her evidence
"must have been modelled on her police statement". In the
end, the learned Judge said that reading over of the police
statement to witness before her stepping into the box
amounts to use of the police statement at the trial. Of course,
in the alternative, the learned Judge also said that the value of
Sabu's evidence must suffer considerably.
Bavdekar, J. refused to express any opinion on "how far
the evidence of a witness would become inadmissible on the
ground that the witness' police statement was used to refresh
his memory. He at the same time expressed concern on the
practice of reading over police statement to the witness before
he enters the box and said "it is doubtful how far the practice,
which has been deprecated by this court so often, would stop
unless this court were to hold categorically that the evidence
of a witness would be inadmissible in case his statement to
the police was used to refresh his memory". What is of utmost
significance for our purpose is the learned Judge's exposition
Judgment 31 CONF-2-2024-F.odt
of the basis of the Privy Council's decision in Zahiruddin's
case. The learned Judge said:--
"But the fact remains that, in the case which was before
their Lordships of the Privy Council, the witness had used the
statement to refresh his memory while he was under exami-
nation in the witness box and it was obvious, therefore, that it
could not be argued with any reason that the statement was
not used at the trial. I am inclined to think that the decision
of their Lordships of the Privy Council to exclude altogether
from the evidence the deposition of a witness given by him in
such circumstances was based not upon the view that the wit-
ness's evidence amounted to a police statement, but upon the
view that it was the policy of the Legislature to prevent any
use of the police statement of a witness at the enquiry or trial
and if the witness was allowed to use his police statement to
refresh his memory when he gave the evidence, it would be
defeating the statute to allow his evidence to come on
record". (Emphasis supplied), With respect, that is the correct
exposition of the ratio of the Privy Council decision which
was not based on any supposed identity between the police
statement and the evidence given, at the trial. If this is the
correct ratio laid down with respect to actual use of the police
statement while giving evidence, what logically follows from
it cannot be considered to be the ratio of the Privy Council's
decision. The said ratio does not apply to the questions re-
ferred to this Full Bench and those questions are not con-
cluded by the Privy Council decision.
35. We have already seen that in State v. Maganbhai
(Cri. App. No. 460 of 1953, D/- 29-9-1953) (Bom) (supra)
it was the opinion of Vyas, J. alone which laid down that the
evidence of a witness to whom police statement was read over
thrice at different times before she gave evidence in the Ses-
sions Court was inadmissible on the basis that the bar of S.
162(1) was contravened. Bavdekar, J., in terms refrained
from expressing definite opinion on this question. The Divi-
sion Bench of this High Court consisting of Divan and J.B.
Mehta, JJ. in Kathi Moti Lakha v. State of Gujarat, Criminal
Appeal No. 543 of 1962 decided on 21/22nd Nov. 1963 laid
down a similar principle after referring to the decision of the
Privy Council in Zahiruddin's case (48 Cri LJ 679(PC))
(supra) and Maganbhai's case (supra). The Division Bench of
this Court as appears from its judgment reproduced the ob-
servations of Vyas, J. in Maganbhai's case under the impres-
Judgment 32 CONF-2-2024-F.odt
sion that that was the decision of the Division Bench. Speak-
ing with great respect, I am of the opinion that the interpreta-
tion of S. 162 made by Vyas, J. and the Division Bench of
this Court is not correct in view of the conclusion reached by
me as to the interpretation and scope of the prohibition con-
tained in S. 162(1) in the context of the questions referred to
the Full Bench. It is already shown earlier that the cases cov-
ered by the questions referred to this Full Bench are not gov-
erned by the dictum laid down by the Privy Council in Za-
hiruddin's case (supra).
36. It must, however, be emphasised that the practice of
reading over police statements to witnesses before they enter
the box is not healthy practice.
37. In cases where such practice is resorted to, the Magis-
trates and Judges should carefully consider the evidence given
by the witness and decide upon the probative value of such
evidence in view of the facts and circumstances of each case.
38. Answers to the questions referred to this Full Bench
are as under:
(1) The evidence of such witness does not become inad-
missible; its probative value has to be judged in the circum-
stances of each case. No hard and fast rule can be laid down
that in all such cases the evidence of such witness will be of
no value whatsoever.
(2) Reading over of the police statement to the witness
before he enters the box does not amount to contravention of
the prohibition contained in S. 162(1). But the fact of read-
ing over of the statement may affect the probative value of
the evidence of the witness.
(3) Reading over of such a statement to the witness be-
fore he enters the box does not amount to use of such state-
ment contrary to S. 162(1). The matter will now go back to
the Division Bench.
61. Further, the Allahabad High Court in Rajesh Jha v. State of
U.P., reported in 2015 SCC OnLine All 8917, has observed thus: -
"30. Section 159 of the Evidence Act, provides as under:
"159. Refreshing memory.--A witness may, while under ex-
amination, refresh his memory by referring to any writing
Judgment 33 CONF-2-2024-F.odt
made by himself at the time of the transaction concerning
which he is questioned, or so soon afterwards that the Court
considers it likely that the transaction was at that time fresh in
his memory. The witness may also refer to any such writing
made by any other person, and read by the witness within the
time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memory.
--Whenever a witness may refresh his memory by reference to
any document, he may, with the permission of the Court, refer
to a copy of such document: Provided the Court be satisfied
that there is sufficient reason for the non-production of the
original. An expert may refresh his memory by reference to
professional treatises".
31. From the provisions quoted hereinabove, it is evident that the
witness can refresh his memory inter alia by referring to any writing
made by himself at the time of the transaction or so soon afterwards
that the Court considers it likely that the transaction was at that time
fresh in his memory.
33. Further, search about the refreshing of memory by a witness
took us to the judgment given by Court of Appeal in R. v. Da Silva,
[(1990) 90 Cr App R 233.] in the law of evidence by Ratan Lal and
Dheeraj Lal, the observation of the Court of Appeal has been quoted as
under:
"In our judgment, therefore, it should be open to the judge, in
the exercise of his discretion and in the interests of justice, to per-
mit a witness who has begun to give evidence to refresh his mem-
ory from a statement made near to the time of events in question,
even though it does not come within the definition of contempora-
neous, provided he is satisfied:
• that the witness indicates that he cannot now recall the
details of events because of the lapse of time since they
took place;
• that he made a statement much nearer the time of the
events and that the contents of the statement represented
his recollection at the time he made it;
• that he had not read the statement before coming into
the witness-box;
• that he wished to have an opportunity to read the state-
ment before he continued to give evidence.
We do not think that it matters whether the witness withdraws
from the witness-box and reads his statement, as he would do if he
Judgment 34 CONF-2-2024-F.odt
had the opportunity before entering the witness-box or whether he
reads it in the witness-box. What is important is that if the former
course is adopted, no communication must be had with the wit-
ness, other than to see that he can read the statement in peace.
Moreover, if either course is adopted, the statement must be re-
moved from him when he comes to give his evidence and he
should not be permitted to refer to it again, unlike a contempora-
neous statement which may be used to refresh memory while giv-
ing evidence. (PHIPSON ON EVIDENCE, 15th Edn. (2000),
pages 271-272 (para 11-51))."
35. Lastly, we would like to make a reference to Volume 28 of the
Halsbury's Laws of England, Fifth edition. Its para 562, throws light on
the point of refreshing memory. Para 562 reads as under:
"A witness in criminal proceedings may be permitted to refresh
his memory either in the course of his evidence or before going
into the witness box. In practice, it would be almost impossible for
a Court to control the extent to which witnesses refresh their mem-
ories before testifying, the testimony would become more a test of
memory than of truthfulness if witnesses were deprived of the op-
portunity of checking their recollection beforehand by reference to
statements or notes made at a time closer to the events in question.
Any rule purporting to deny witnesses prior access to their state-
ments would tend to create difficulties for honest witnesses but do
little to hamper dishonest witnesses.
A witness giving oral evidence in criminal proceedings about
any matter may, at any stage in the course of doing so, refresh his
memory of it from a document made or verified by him at an ear-
lier time, if:
• he states in his oral evidence that the document records
his recollection of the matter at that earlier time, and
• his recollection of the matter is likely to have been signif-
icantly better at that time than it is at the time of his oral
evidence.
Similarly, where such a witness has previously given an oral ac-
count, of which a sound recording was made, and he states in that
evidence that the account represented his recollection of the matter
at the time, and where his recollection of the matter is likely to
have been significantly better at the time of the previous account
than it is at the time of his oral evidence, and where a transcript has
been made of the sound recording, he may, at any stage in the
course of giving his evidence, refresh his memory of the matter
from that transcript.
Judgment 35 CONF-2-2024-F.odt
A document used by a witness to refresh his memory need not
have been made by the witness personally, provided it was verified
by him while the facts were relatively fresh in his memory. Where a
witness has dictated a note to, for example, a police officer, he need
not verify the original by inspecting it; it is enough if the officer
reads back to the witness what he has written. Documents may be
used to refresh memory even if they would not otherwise be admis-
sible if tendered in evidence, and there seems to be nothing to pre-
vent copies of original documents being used for this purpose.
It is not necessary that the witness should have any indepen-
dent recollection of the facts to which he testifies and of which he
seeks to refresh his memory, apart from the document to which he
refers."
62. Therefore, in view of the above-referred judgments, the
evidence given by PW-4 cannot be said to be completely inadmissible.
However, the probative value of the evidence given by this witness will be
considered as per the facts and circumstances of this case.
63. Thus, the prosecution has successfully brought on record the
evidence relating to the conduct and behaviour of the accused as regards
the incident of hanging. Whereas, the defence has failed to discredit or
demolish the prosecution's evidence. The minor omissions elicited in the
cross-examination of PW-1 are inconsequential and do not destroy or
shatter the prosecution's case.
64. It is imperative to note that the manner in which PW-1 narrated
the entire incident by giving the minute details, particularly the first
Judgment 36 CONF-2-2024-F.odt
failed attempt to hang the victim by the accused, followed by the second
attempt wherein the accused released the victim's hands upon noticing
that she was holding the iron bar, resulting in her death by hanging. Such
a detailed narration by a minor girl cannot be a result of any tutoring
unless she would actually witness the incident. Notably, no suggestion
has been put forth by the defence to imply that the testimony of PW-1
was influenced or tutored by the police or by any discharged accused.
65. The second direct evidence on which the prosecution has
heavily relied upon to prove the allegations under Section 302 of IPC are
the photographs, allegedly clicked by PW-1, at the time of the offence
being committed by the accused.
66. It is the prosecution's case that during the house search of the
accused, conducted on 09/11/2022, a blue coloured vivo mobile phone
was recovered and seized from a rice container, in which, there were some
photographs of the victim girl standing on a stool with a rope tied around
her neck. Similarly, there were photographs of the suicide notes which
were captured in October 2022, i.e. prior to the incident.
67. The defence has raised a challenge to the admissibility of the
blue coloured vivo mobile phone and the photographs allegedly obtained
Judgment 37 CONF-2-2024-F.odt
from that mobile phone, on various grounds, which are as follows:-
i. The mobile phone containing the photographs has not been duly
proved or identified in court, and its seizure procedure suffers from
serious infirmities.
ii. The prosecution has failed to establish an unbroken chain of
custody of the seized mobile phone and extracted data, leaving the
possibility of tampering open.
iii. The authenticity and reliability of the photographs are doubtful as
they do not clearly depict the accused and contain metadata
discrepancies and contradictions in forensic reports.
iv. The electronic records relied upon by the prosecution are
inadmissible due to absence of a valid certificate under Section
65B of the Indian Evidence Act.
v. The evidence of PW-21, PW-24, and PW-22, who dealt with the
mobile phone and extracted data, is inconsistent, unreliable, and
unsupported by panch witnesses.
vi. In light of the above infirmities, the cumulative evidentiary value
of the alleged photographs is negligible and the same cannot be
relied upon to base conviction.
68. On the other hand, it is submitted by the prosecution that
PW-1 has narrated, in detail, the entire account of how she clicked
Judgment 38 CONF-2-2024-F.odt
photographs of the incident. It is submitted that the accused can be seen
in the photographs along with the victim girl, which goes to the root of
the matter.
69. In light of the rival contentions, let us examine the evidence as
regards the photographs.
70. PW-21 Golu Sinha (photographer) deposed that on 18/11/2022
PW-25 had issued notice to him and called him to the Police Station for
photography and videography. He shot the proceedings of Panchanama
executed by the Police in connection with the offence committed by the
accused. Later he copied it from his computer in the pen drive.
71. PW-21 further deposed that the videography of the recording of
statement of younger daughter of the accused too was shot by him. Then
he copied it from his computer in the pen drive. He has handed over two
such pen drives to Police. PW-25 had seized both the said pen drives.
72. Then PW-25 obtained the hash value of the two pendrives
Exh.256 on dt. 24.12.2022.
Judgment 39 CONF-2-2024-F.odt
73. PW-21 further deposed that PW-25 had given him one mobile
hand-set with which he had clicked 27 photographs. He had also given
one more copy of the photographs. He had transferred the said
photographs from the mobile into his computer directly and then their
prints were taken out and handed over to them. Exhibit Nos. 22 to 40 are
the same photographs.
74. PW-24 Ravi Kulsange, a technician attached to Cyber Police
Station, Nagpur transferred the data from mobile to the hard disk, as per
the request made by PW-25 by issuing a letter on 25/12/2022.
75. PW-25 prepared panchnama Exh.207 regarding this. She
received some photographs of the deceased victim girl and the accused
from the mobile of the accused, 10 photographs of suicide notes and 6
photographs of the time when the victim girl was admitted in the hospital
on 10/10/2022.
76. On 26/12/2022, PW-24-Ravi obtained hash value of the hard-
disk Exh.209 and issued certificate in respect of obtaining hash value and
65-B, Exh.210 and 211, respectively.
Judgment 40 CONF-2-2024-F.odt
77. PW-25 then sent all the mobiles, reference photographs of the
accused and photographs of suicide notes to Chemical Analyzer with
letter Exh.116. She received invoice Exh.117 and challan Exh.118 from
NPC Suresh. On 02/01/2023, she sent original suicide notes with
specimen natural handwriting of the victim girl to Handwriting Expert as
per letter Exh.199, report of which is at Exh.203 and C.A. Report is at
Exh.185.
78. PW-22 Dr. Prajakta Pathe, Scientific Officer in Regional
Forensic Science Laboratory, Cyber Department, states in her evidence
that her department received requisition Exh.116 dated 30/12/2022 for
examination of mobile phones, sim-cards, reference photographs taken by
PW-11 Anand Malkar as per the request of PW-25, and documents in
Crime No.634 of 2024 from Police Station, Kalamna. PW-22, on
completing her analysis, submitted her report as regards all the above
articles.
79. She further stated that she had received four sealed envelopes.
In first envelope which was marked as B1 by P.S. Kalamna, she found one
mobile phone and two sim cards, to which she marked the mobile phone
as EX-1. It was of vivo company having model number 1901. It has two
IMEI numbers i.e. (1) 864684043522693 and (2) 864684043522685.
Judgment 41 CONF-2-2024-F.odt
She marked it Exh.2 and Exh.3 EX2XX3 numbers to the SIM cards, they
were of Jio company. The serial number of Exh.2 sim card is 8991 8540
400 442712928 and Exh.3- 89918640400522079115. The said mobile
belongs to the accused. She has also received reference photographs of the
accused. Police marked them as B-5 collectively. She marked it as Exh.11
to Exh.14 respectively. The police marking to the 11 reference documents
as B-6 collectively. She marked the same as Exh.15 to Exh.25,
respectively. The said photographs were in respect of expression of the
accused and victim girl. Some of them were in respect of hanging rope in
neck of the victim girl.
80. She further deposed that there were other 11 documents. Police
marked the same as B-7 and she marked it as Exh.26 to 36. These were
the photographs of the spot, showing the victim girl in hanged condition.
There were other four reference photographs of victim girl. Police marked
it as B-8, collectively. She marked it as Exh. 37 to Exh. 40. The other five
reference photographs at B9, collectively she marked it as Exh.41 to
Exh. 45.
81. PW-22 further stated that she used forensic tools to extract data
from mobile phone and sim cards. After analysis she can say that she
found Exh.15 to 36 and Exh. 41 to 45 in the phone Exh.1, which belongs
Judgment 42 CONF-2-2024-F.odt
to the accused and the phone which has captured the image after the
analysis also found to be vivo 1901, which is Exh.1.
82. She further stated that she also found images of suicide notes
other than the suicide notes which are referred to her for analysis in
mobile phone Exh.1. She has filed hard copies of suicide note and photos
of accused and victim girl which are at Exh. 179/1 to 179/17. She found
the photographs Exh.180 and 181, 154 and 155 and they were found in
the mobile of accused. She also found the similar photographs in the
mobile of accused which are at Exh. 182 to 184.
83. She further stated that she extracted all the data found in the
mobile of the accused and saved in the hard disk. Accordingly, he issued a
CA report Exh.185. Then she transferred all the data from all the mobiles
and sim card and memory card in the hard disk. She deposed that in a
similar way she extracted the data from the mobile of discharged person
Aarti, Santosh and Kaushalya.
84. The hard disks were played before the trial Court that she has
proved her analysis report. She has categorically deposed that she found
the photographs, in the mobile phone of the accused relating to the
incident of hanging of the victim girl.
Judgment 43 CONF-2-2024-F.odt
85. Upon a careful examination of the material on record, we are of
the considered view that even though the said photographs go to root of
the matter, they suffer from serious fundamental infirmities, which render
them unsafe for reliance. The following foundational defects strike at the
very admissibility of the material:
(i) The prosecution has failed to duly prove the mobile phone said
to have been used by PW-1 to capture the photographs.
(ii) The chain of custody of the said mobile phone has not been
satisfactorily established.
(iii) No hash value of the data stored in the mobile phone was
generated at the time of seizure or prior to extraction of the
photographs, which casts a serious doubt on the authenticity of
the digital material.
86. Although it has been asserted that PW-1 captured the images,
the record shows that she was not asked to identify the mobile phone in
Court. This lapse is fatal to establishing the source device.
87. Further, PW-8, who acted as a panch to the house search
conducted on 09/11/2022, during which the phone was allegedly seized,
has also not identified the mobile phone in the Court.
Judgment 44 CONF-2-2024-F.odt
88. Thus, the identity of the source device has remained unproved.
Establishing such identity is a necessary precondition to consideration of
its contents; failure in this regard goes to the root of admissibility.
89. The prosecution has also not furnished contemporaneous
documentation reflecting the movement, sealing, storage, and handling of
the mobile phone post-seizure. No Malkhana Register entries, or
endorsements demonstrating contemporaneous sealing, have been
produced.
90. It further emerges that PW-21, PW-24, and PW-22 handled the
said mobile phone at various stages; however, the record is either silent or
incomplete regarding handover-takeover documentation, and, in certain
instances, even the condition of sealing has not been proved.
91. Rule 148 (2) of the Bombay Police Manual, 1959 (Vol III,
Appendix XXIV) reads as follows:
"(B) Other precautions - Special care should be taken to avoid the
following faults:- The integrity of exhibits and control samples must be
safeguarded from the moment of seizure up to the completion of
examination in the laboratory. This is best done by immediately
packing, sealing and labelling and to prove the continuity of the
integrity of the samples, the messenger or bearer will have to testify in
Court that what he had received was sealed and delivered in the same
condition in the laboratory. The laboratory must certify that they have
compared the seals and found them to be correct. Articles should
always be kept apart from one another after packing them separately
and contact be scrupulously avoided in transport also."
Judgment 45 CONF-2-2024-F.odt
92. The Division Bench of this High Court, in the case of Ashraf
Hussain Shah v. State of Maharashtra, reported in 1996 SCC OnLine
Bom 683, has held as under: -
"14. First of all we would like to observe that the learned trial judge
was perfectly justified in rejecting the evidence of recovery of blood
stained clothes and knife at the pointing out of the appellant,
primarily on the ground that there was no evidence to indicate that
after seizure these articles were sealed. A Division Bench of this
Court to which one of us (Vishnu Sahai J) was a party in the case of
Deoraj Deju Suvarna v. State of Maharashtra, reported in 1994 Cri
LJ 3602, after considering a large number of authorities has held
that not only should the prosecution adduce evidence that after
seizure the articles were sealed but should also lead link evidence to
the effect that till being sent to the Chemical Analyst they were kept
throughout in a sealed condition. This is done to eliminate the
suspicion that blood might not have been put on the articles
subsequent to the recovery and prior to being sent to the Chemical
Analyst."
93. Then, in the case of Mohd. Iqbal alias Munna v. State of
Maharashtra, reported in 2016 SCC Online Bom 5365, the Division
Bench of this High Court has held as under: -
"46. Though the query report was received on 13th of November,
2009, Muddemal articles like the clothes of the accused and the
weapons were sent to Chemical Analyzer by Investigating Officer
under requisition (Exh.107) on 2nd of February, 2010 vide Outward
No. 246 of 2010. Now, from 13th of November to 2nd of February,
2010 where these articles were lying? Whether they were kept in
proper sealed condition? Whether they were in proper custody?.
There is no prosecution evidence to answer the aforesaid questions.
The prosecution was obliged to adduce the evidence to show that
after the articles seized were properly sealed and they were in proper
custody and were kept throughout in a sealed condition i.e. right
from the time of recovery till being sent to the Chemical Analyzer.
The prosecution evidence is clearly wanting on the said aspect.
Therefore, in our view, the learned Senior Counsel has rightly placed
his reliance on dictum of this Court reported in 1995 Cri LJ 1432
(State of Maharashtra v. Prabhu Barku Gade) for extending benefit
in favour of the appellants."
Judgment 46 CONF-2-2024-F.odt
94. In Sanjay Devaji Ramteke v. State of Maharashtra , reported in
2020 SCC OnLine Bom 431, this Court has held as under: -
"32..Contemporary document, recovery panchanama (Exh.-28) is
conspicuously silent in respect of "sealing" of the clothes on the spot.
Evidence of Fulchand (PW6) does not show that steps were taken
by the investigating officer to seal the clothes of the appellant.
Evidence of the investigating officer Sohansingh (PW4) is also silent
on this aspect. He did not depose that after seizure, he applied seal
to the bundle of clothes. Seizure form (Exh.-28A) regarding clothes
of the appellant is also not having specimen of seal as given in
format. Ultimately, during cross-examination, the investigating
officer was required to admit that inadvertently it remained.
Contemporaneous documents and evidence of the prosecution
witness Fulchand (PW6) and even the evidence of investigating
officer does not show that clothes of appellant were sealed after
those were seized from the spot. In Tulshiram Bhanudas Kambale v.
State of Maharashtra; reported in 2000 CRI.L.J. 1566 and Mohd.
Iqbal alias Munna s/o Abdul Sattar v. State of Maharashtra, through
PSO P.S. Lakadganj, Nagpur; reported in 2016 All MR (Cri) 4530,
it is the direction of the Court that where evidence of the
investigating officer shows that after effecting recovery of articles he
did not affix the lac seals on them, no evidentiary value can be
attached to said recovery.
33. Similarly, on earlier occasion also, in Lalchand Cheddilal Yadav
v. The State of Maharashtra, reported in 2000 (3) Mh. L. J. 438, this
Court discarded scientific evidence when it was noticed that articles
stained with blood were not sealed."
95. Similarly, in the case of Samadhan v. State of Maharashtra,
reported in 2021 SCC OnLine Bom 13, the Division Bench of this High
Court has held as under: -
"75. ...In this connection, it would be pertinent to refer to para 8 of
the Division Bench decision of the Rajasthan High Court in State of
Rajasthan v. Motia [State of Rajasthan v. Motia, 1953 SCC OnLine
Raj 51 : AIR 1955 Raj 82] accused, wherein Wanchoo, CJ, (as he
then was) observed thus:
'... It is, therefore necessary for the prosecution to produce evidence
that steps were taken at once to seal the articles, and that from the
Judgment 47 CONF-2-2024-F.odt
time the articles came into possession of the police to the time they
were sent for identification before a Magistrate or for examination to
the chemical examiner the seals remained intact. This evidence is
missing in this case. It is, of course not difficult to sprinkle a few
human bloodstains on articles recovered if somebody wants to do so.
We do not say that this was done in the present case; but as
precautions were not taken the argument raised on behalf of the
accused that this might have been done remains unrefuted...'
96. From the above-referred observations of this Court, it is evident
that the prosecution should establish that after effecting recovery of
articles, the articles were sealed and they were kept throughout in sealed
condition and were kept in proper custody till being sent to the chemical
analyst. This is to be done to eliminate the suspicion that the articles were
tampered.
97. Therefore, in view of the serious deficiencies in establishing
chain of custody in the present case, the integrity of the electronic
material stands unestablished.
98. Moreover, neither at the time of seizure nor before extraction
was any hash value of the photographs computed. Computation and
matching of hash values is a recognised forensic safeguard to verify
integrity and authenticity of electronic data. The hash value of the
photographs should have been ascertained at the very first stage when
Judgment 48 CONF-2-2024-F.odt
PW-21 extracted the photographs from the mobile phone of the accused
on the instructions of PW-25. In the absence of such verification, the
originality and authenticity of the photographs remain doubtful, and the
possibility of alteration, deletion, or manipulation cannot be ruled out.
99. For the aforesaid foundational reasons, we are of the considered
view that the prosecution has failed to establish the basic prerequisites for
the admissibility and reliability of the photographs. Consequently, the
said photographs and their derivative outputs stand excluded from
consideration.
100. Since the evidence of photographs fails at the threshold itself, a
deeper examination of the remaining objections pertaining to them is
unnecessary.
101. This exclusion, however, does not affect the analysis recorded
herein above of the oral and circumstantial evidence which has
sufficiently proven the crime committed by the accused beyond
reasonable doubt. Therefore, we are of the considered view that the
prosecution has successfully proved the allegations under Section 302 of
IPC.
Judgment 49 CONF-2-2024-F.odt
102. Let us now examine the evidence with respect to the offence
punishable under Sections 376(2)(f) and 376(2)(n) of the IPC read with
Section 6 of the POCSO Act.
103. It is the case of the prosecution that, after the arrest, the accused
disclosed to PW-25 API Dandawate that he repeatedly committed rape
on victim girl. However, this disclosure statement of the accused is not
admissible as evidence. Therefore, it is important to see other evidence on
record to ascertain the allegations of rape.
104. The learned Senior Advocate Shri Anil Mardikar submits that
the accused has been convicted for sexual assault based on surmises. It is
submitted that there is no forensic evidence which links the accused to
the alleged sexual assault. It is submitted that PW-1 nowhere states that
the deceased was sexually assaulted by the accused. It is, therefore,
submitted that the foundational facts have not been established for the
presumption under section 29 of POCSO Act to shift to the accused. To
buttress his arguments, the learned defense counsel has placed reliance on
(GNCT of Delhi) vs. Kuldeep, 2019 SCC OnLine Del 7261, and Pravin
Ruprao Harde vs. State of Maharashtra, 2024 SCC OnLine Bom 2475.
Judgment 50 CONF-2-2024-F.odt
105. On the other hand, the Government Pleader and Senior
Advocate Shri. Chauhan submits that it is the case of the prosecution that
the accused used to commit rape on the victim girl repeatedly.
106. In light of the rival contentions, let us look at the law in cases of
POCSO Act.
107. In the case of Pravin Ruprao Harde (supra), this Court had an
occasion to deal with the presumption under section 29 of the POCSO
Act, wherein it observed thus: -
"10. At the outset, it needs to be stated that the crime against the
children is required to be viewed seriously. The perpetrator of the
crime does not deserve any leniency. The lawmakers have provided
for presumption in such a crime under Section 29 of the POCSO
Act with regard to the guilt of the accused in certain circumstances.
However, the basic principle of criminal jurisprudence that the guilt
of the accused has to be proved beyond reasonable doubt cannot be
done away with completely. Initial burden is on the prosecution to
prove the charge against the accused. The presumption under
Section 29 of the POCSO Act is not an absolute presumption. The
presumption can be triggered only in case the prosecution is able to
establish the foundational facts. The foundational facts as to the
charge must be proved to the satisfaction of the Court by leading
cogent, concrete and trustworthy evidence. The foundation has to be
laid on the basis of the trustworthy evidence. Once the foundation is
laid to the charge, then the presumption would get attracted. In this
backdrop, it would be necessary to appreciate the evidence adduced
by the prosecution.'
108. Similarly, in the case of Kuldeep (supra), with regard to the
standard of proof required in cases of presumption, the Delhi High Court
held that the burden is on the prosecution to prove foundational facts
beyond reasonable doubt.
Judgment 51 CONF-2-2024-F.odt
109. It is evident from the above-referred observations that in cases
under the POCSO Act, Section 29 introduces a 'reverse burden' by
presuming the guilt of the accused unless rebutted, while Section 30
presumes the existence of a culpable mental state. However, the
presumption operates only when the prosecution establishes the
foundational facts of the offence through cogent and trustworthy
evidence.
110. In view of the above law, let us examine the evidence with
respect to the penetrative sexual assault.
111. Firstly, there is no dispute as regards the age of the victim girl at
the time of the offence. The Birth Certificate (Exh.108) of the victim girl
shows that she was 16 years old at the relevant time. Therefore, she can be
said to be a 'child' under the provisions of the POCSO Act.
112. To prove that the victim girl was sexually assaulted, the
prosecution has examined PW-5 Dr. Deepak Sangle, who conducted the
post-mortem of the victim girl. He deposed that no injury was found over
the external bluish genital, but the hymen was torn showing old healed
margins. Usually, hymen remains intact in girls of 16 years old. So, he
opined that sexual assault cannot be ruled out.
Judgment 52 CONF-2-2024-F.odt
113. During cross-examination, when a suggestion was given to PW-
5 that the hymen may get torn by other physical activities, he deposed
that the hymen may get torn in horse riding and not due to other
activities. He deposed that the hymen was extremely torn, and therefore,
it was not possible to say that hymen was torn due to other activities like
cycling and other physical activities. He further deposed that there were
no external fresh injuries in respect of sexual assault. There were no
external fresh injuries on the body of the victim to prove sexual assault.
114. The prosecution has primarily relied on the post-mortem report
of PW-5 Dr. Sangle. His deposition indicates that the hymen of the
victim was torn with old healed margins. While he opined that sexual
assault could not be ruled out, he also admitted that there were no fresh
injuries or forensic findings to confirm recent sexual intercourse
attributable to the accused. His opinion, therefore, is inconclusive and
does not positively establish sexual assault at the relevant time.
115. Further, the prosecution relied upon the ocular evidence of PW-
4 Nilkanth wherein he deposed that he had cordial relations with the
victim girl. The 'victim girl' had come to him in the year 2022. He had
kept her with him for a month. The accused had beaten her with a belt
and beaten her by keeping a cylinder on her chest as she was taking a
Judgment 53 CONF-2-2024-F.odt
selfie. The accused had come to take her back two-three times and she
was refusing and at that time, accused was staring at her angrily. When he
(PW-4) asked the 'victim girl' as to why she was not going, she told him
that the accused beats her, wakes up in the night and that she was afraid
of the accused.
116. Importantly, the prosecution has not produced any forensic
evidence such as DNA profiling or biological samples which could link
the accused to the act of sexual assault.
117. In this backdrop, we find that the prosecution has failed to
discharge the initial burden of proving the foundational facts so as to
enable the Court to draw the presumption under Section 29 of the
POCSO Act.
118. Thus, we are of the considered view that the allegations against
the accused under Sections 376(2)(f) and 376(2)(n) of the IPC read with
Section 6 of the POCSO Act do not stand proved.
119. In the present case, the learned Special Court has imposed the
punishment of death penalty on being held that the accused committed
offence under Section 302 of IPC and under Section 6 of the POCSO
Judgment 54 CONF-2-2024-F.odt
Act, 2012. The question before us is whether the manner in which the
crime has been committed by the accused falls under the category of
'rarest of rare' cases, as prescribed in the case of Bachan Singh (supra), to
impose a death penalty.
120. The Hon'ble Supreme Court, in the case of Bachan Singh
(supra), emphasized that sentencing requires consideration of both the
crime and the criminal, with the weight of aggravating and mitigating
factors varying by case. Since the nature of the crime often reflects the
offender's character, both aspects are intertwined, and only when the
conduct displays extreme depravity can "special reasons" exist to justify
the death penalty. While aggravating circumstances may warrant harsher
punishment, mitigating factors must be interpreted broadly, as death is to
be imposed only in exceptional cases. Courts must exercise great caution
and humanity, recognizing that life imprisonment is the rule and the
death sentence an exception, permissible only in the "rarest of rare"
situations where no alternative remains.
121. Streamlining the guidelines discussed in Bachan Singh (supra),
the Hon'ble Supreme Court of India, in the case of Machhi Singh v. State
of Punjab, (1983) 3 SCC 470 observed thus: -
Judgment 55 CONF-2-2024-F.odt
"38. In this background the guidelines indicated in Bachan Singh case
[(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980
Cri LJ 636] will have to be culled out and applied to the facts of each
individual case where the question of imposing of death sentence
arises. The following propositions emerge from Bachan Singh case
[(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980
Cri LJ 636] :
(i) The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
'offender' also require to be taken into consideration along with the
circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed only
when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the
crime, and provided, and only provided, the option to impose
sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the crime
and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has
to be drawn up and in doing so the mitigating circumstances have
to be accorded full weightage and a just balance has to be struck
between the aggravating and the mitigating circumstances before
the option is exercised.
39. In order to apply these guidelines inter alia the following questions
may be asked and answered:
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in
favour of the offender?
40. If upon taking an overall global view of all the circumstances in the
light of the aforesaid proposition and taking into account the answers
to the questions posed hereinabove, the circumstances of the case are
such that death sentence is warranted, the court would proceed to do
so.'
Judgment 56 CONF-2-2024-F.odt
122. Some of the aggravating and mitigating circumstances, as given
in the case of Bachan Singh (supra), are as under: -
"Aggravating circumstances: A court may, however, in the following
cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and
involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the
Union or of a member of any police force or of any public servant
and was committed--
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by
such member or public servant in the lawful discharge of his duty
as such member or public servant whether at the time of murder
he was such member or public servant, as the case may be, or had
ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge
of his duty under Section 43 of the Code of Criminal Procedure,
1973, or who had rendered assistance to a Magistrate or a police
officer demanding his aid or requiring his assistance under Section
37 and Section 129 of the said Code."
Mitigating circumstances.--In the exercise of its discretion in the above
cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme
mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall
not be sentenced to death.
(3) The probability that the accused would not commit criminal acts
of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the accused does
not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused
believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of
another person.
(7) That the condition of the accused showed that he was mentally
defective and that the said defect impaired his capacity to appreciate
the criminality of his conduct."
Judgment 57 CONF-2-2024-F.odt
123. The Supreme Court in Shankar Kisanrao Khade v. State of
Maharashtra, reported in (2013) 5 SCC 546 held that in considering the
death penalty, courts must apply three tests: the "crime test" (requiring
full satisfaction of aggravating factors), the "criminal test" (requiring
absence of mitigating factors), and finally the "rarest of rare" (R-R) test. If
any mitigating circumstance exists, such as youth, lack of intent, potential
for reformation, or absence of criminal history, the criminal test favours
the accused, making the death penalty inappropriate. Even when the
crime test is fully met and no mitigating factor is present, the death
sentence may be imposed only if the R-R test, based on society's
perception rather than the judge's view, is satisfied, reflecting societal
abhorrence toward particularly heinous crimes.
124. From the above exposition of law, it is clearly evident that life
imprisonment is the rule and death sentence is an exception, which must
be inflicted only in gravest cases of extreme culpability. While
aggravating circumstances may warrant harsher punishment, mitigating
factors must be interpreted broadly, as death is to be imposed only in
exceptional cases.
125. The learned Special Court has rightfully noted the aggravating
circumstances against the accused. However, we are of the view that the
Judgment 58 CONF-2-2024-F.odt
learned Special Court failed to consider the mitigating circumstances, and
therefore has erred in categorizing the present case in the category of
'rarest of rare' cases.
126. In the present case, the accused is around 41 years old.
Admittedly, the accused has no prior criminal record and, till date, has
not been convicted of any other offence. Thus, the probability that the
accused can be reformed and rehabilitated cannot be denied.
127. Therefore, upon perusal of the entire evidence on record and
the above-referred law as regards death penalty, we are of the considered
view that the sentence of death imposed on the appellant is inappropriate.
Accordingly, we answer the reference under Section 366 (1) of the Code
in negative and thereby dismiss the Confirmation Case No.02 of 2024.
128. Moving further to allegations under Section 323 of the IPC and
Section 75 of the Juvenile Justice Act. It is the case of the prosecution that
the accused used to beat his children. PW-1, in her oral testimony, has
deposed that she sustained injury on left arm. The accused had beaten
her with pipe for committing a mistake. Whenever siblings used to
commit mistake, the accused used to beat them and make them stand in
the sun.
Judgment 59 CONF-2-2024-F.odt
129. PW-3 Sarika Santosh Kosarkar deposed that the accused is her
neighbour. The accused is short-tempered by nature. Therefore, she did
not used to speak with him. She deposed that the accused used to beat
Kaushalya and therefore, she used to leave the house. The accused used to
beat the children also. He has inflicted scorches on PW-1. Similarly, he
used to pour sugar water and once ants gathered he used to make the
children sit on it. Prior to the incident, the accused used to beat the
victim girl with bamboo and sticks. Similarly, the accused used to beat
the victim's brother.
130. PW-20-Yogita Dnyaneshwar Kose deposed that the accused was
residing in front of her house. On the date of occurrence of the
incidence, the accused had informed her that the victim girl died due to
hanging herself. She further states that the accused was a short-tempered
person. The behaviour of the accused with Kaushalya was ill-natured and
therefore, she used to dessert him. The accused used to scorch the body
of the children with yardstick and used to beat them with stump. The
accused once attempted to pour petrol / kerosene on the children in front
of her house. She further states that by way of punishment the accused
used to make his children stand in the sun, outside the house where ants
used to infest. Due to fear, the neighbours were not on talking terms with
the accused. If they intervened to convince him, he used to give threat to
Judgment 60 CONF-2-2024-F.odt
them that he would implicate them. In cross-examination, she
categorically deposed that she personally witnessed the accused while
beating his children.
131. PW-4 Nilkanth deposed that the victim girl had come to him in
the year 2022. He had kept her with him for a month. The accused had
beaten her with belt and beaten her by keeping cylinder on her chest as
she was taking a selfie. When the accused had come to take her back 2-3
times she refused and at that time the victim told him that the accused
beats her, wakes up in the night and that she was afraid of the accused.
132. PW-6 Dr. Vishwajit Bobde, who examined the injuries on the
body of PW-1, deposed that on 29.11.2022, he was on duty as a Casualty
Medical Officer at IGMC, Nagpur. He received requisition (Exh.61)
from police station Kalamana to examine PW-1, aged 12 years. API
Chanda Dandawate had brought said girl. There was no fresh injury on
her person and no fresh complaint was there. He examined her and he
found following injuries on her person :-
Injury No.1: Old scar mark present over right foot, dimension 0.5
cm x 10 cm was elevated. (The portion comes out after healing).
Injury No.2: Old scar suture mark present over left foot,
dimension 0.3 cm x 7 cm.
Injury No.3: Old scar mark over left foot, dimension 1 cm x 5 cm.
Blackish in colour
Judgment 61 CONF-2-2024-F.odt
Injury No.4:- Old scar mark circular in shape, 2 cm x 2 cm.
Margin not clear.
Injury No.5:- Deformity on right elbow (deformity means the
alignment was not normal).
133. He further deposed that all scar marks are old, margins are not
clear. Hence, he could not comment on the weapon of injury. The injury
No. 5 can be possible if a person is beaten with a stick or pipe.
Accordingly, he has issued the certificate (Exh.62). In cross-examination,
he admitted that all the injuries are possible if child falls during playing
and deformity is possible by birth. However, just by admitting the other
possibilities, his evidence regarding prosecution case that PW-1 used to
be beaten does not get demolished.
134. The defence could not show any reason to disbelieve the
evidence of PW-1, PW-4, PW-3, PW-20 or PW-6. Therefore, we are of
the considered view that the prosecution has successfully proven that the
accused voluntarily caused hurt to PW-1. Similarly, the prosecution has
also proven that the accused, while in-charge and control of his children,
being father, abused them and assaulted them mercilessly, neglected them
and thereby caused his children mental and physical sufferings. Thus, the
prosecution has proved the allegations against the accused under Section
323 of IPC and Section 75 of the Juvenile Justice Act.
Judgment 62 CONF-2-2024-F.odt
135. Let us now examine the evidence with respect to the allegations
under section 307 of the IPC against the accused.
136. It is the case of the prosecution that the accused attempted to
kill the victim girl previously in the month of October 2022 by
administering poison to her. At that time, she was hospitalized in Mayo
Hospital and she survived. The prosecution asserts that as she survived
from that attempt, the accused planned and executed the incident of
hanging of the victim girl. According to the prosecution, the accused
repeatedly raped the victim girl, and then, under the guise of giving her
medication to relieve her pain, administered poison to her on the night of
09.10.2022.
137. While describing the said incident, PW-1 deposed that the
incident of consuming poisonous substance by the 'victim girl' had
happened prior to this incident. Her father had administered poison to
the 'victim girl'. At that time, she was admitted to the hospital. At that
time, the 'victim girl' was admitted to hospital for 2-4 days.
138. In her cross-examination, it is brought on record that PW-1 has
not stated the fact of taking poison to the police in her first statement.
Judgment 63 CONF-2-2024-F.odt
139. PW-4 Nilkanth deposed that in the month of October 2022 at
06:00 a.m. he had received a phone call of the victim girl. At that time,
the victim girl told that she wanted to talk with him. She used to address
him as 'Bade Pappa'. She said to him "Bade Pappa Jaldi Ghar Par Aao
Nahi To Main Apko Dikhungi Nahi." At that time he went to her house
when the accused told that the victim had consumed poison and he
showed him one bottle and told that it was his wife Kaushalya's Sickle
Cell medicine. Later he had taken out one chit from near pillow of the
victim girl and given it to PW-4 wherein it was written that "Bade Pappa,
Maze Mama Mami Lagnakarita Dabav Takat Ahet" (my maternal uncle
and aunt are pressurizing me to get married). He further deposed that
health of the victim girl was not good, he immediately took her to Mayo
Hospital.
140. PW-11 HC Rewatkar deposed that on 09.10.2022, from 9.00
o'clock in the night till 10.00 o'clock in the morning, he was on night
duty. In the morning, an intimation was received on a phone call from
Mayo Police Booth. The said intimation that was received was about
consuming poisonous substance by the victim girl and admitting her to
Mayo Hospital on account of deterioration of her health. The Duty
Officer orally directed him to record statement of the victim girl.
Thereafter, he recorded her statement.
Judgment 64 CONF-2-2024-F.odt
141. PW-11 further deposed that as age of the said girl is below 18
years, her statement was recorded in presence of her father. She stated
that on 08.10.2022, her step-mother Kaushalya, Kaushalya's brother
Santosh and his companion named Tulsi had come to her house and they
were talking about her marriage with one another and she heard the said
talk and since then she became tensed and therefore, on 10.10.2022, at
2.00 o'clock, in the night, she consumed a substance named Pentagene
(V.O.) and as her health got deteriorated, her father brought her to the
Hospital. Signature of the victim girl and thumb impression of her father
were obtained on that statement.
142. The statement Exh. 74 shows that victim girl has stated to PW
11 HC Rewatkar that her stepmother Kaushalya and her brother Santosh
were talking about her marriage and therefore she got stressed and
consumed poison. It is the case of the prosecution that the victim girl
gave statement as per the say of accused, in order to falsely implicate the
discharged persons.
143. PW-25-IO-Dandwate, in her oral testimony, narrated the
investigation carried out by her in this regard. PW-25 deposed that on
08/12/2022, she had issued letter to the Dean of Medical College,
Nagpur for providing treatment paper of the incident occurred in the
month of October. Accordingly, treatment papers were received vide
Judgment 65 CONF-2-2024-F.odt
Exhibit No. 102. Thereupon, she had recorded statement of Satish
Nipane from whom the accused had purchased bug killer medicine.
During the course of investigation, it was revealed that at the time of
incident occurred in the month of October, accused Guddu compelled
the 'victim girl' to write suicide notes. Photographs of suicide notes were
also taken in the month of October and those were found in the mobile
phone and the 'victim girl' had given false information to Police at the
instance of accused Guddu.
144. PW-15 Dr. Dipti Chand, who was working as Professor as a
Head of Department of Medicine, deposed that their department had
received letter dated 08/12/2022 and request was made to provide
documents in respect of patient Mahi Guddu Razak admitted on
10/10/2022. This letter was received by Dean, Medical Hospital, Nagpur.
Their Record Department had given the documents to police. As per
these documents the patient was admitted in the morning hours on
10/10/2022 with history of vomiting since 2.00 a.m. in the night. As per
admission notes there was suspect of poisoning. A blood report was sent
for it. The report was received for serum choline esterase which was below
normal suggestive of oregano phosphorus poisoning. She was treated for
the same. She improved over the period of two days and on 13/10/2022
she was discharged in the healthy condition.
Judgment 66 CONF-2-2024-F.odt
145. PW-15 further deposed that on the basis of presence of serum
choline esterase and from the clinical examination, she was a case of
organophosphorus poisoning. She was treated for that. She improved and
thereafter recovered and discharged on 13/10/2022.
146. In her cross-examination, she was asked about Exh. 102,
wherein there is mention of unknown compound consumption. To which
she explained that it was the organo phosphorus compound, but earlier
they were not sure which organo phosphorus compound consumed by
victim girl. From the clinical observation and pathological report, she can
say that serum/choline esterase was present and thus it was the case of
organo phosphorus poisoning.
147. During cross-examination, she admitted that there are three
reasons mentioned in Exh. 102. Those are viral hepatitis seriosis,
metastatic, carcinoma and organo phosphorus poisoning. She explained
that there were no clinical signs of viral hepatic seriosis and metastatic
carcinoma and as there were no clinical sign, the two samples were not
taken. She further admitted that the amino compound can be inhaled by
the person if he has an access to pest control in day-to-day life. However,
there is no such case made out by the defence in the cross-examination of
any of the witness. Therefore, the admission given by the doctor will not
be helpful to the defense.
Judgment 67 CONF-2-2024-F.odt
148. Thus, the evidence of the PW-15 Dr. Dipti clearly shows that
on 10.10.2022 the victim girl was admitted for consumption of poison.
She was treated in the hospital and it was the case of organo phosphorus
poisoning.
149. PW-15 Dr. Dipti Chand opined that if the victim girl would
have not been treated at the right time, it would have been dangerous for
the life of victim girl. Her evidence has not been shaken in cross-
examination.
150. It is the case of the prosecution that the accused purchased the
poison from PW-9 Satish Nipane, who runs a hardware shop in the same
locality.
151. The learned defense counsel submitted that the testimony of
PW-9 is unreliable because of absence of any documentary record to
support his assertion. It is also submitted that it is unlikely for PW-9 to
remember the exact date and time when the accused allegedly purchased
poison from his shop.
152. Whereas, the learned Govt. Pleader submitted that the accused
is the resident of the same locality where PW-9 Satish runs hardware
Judgment 68 CONF-2-2024-F.odt
shop, and the defense has not brought on record any evidence to negate
his evidence.
153. PW-9 deposed that he runs a hardware shop in the same locality
in which the accused resides. He sells acid, phenyl and powder to kill ants
and bed bugs. Similarly he also sells other domestic articles. He knows
accused by face. He (accused) used to come to his shop intermittently to
purchase nails, wires etc. The accused had visited his shop on
01/10/2022. He had purchased insecticide meant for killing bed bugs.
154. In cross-examination, PW-9 stated that he had not issued to
accused, the bill for selling powder meant to kill bed bugs and had not
maintained any entry about it with him.
155. The accused is the resident of the same locality where PW-9
Satish runs hardware shop. There is no suggestion from defence that he
has not identified accused or he does not know the accused. There is also
no reason brought on record as to why he would depose falsely against
the accused, therefore, in these circumstances, just because the bills are
not placed on record, it cannot be said that the witness is deposing false.
The prosecution has proved that the accused before the incident of
October 2022, purchased bug killer powder from PW-9 Satish Nipane in
Judgment 69 CONF-2-2024-F.odt
order to give it to the victim girl for creating a false story against the
discharged person.
156. The prosecution also relied on photographs of suicide notes
found in the accused's mobile phone, recorded to be from October 2022,
i.e. before the incident of hanging. However, we are not placing reliance
on those photographs obtained from the mobile phone of the accused for
the reasons recorded while discarding the evidence of photographs.
157. Referring to the suicide notes, PW-1 deposed that her father
used to compel the victim girl to write on the pieces of paper.
158. To prove the suicide notes, prosecution has examined PW-23-
Shivaji Virkar, who is handwriting expert. He examined five suicide notes
written by victim girl with specimen natural handwriting. The original
notes were marked as Q1 to Q9 and two notebooks were containing
natural handwriting of victim girl. He marked it as N12 and 75 in green.
Then he carried out examination with the scientific equipment and he
came to the conclusion that red encircled writing marked Exh. Q1 to Q9
compared with red encircled writing marked Exh. N12 and N 75
revealed similarities in the writing habit indicating towards common
authorship. Accordingly, he has given his opinion at Exh. 203 and the
Judgment 70 CONF-2-2024-F.odt
reasons for reaching such conclusion at Exh. 204. No such material is
brought on record to disbelieve his evidence in the cross-examination.
Therefore, it can be said that the suicide notes sent for examination, were
in the handwriting of victim girl.
159. Further the evidence PW-4 Nilkanth shows that at the time of
the incident of poisoning, when he reached the house of the accused, the
accused had shown him the bottle of poison and the suicide note. At that
time the accused informed him that the victim girl had consumed poison
and she has been vomiting since then. However, the accused had not
taken the girl to the hospital till the morning. The victim girl in the
morning had called him to her house and then he took the victim girl to
the hospital.
160. Considering the cumulative evidence, i.e., the forcible
administration of poison, delayed medical care, false narrative coerced
from the victim, procurement of poison, and preparation of suicide notes,
the prosecution has successfully established, beyond reasonable doubt,
that the accused attempted to kill the victim. The intention to cause her
death can be inferred from his conduct, supported by medical and
circumstantial evidence. Accordingly, the ingredients of Section 307 IPC
stand proved.
Judgment 71 CONF-2-2024-F.odt
161. It is the case of the prosecution that the discharged person,
Kaushalya, was the accused's second wife. Her father owned agricultural
land that was soon to be sold. The accused allegedly demanded a portion
of that property and physically assaulted Kaushalya to pressurize her. As a
result, she separated from him. The prosecution contends that, to falsely
trap Kaushalya and her family, the accused devised a plan to murder the
victim girl so that fabricated evidence could be created against the
discharged persons.
162. To substantiate the allegation of fabricated implication, the
prosecution examined discharged persons Santosh Piparde and his
daughter, Aarti Piparde.
163. PW-2 Santosh deposed that the accused performed marriage
with Kaushalya 1 ½ years prior to the incident. It was not the first
marriage of Kaushalya. The accused had three children one of them was
the victim. The accused, his children and Kaushalya used to go home in
his absence as Kaushalya had performed 2-3 marriages. He did not use to
allow her to come home in his absence. His father has a field in Muktai,
Baitul. The said field was in the name of his father and three brothers
and one sister. The same was put for sale. He states that the accused used
to beat Kaushalya to get share in the money received after selling the
Judgment 72 CONF-2-2024-F.odt
field. Kaushalya after beaten by the accused some times used to stay in
orphanage or sometime she used to stay anywhere.
164. He further narrates the incidence when the victim girl
consumed poison in October 2022. He deposed that in the second week
of October 2022, he received a phone call in the night from some CID
Madam. She told him that the victim girl has consumed poison, her
condition was serious and she asked him to immediately go to Mayo
Hospital. When he reached half way he again made a phone call to CID
Madam, whereupon she told him that her duty hours are over and asked
him to come on the next day. On it, he requested her to meet him for five
minutes, then she called him near Daga Hospital on Central Avenue
where the madam met with him. She told that the condition of the victim
girl was serious and if anything happened to her he would get implicated.
She told that the victim girl told that he had molested her and that he was
going to take her to Gujarat and sell her off and hence, he would get
implicated in the case and further asked him to pray for her recovery. Her
name was being displayed as CID Ashwini in his phone screen. He
further states that later on he came to know that CID madam was
accused's sister in law (wife's sister) (absconding accused).
Judgment 73 CONF-2-2024-F.odt
165. In cross-examination, PW-2 states that he did not share cordial
relations with his sister and he never went to the house of the accused.
He denied that at the instance of Kaushalya he demanded share in the
field of his father and also denied that he pressurized to the victim to
marry with him. He denied that he committed rape on the victim girl and
therefore, she had committed suicide by consuming poison. He denied
that the victim girl committed suicide under pressure from him and his
sister.
166. The defense could not demolish the evidence of PW-2 during
the cross-examination. He has deposed that the accused used to beat
Kaushalya so as to receive a share in the money after the land is sold by
her father. However, this fact is missing from his statement under Section
161 of CrPC. The defence has duly proved this omission. Therefore,
evidence of PW-2 Santosh cannot be accepted to the extent that accused
wants to implicate discharged person to get share in the amount of
aftersale agricultural land.
167. In fact, Kaushalya could have helped the prosecution by stating
the true facts as to why accused wanted to implicate her and her family in
the crime. In this regard, the evidence of PW-25 shows that after
Kaushalya was discharged from this crime and after her release from jail
her whereabouts are not known. Kaushalya's mobile was seized and was
Judgment 74 CONF-2-2024-F.odt
sent to C.A. and no further details about Kaushalya were found out.
Therefore she could not record statement of Kaushalya.
168. Another witness is PW-10 Aarti Piparde, who is a discharged
accused and daughter of the discharged accused Santosh. She deposed
that her parents were not on talking terms with the accused, and her aunt
(father's sister). The victim girl, victim girl's sister 'N', victim girl's
brother 'G', the accused and Kaushalya Aatya (father's sister) used to visit
her house to meet her grandparents in absence of her parents. Her father
never used to visit the accused. Then she narrates the incidence of phone
call received by her father from one CID Police after the victim consumed
poison. She deposed that in the second week of October 2022, there was
a phone call on her father's mobile phone. It appeared as 'CID Police' on
Truecaller. She saved the number on her father's mobile phone. One lady
told her father that she was CID Police and the victim girl had consumed
poison. She said that her father was responsible for the same. She further
told that the victim girl had given such statement and his father would
have to come to Mayo Hospital. Her parents got frightened and visited
Mayo Hospital. There they met the said lady who was CID police. At that
time she told her parents that her father was responsible for consumption
of poison by the victim girl and that if she survives it would be fine or else
her father would be implicated in the case.
Judgment 75 CONF-2-2024-F.odt
169. In the cross-examination, nothing is brought on record contrary
to the oral evidence of PW-10 that her father never used to visit the
accused and Kaushalya used to visit her house to meet her grandparents
in absence of her parents.
170. The defence could not bring out anything in the cross-
examination to show any involvement of the discharged persons in the
present crime.
171. The record contains strong, reliable evidence establishing that
the discharged persons were falsely implicated. The main circumstances,
as noted by the learned Special Court, are as follows: -
a) PW 1 N deposed that accused wanted to take photographs of victim
girl of the execution of suicide to deceive Santosh Piparde.
b) The statement of victim girl (Exh.74) while she was admitted in
Mayo Hospital shows allegations against Santosh Piparde that she
consumed poison because of him. The said statement was recorded in
presence of accused. His thumb impression is on the statement.
c) PW 25 Chanda Dandawate and PW 22 Dr. Pathe proved that suicide
notes were of the month of October, 2022.
d) All the suicide notes proved by the prosecution contains the
allegations against discharged person.
Judgment 76 CONF-2-2024-F.odt
e) PW 1 N proved that accused used to prepare suicide notes from
victim girl.
f) The photographs Exh.29 to 31, Exh 37, Exh 22 and Exh 81 taken by
PW 1 N and found in the mobile of accused do not show suicide
notes on spot. According to PW 1 N, accused after the death of
victim girl plotted suicide notes on the spot.
g) Absconding accused Ashwini lodged report against discharged person
and accused Guddu let the police act upon the report.
h) All the discharged person were arrested by the police in the present
crime on the basis of report lodged by Ashwini.'
172. The above circumstances show that there has been an attempt
by the accused to implicate the discharged accused falsely.
173. PW-4 Nilkanth, in his oral testimony, has narrated an incident
linked to the accused's habit of implicating others. PW-4 deposed that
two years after Aarti's death, accused with his children, had come to him.
At that time, he got smell of diesel. At that time, he found accused and
his all the three children smeared with diesel. When he asked him as to
what had happened, he told that while they were coming from near the
railway track, one tractor driver poured diesel on them and they all fled
when he was igniting. PW-4 took them to Police Station. At that time,
accused had lodged report with the Police Station. When the Police made
Judgment 77 CONF-2-2024-F.odt
enquiry, it revealed that the said report was false. The accused had one
wife before Aarti and he attempted to deceive her relatives. At that time,
PW-4 had scolded him. After Aarti's death, the accused performed
marriage with a woman named Kaushalya. The accused used to always
beat Kaushalya and his all the three children.
174. The defense could not bring anything in cross-examination to
discredit the testimony of PW-4.
175. PW-22 Dr. Prajakta Pathe, Scientific Officer in RFSL, Cyber
Department, deposed that the police have submitted one panchanama
relating to mobile verification and extraction of data of the accused and
daughter of the discharged accused Santosh Piparde. As Kaushalya was
not returning to house, therefore Guddu Razak himself put bandage on
his legs and hands and was hanging himself. Such photograph was sent to
Aarti Santosh Piparde. During PW-22's analysis, she found one of such
screenshot (Exh.171/17) from the whatsapp of the accused. There were
also some photographs relating to the medical receipts and photos
regarding consumption of poison by/to Mahi Razak. They are at
Exh.171/3 to 171/9. She also found some audios related to the present
case. The names of the audio files are Samki Jaenge 2022-04-30 21-02-
44.m4a. In this audio file Guddu Razak is speaking to someone else and
Judgment 78 CONF-2-2024-F.odt
telling that he would be committing suicide. It is of dated 30.04.2022.
The another audio file is in the name of New recording 4.m4a. According
to PW-22, this audio is regarding the children are going to brought
Kaushalya from the hostel. It is of 12.09.2022. The third recording is in
the name of Neeta Teacher, 2022-09-12 14-03-37.m4a. In this video
Guddu Razak is speaking to teacher of hostel and telling her that he is not
well. The blood is oozing from his mouth and someone has played black
magic on him, and Kaushalya is the only person who can recover him. He
also stated that someone has thrown lemon in the courtyard of his house.
The photographs related to the same are at Exh.171/13 and 171/14. The
date of this recording is 12.09.2022.
176. Although there is no reason to disbelieve the testimony of PW-
22, the above-referred material obtained from the mobile of the accused
cannot be considered as evidence because the prosecution failed to
establish the chain of custody of the mobile phone of the accused and
because of the other reasons which have been discussed above while
discarding the evidence of photographs.
177. It is a settled principle of criminal law that the prosecution must
prove its case beyond reasonable doubt. In this matter, the prosecution
has convincingly demonstrated that the accused tried to falsely implicate
Judgment 79 CONF-2-2024-F.odt
the discharged persons, though it has been unable to establish the precise
reason as to why the accused wanted to do so. Earlier incidents of similar
behaviour show a tendency on the part of the accused to frame others
falsely. The evidence firmly establishes that the accused intended to
falsely implicate these persons and thereby reveals the motive and
intention behind the victim girl's murder.
178. So far as the case of the prosecution regarding conspiracy in
between accused and absconding accused Ashwini is concerned, the
prosecution is relying on the evidence of PW-4 Nilkanth who is the first
person who went to the spot. He states that after police came on the spot,
sister-in-law of accused Ashwini came there. She started shouting and
saying that Santosh has killed victim girl. Ashwini told the accused to go
to Mayo Hospital and she will handle the police. There is no such denial
to the above said evidence in the cross examination. So the evidence of
PW-4 Nilkanth on this point can be safely accepted.
179. The prosecution has brought on record CDR's Exh.263 of the
mobile phone of accused. During the period of 10.10.2022 to 06.11.2022
there were 27 outgoing calls and 30 incoming calls found in the CDRs in
between accused and absconding accused Ashwini. This is a circumstance
which shows their close association and is an important evidence of
conspiracy.
Judgment 80 CONF-2-2024-F.odt
180. There is another circumstance on which prosecution is relying
to prove the case of conspiracy. PW-2 Santosh and his daughter PW-10
Aarti both have stated that in October, 2022 Santosh received call from
CID Ashwini. She informed him that victim girl has consumed poison
and admitted in the hospital. So PW-2 and his wife met Ashwini near
Daga hospital. That time Ashwini told him that victim's condition is
serious and victim girl informed the police that PW-2 Santosh has
harassed her. In order to prove this circumstance, the prosecution has
proved the calls in between Santosh and Ashwini by placing CDRs of
mobile numbers of Santosh and Ashwini of the month of October, 2022.
The relevant entries in the CDRs of Santosh are marked as Exh.268
collectively which show five calls between absconding accused Ashwini
and PW-2 Santosh on dt. 10.10.2022.
181. One another circumstance which goes against the accused to
prove the conspiracy is in FIR Exh.124 lodged by Ashwini against
discharged persons wherein there is reference of incident of taking poison
by victim girl. So all the circumstances collectively establish that accused
and Ashwini committed conspiracy to falsely implicate discharged person
and thereby committed murder of the victim girl.
Judgment 81 CONF-2-2024-F.odt
182. From the above referred discussions, we are of the opinion that
the learned trial Court has rightly held the accused guilty as under :
a) That the accused, with the intent to create a false scene of
suicide by hanging so as to falsely implicate discharged accused
Nos. 1 to 4, compelled his elder daughter (the victim), aged 16
years, to stand on a stool and tie a rope around her neck.
Thereafter, he intentionally kicked the stool and forcibly
released her hand from the metal rod she was holding for
support to save herself, thereby causing her death and
committing an offence punishable under Section 302 of the
Indian Penal Code.
b) That on 10/10/2022, during night hours at his residence, the
accused brought poison and compelled his elder daughter (the
deceased victim) to consume it. By doing so, with such
intention and under such circumstances that, if death had
ensued, he would have been guilty of murder, the accused
committed an act amounting to an attempt to cause her death
and is therefore liable for an offence punishable under Section
307 of the Indian Penal Code.
c) That the accused habitually and mercilessly beat his younger
daughter, N, and scorched her body with matchsticks, thereby
voluntarily causing hurt to her and committing an offence
punishable under Section 323 of the Indian Penal Code.
d) That the accused gave a false report through one Ashwini
Durgaprasad Deshbhratar to Shri Raut, PSI, Police Station
Kalamna, a public servant, alleging that his daughter had
Judgment 82 CONF-2-2024-F.odt
committed suicide by hanging due to the actions of discharged
accused Nos.1 to 4. Knowing the said report to be false and
intending thereby to cause the said public servant to arrest
those persons in a false crime, which he would not have done
had he known the true facts, the accused thereby committed an
offence punishable under Section 182 of the Indian Penal Code.
e) That the accused forcibly made his minor daughter write false
suicide notes/letters with the intention of falsely implicating
discharged accused Nos.1 to 4. He thereafter placed those
fabricated notes near the deceased's body to mislead the
investigating authorities into believing that the deceased had
committed suicide due to the acts of those persons, thereby
committing an offence punishable under Section 193 of the
Indian Penal Code.
f) That the accused intentionally placed fabricated false evidence,
namely suicide notes, on record with the intent of causing
discharged accused Nos.1 to 4 to be convicted for an offence
punishable under Section 305 of the Indian Penal Code, which
carries punishment of death, life imprisonment, or
imprisonment up to ten years, and thereby committed an
offence punishable under Section 194 of the Indian Penal Code.
g) That the accused corruptly used the fabricated and false suicide
notes as genuine evidence, knowing them to be false, with the
intention of falsely implicating discharged accused Nos. 1 to 4,
thereby committing an offence punishable under Section 196 of
the Indian Penal Code.
Judgment 83 CONF-2-2024-F.odt
h) That the accused, knowing fully well that he had committed the
murder of his daughter, nevertheless lodged a false report
through Ashwini Durgaprasad Deshbhratar with the police
officials of P.S. Kalamna, alleging that discharged accused Nos.
1 to 4 had abetted his daughter's suicide. Knowing such
information to be false and intending to mislead the police, he
thereby committed an offence punishable under Section 203 of
the Indian Penal Code.
i) That prior to 06/11/2022, while residing with his children and
having actual charge and control over them as their father, the
accused abused, assaulted, and mercilessly beat them, scorched
parts of their bodies with matchsticks, caused physical injuries,
and neglected them in a manner likely to cause unnecessary
mental and physical suffering. By such acts, he committed an
offence punishable under Section 75 of the Juvenile Justice
(Care and Protection of Children) Act, 2015.
j) That prior to 10/10/2022 and up to 06/11/2022 at Nagpur, the
accused entered into a criminal conspiracy with absconding
accused Ashwini Deshbhratar to commit the murder of his own
daughter (the victim) and to falsely implicate discharged
accused Nos.1 to 4. Pursuant to this conspiracy, in October
2022, both accused forced the victim to prepare false suicide
notes. On 10/10/2022, the accused administered poison to the
victim intending to kill her; however, she survived.
Subsequently, on 06/11/2022 at about 02:30a.m., he deceitfully
induced her to pose for staged photographs of suicide,
compelled her to stand on a stool, tied a rope around her neck,
Judgment 84 CONF-2-2024-F.odt
and kicked the stool, thereby causing her death. He then placed
the fabricated suicide notes near her body and lodged a false
report through Ashwini Deshbhratar against discharged accused
Nos. 1 to 4. By these acts, the accused conspired with the said
absconding accused to commit murder and thus committed an
offence punishable under Section 120-B of the Indian Penal
Code.
183. In the circumstances, we pass the following order :
i) The Confirmation Case No.02 of 2024 is dismissed.
ii) The Criminal Appeal No.322 of 2024 is partly allowed.
iii) The impugned judgment and order dated 21/05/2024 passed
by learned Special Court (POCSO) District Judge-3 and
Additional Sessions Judge, Nagpur in Special Criminal Case
No.61 of 2023, insofar as, it convicts the accused for the
offence punishable under Section 302 of the Indian Penal
Code for causing death of his deceased daughter, stands
confirmed. However, sentence of death awarded to the accused
is commuted to imprisonment of life. The sentence of fine
awarded is however, maintained.
iv) The conviction and sentence awarded to the accused vide said
judgment and order for the offences punishable under Sections
307, 323, 182, 193, 194, 196, 203, 120B of the Indian Penal
Code and under Section 75 of the Juvenile Justice (Care and
Protection of Children) Act, 2015, is maintained.
Judgment 85 CONF-2-2024-F.odt
v) The conviction and sentence for the offence punishable under
Section 376(2)(f) and 376(2)(n) of the Indian Penal Code and
Section 6 of the Protection of Children from Sexual Offences
Act, 2012 is hereby set aside.
The Confirmation Case No.02/2024 and Criminal Appeal
No.322 of 2024 are disposed of accordingly. Pending application(s) if
any, shall stand disposed of.
( PRAVIN S. PATIL, J ) ( ANIL S. KILOR, J )
RRaut..
Signed by: Raut (RR)
Designation: PS To Honourable Judge
Date: 11/11/2025 15:27:11
