1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR [CASE NUMBER] With [CASE NUMBER] The [ENTITY], through Police Station Officer, Police Station Kholapur. Appellant Versus [ENTITY], aged about 28 years, r/o Parlam, Tq. Bhatkuli, District Amravati Respondent Smt. [ENTITY] with Shri [ENTITY], Additional Public Prosecutors for Appellant. Shri [ENTITY], Advocate for Respondent. [CASE NUMBER] In [CASE NUMBER] [ENTITY], Aged about 28 years, Occupation Labourer, r/o Parlam, Tq. Bhatkuli, District Amravati (In Jail). Appellant Downloaded on - 09/06/2013 14:27:18 2 Versus The [ENTITY], through Police Station Officer, Kholapur, District Amravati. Respondent Shri [ENTITY], Advocate for Appellant. Smt. [ENTITY] with Shri [ENTITY],Additional Public Prosecutors for Respondent. CORAM : [ENTITY] & [ENTITY], JJ.
Reserved on : 19-3-2009 Pronounced on :
Judgment (Per [ENTITY], J.) :
1. This judgment disposes of [CASE NUMBER] as also [CASE NUMBER] arising out of the judgment of the learned Additional Sessions Judge, Amravati, in [CASE NUMBER] before him, whereby the learned Judge convicted accused [ENTITY] of offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT]. The learned Additional Sessions Judge sentenced the appellant to death for offence punishable under [SECTION] of the [ACT], to life imprisonment and fine of Rs.1,000/- for offence punishable under [SECTION], and to rigorous imprisonment for ten years and fine of Rs.1,000/- for offence punishable under [SECTION] of the [ACT].
2. Facts, which led to prosecution of the appellant are as under :
The appellant is a cousin of complainant PW 12 [ENTITY], resident of Village Asara.
[ENTITY] and his wife PW 2 [ENTITY] had a daughter by name [ENTITY], who was three years old at the time of incident on 2-3-2007. The appellant visited the house of [ENTITY] and [ENTITY] in order to meet [ENTITY]'s father [ENTITY], who was ailing. After having a cup of tea, the appellant left and returned again at about 6 p.m. He took [ENTITY] towards S.T. Stand saying that he would purchase biscuits for her. Neither the appellant nor [ENTITY] returned home. [ENTITY] was not at home and upon his return at about 8 p.m., [ENTITY] informed him that a visitor, whose name she did not know, had taken daughter [ENTITY] and had not returned. [ENTITY]'s enquiries led to ascertainment of identity of the visitor as appellant [ENTITY].
3. The villagers helped in search of [ENTITY] as well as the appellant and even allegedly visited the appellant's village. Next morning, dead body of [ENTITY] was noticed by people in the field of one [ENTITY]. On a report by [ENTITY], an offence was registered on 3-3-2007 and investigation commenced.
4. In course of investigation, after performing inquest, police caused dead body of [ENTITY] to be sent for post mortem examination, which revealed that [ENTITY] had been raped as well as sodomized and had died due to asphyxia. A number of injuries were observed on her person. The police caused [ENTITY]'s clothes as well as other incriminating articles to be seized. They performed panchanama of spot and recorded statements of witnesses.
5. Search for the accused was launched and eventually on 9-4-2007, the appellant was arrested by Amravati Police under [SECTION] of the [ACT]. Thereafter his custody was made over to the Investigating Officer from Police Station Kholapur. The Investigating Officer caused the appellant to be medically examined and also caused necessary samples to be taken. He forwarded the property seized to the Forensic Science Laboratory. On completion of investigation, chargesheet was sent up.
6. Upon commitment of the case to the Court of Session, the learned Additional Sessions Judge charged the appellant of offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT]. Since the appellant pleaded not guilty, he was put on trial, at which the prosecution examined in all 13 witnesses. The defence of the accused, as appearing from the cross-examination of the prosecution witnesses and statement under [SECTION] of the [ACT], is that of denial. Upon consideration of the evidence in light of defence of denial raised, the learned Additional Sessions Judge held the appellant guilty of offences charged and convicted and sentenced him as aforementioned.
The learned Additional Sessions Judge directed the record to be placed before this Court for confirmation of death sentence awarded by him.
8. The appellant also preferred an appeal taking exception to his convictions and sentences imposed upon him.
9. We have heard Smt. [ENTITY], the learned Additional Public Prosecutor for the State, and Shri [ENTITY], the learned Advocate for the convict. With the help of both the learned counsel, we have gone through the entire record.
10. The case rests solely on circumstantial evidence, since there are no eye-witnesses to the incident. The defence had admitted inquest panchanama, panchanama of spot, seizure of articles from the spot, notes of post mortem examination and documents pertaining to sending the property to the Forensic Science Laboratory, as well as the report received from the Laboratory, requisitions to Medical Officers and arrest memoranda.
11. It may be seen from the inquest panchanama, which was performed on the morning of 3-3-2007, that naked body of 3-year-old child was lying in the field with her clothes kept on her body. She had a number of injuries on her face, chest, back, arms and legs. There was obvious evidence of rape as well as sodomy.
Her cheeks and nipples bore bite marks.
12. The notes of post mortem examination at Exhibit 17 show that 3-year-old child had a congested face with contused abrasions all over, mud was present in her mouth as well as on her lips. She had injuries to her genitals as described in para 15 of the notes of post mortem examination, which read as under:
External vaginal swelling present. Vaginal wall lacerated, wound extending from labia majora to inside vaginal canal in lower 1/3rd on both side 1 " x 1/4"
x muscle deep. Stains of semen present on inner side of right thigh. [ENTITY] absent. One finger easily pass. Swelling present on anal region. Vaginal swab preserved bottle No.6. Vaginal slide preserved sample No.7.
In addition, the following surface wounds have been noted in column No.17 of the notes of post mortem examination :
Multiple abrasions with contusions present on body of face, chest, back and both shoulders and knees anteriorly. Bite mark on chest left side around nipple eliphical with diameters 1 " x 1 ".
The Medical Officers opined that the injuries were ante mortem and certified that the cause of death was due to rape and asphyxia.
13. The Medical Officer had taken various samples from the victim's person and had handed them over to the police. The same were seized vide Exhibit 13. Upon arrest of the accused, he had also been sent for medical examination conducted by PW 9 Dr. [ENTITY], who had taken blood, semen and pubic hair samples of the appellant and handed them over vide Exhibit 57 to the police. The same were seized vide Exhibit 15. All these articles were sent to the Forensic Science Laboratory vide Exhibits 19 and 20 in order to enable the Laboratory to answer queries raised in Exhibit 21. The reports of the Laboratory are at Exhibits 76, 77 and 78. As far as the reports in respect of appellant's samples of semen and blood are concerned, they were inconclusive, as may be seen from Exhibit 76. His clothes also did not bear any blood or semen stains as may be seen from report at Exhibit 78. The report in respect of victim's clothing and other samples at Exhibit 77 shows that her clothes had stains of blood group 'O', which was her own blood group. However, neither semen nor spermatozoa were detected on other exhibits including vaginal swab and possibly scraping of semen stain found by the Medical Officer on the thigh of the victim. Thus the reports from the Laboratory are unhelpful to connect the appellant to the crime.
14. PW 2 [ENTITY] is victim's mother. She stated that the appellant had come to her house about six months prior to the incident. She stated that on the day of incident, which happened to be festival of Holi, the appellant had come to her house. After taking tea, the appellant left her house at about 3 p.m. and returned again at 6 p.m. [ENTITY] was playing in front of the house. The appellant told her that he would purchase biscuits for [ENTITY] and picked [ENTITY] up in his arms and took her towards S.T. Stand. Since [ENTITY] did not return for a long time, she went to the S.T. Stand, but could not find her. When her husband returned home, she narrated the incident to him. She stated that she was not knowing the name of the accused, when the accused had come to her house and that she learnt his name from her husband on the next day. She admitted in cross-examination that before the incident, she was not knowing the appellant. She also admitted that she had not been called at the Police Station for the purpose of identifying the appellant. It is not in dispute that no test identification parade was ever held.
She could not assign any reason for the fact that her police statement did not mention that the appellant had come to her house six months prior to the incident, as also the description of the clothes, which the appellant was wearing when he came on the incidental day. She denied the suggestion that the appellant had not at all come to her house. She also denied that her husband had not told her the name of the accused or that her husband could not have told her the name of the accused as there were disputes between her and her husband. The disputes seem to have arisen subsequently and have no bearing on the facts of the case.
15. PW 3 [ENTITY] is victim's cousin, i.e. niece of [ENTITY] and [ENTITY]. She stated that [ENTITY]'s house is adjacent to her own house. On 2-3-2007 at about 3.30 to 4 p.m., the appellant came to the house of [ENTITY], i.e. the father of [ENTITY].
[ENTITY] asked PW 3 [ENTITY] to serve tea to the accused and accordingly she served tea. The appellant left saying that he would come after seeing his friends. The appellant returned again at 6 p.m. [ENTITY] was playing in the courtyard. The appellant told PW 2 [ENTITY] that he would purchase a packet of biscuits for [ENTITY] and took [ENTITY] with him for this purpose. [ENTITY] did not return thereafter. She stated that [ENTITY] searched for [ENTITY], but could not find her. Search for [ENTITY] by others in the night was also not fruitful and on the next day, the dead body of [ENTITY] was found in the field of [ENTITY]. PW 3 [ENTITY] also stated that she knew the accused, since he had visited to her house about six months prior to the incident to meet [ENTITY]. At that time, the appellant's clothes were wet and, therefore, at the instance of [ENTITY], she gave dry clothes of her brother [ENTITY] to the appellant.
16. The statement of PW 3 [ENTITY] seems to have been recorded one month after the incident. Her cross-examination also reveals that she had not stated before the police that the appellant had come to her house about six months prior to the incident or that she had given her brother's clothes to the appellant for changing. She too denied the suggestion that the appellant had not at all come on the incidental day or had not picked up [ENTITY].
17. The learned counsel for the appellant submitted that the identification of the appellant as the person, who picked up [ENTITY] on the incidental day by these two witnesses, is based upon their being told by PW 12 [ENTITY] that the person, who had come was the appellant. PW 12 [ENTITY] could fix the identity of the visitor as the accused on the basis of the description of the visitor by these two witnesses as one, who had visited their house six months prior to the incident. The learned counsel submitted that this story of appellant having visited the house of these witnesses about six months before the incident is itself an improvement and not to be found in the police statement of these two witnesses.
18. PW 13 Investigating Officer [ENTITY] has categorically stated that neither PW 2 [ENTITY] nor PW 3 [ENTITY] had stated before him about any such visit by the appellant to their house six months prior to the incident. The learned counsel for the appellant submitted that if this part of the version of [ENTITY] and [ENTITY] is excluded, there would be no occasion for PW 12 [ENTITY] to be able to locate the identity of the visitor, who took [ENTITY] away as the appellant. According to the learned counsel, in the absence of test identification parade, the learned Trial Judge was thoroughly unjustified in accepting the word of PW 2 [ENTITY] and PW 3 [ENTITY] as to the identity of the appellant, which had its origin in improvement. It would have been ideal if the Investigating Officer had arranged for identification parade.
However, as pointed out by the learned APP, absence of a parade is not fatal in this case, because the appellant has been named in the FIR.
19. The learned Additional Public Prosecutor submitted that the omission, which are not contradictions and merely amount to improvements in the original story, are not significant.
Merely because the witnesses had failed to state before the police that the visitor had visited to the house six months prior to the incident, this version cannot be discarded. She submitted that rather than looking at a piece of evidence in isolation and indulging in "tinkering with burden of proof and chopping little logic", it may be useful to take a comprehensive view of the entire evidence that has been unfolded.
20. Apart from PW 2 [ENTITY] and PW 3 [ENTITY], PW 4 [ENTITY], an auto rickshaw driver and a neighbour of PW 12 [ENTITY], and PW 7 [ENTITY] had also seen the appellant with the victim on the incidental day at a time which corresponds with that deposed to by PW 2 [ENTITY] and PW 3 [ENTITY]. PW 4 [ENTITY] stated that on 2-3-2007 at about 6 p.m. when he was at S.T. Stand of Village Asra, he had seen the appellant along with victim [ENTITY] in the hotel of [ENTITY], which is situated at the S.T. Stand. [ENTITY] was on the lap of the appellant and the appellant had purchased a packet of biscuits for her. He also stated that the appellant then left (presumably with [ENTITY]) by the road going to Amravati. He stated that after half an hour one [ENTITY] came and told him that the accused had taken the daughter of PW 12 [ENTITY]. He then claims to have searched for the victim, but could not find the victim as well as the appellant. He stated that he learnt the name of the appellant from [ENTITY]'s grandfather [ENTITY]. This is probable, because the appellant had allegedly come to see [ENTITY]. Therefore [ENTITY] was bound to know the name of the appellant. PW 4 [ENTITY] then states that he and others went in search of the appellant at Village Parlam on the basis of the information given by the victim's grandfather. He stated that he returned to the village on the same night. Next morning, again he had visited village Parlam and when he was returning, he came to know that the dead body of [ENTITY] was found in the field of Mohod.
21. Apart from being examined by the police, the Investigating Officer had also caused statement of this witness recorded under [SECTION] of the [ACT] before the Magistrate, which the witness has admitted and proved at Exhibit 40. In cross-examination, even this witness had admitted that no test identification parade was held. He could not assign any reason for the omission in his statement that he had seen the appellant along with victim [ENTITY] in the hotel of [ENTITY], which omission has been duly proved by PW 13 [ENTITY]. However, he had stated before police as well as before the Magistrate that he had seen victim with appellant at S.T. Stand. He could not likewise assign any reason for the omission in his statement that the victim's grandfather [ENTITY] had told him the name of the appellant, which omission too was duly proved by PW 13 [ENTITY].
22. The learned counsel for the appellant sought to falsify the evidence of pW 4 [ENTITY] by referring to his statement recorded by PW 8 Special Judicial Magistrate Shri [ENTITY]. The statement at Exhibit 40 too does not contain a reference to [ENTITY]'s grandfather [ENTITY] telling the name of the appellant to PW 4 [ENTITY]. PW 8 Shri [ENTITY] categorically stated in cross-examination that the witness had not stated before him that the name of the accused or the name of the village of the accused was conveyed to him by [ENTITY]. On the other hand, the statement at Exhibit 40 would show that PW 4 [ENTITY] came to know the name of the appellant from PW 12 [ENTITY].
23. PW 4 [ENTITY] denied the suggestion that he was depositing falsely that he had seen the appellant along with victim on the incidental day. The learned counsel for the appellant submitted that if the evidence of PW 4 [ENTITY] that he learnt about the identity of miscreant as the appellant from the victim's grandfather is excluded, the whole testimony of PW 4 [ENTITY] would become doubtful as to the identity of the miscreant.
24. PW 7 [ENTITY] is a neighbour of [ENTITY] and [ENTITY], the victim's parents. He stated that on 2-3-2007, he was coming to his house from S.T. Stand, Asara and saw the appellant standing in the house of [ENTITY] with [ENTITY] in his arms. He stated that he saw the appellant going towards S.T. Stand along with [ENTITY]. He stated that thereafter [ENTITY] asked him to search for [ENTITY], since she had not come back and he, therefore searched for her. On the next day, he came to know that [ENTITY]'s dead body was found in the field of [ENTITY]. He stated in cross-examination that police had made enquiries with him on 3-3-2007 and not thereafter. He stated that after the arrest of the accused, the villagers had gone to see the accused and that he had also gone. He admitted that the photograph of the accused was published in the newspaper, but he denied that he had not seen the appellant on the incidental day along with the victim or that he was depositing falsely to that effect.
25. PW 12 [ENTITY], the victim's father, stated that upon his return, his wife had informed him that the appellant had taken their daughter and had not come back. He stated that he went with two persons to Parlam in search of the appellant and found that the appellant was not in his house. Next morning, when he was proceeding to Police Station Kholapur to give a report, he found people gathered in the field of [ENTITY], where the dead body of his daughter was lying. He proved his reports at Exhibits 71 and 72.
26. As rightly pointed out by the learned Additional Public Prosecutor, it is not that PWs 2, 3 and 4 had not stated that the victim had been taken away by a guest. The question is only about fixing the identity of that guest. She pointed out that apart from these three witnesses, PW 7 [ENTITY] had also stated that he had seen the victim with the appellant in the house of PW 2 [ENTITY] herself and then had again seen the appellant and the victim going towards the S.T. Stand. There are no omissions in his statement.
27. The learned counsel for the appellant contended that the identification of the appellant as the person, who had taken victim with him on the incidental day by PW 7 [ENTITY], cannot be believed by PW 7 [ENTITY] cannot be believed because PW 7 admits that there was discussion in the village that [ENTITY] had taken the girl and after arrest of the accused, he too had gone to see the accused, as also that he had seen photograph of the accused in the newspaper. Therefore, according to the learned counsel for the appellant, the identification of the appellant by PW 7 [ENTITY] is based on subsequent co-relation of the appellant with the incident upon appellant's arrest. This would not negate his word that he had seen victim with a stranger on the incidental evening.
28. The learned counsel for the appellant also submitted that if the appellant was indeed a cousin of PW 12 [ENTITY], then PW 2 [ENTITY] and PW 3 [ENTITY] would have certainly stated so.
They had only referred to the appellant as the guest - possibly a relation, but decidedly had not described him as cousin. He pointed out that in the statement under [SECTION] of the [ACT], the appellant had denied as false the claim of PW 12 [ENTITY] that the appellant was his cousin. The learned counsel submitted that no independent evidence has been brought on record to show that the appellant was indeed cousin of [ENTITY].
29. The contentions raised by the learned counsel for the appellant cannot be lightly brushed aside as worthless. All the same, as rightly submitted by the learned Additional Public Prosecutor, they have to be evaluated by reading the evidence as a whole and not in bits. She pointed out that if the miscreant was wrongly identified by PW 12 [ENTITY] as the appellant on the basis of wrong description given by PW 2 [ENTITY] and PW 3 [ENTITY], it would have been suggested to PW 12 [ENTITY] that he had wrongly identified the appellant as the person, who took away his daughter. The learned Additional Public Prosecutor pointed out that no reason is suggested as to why PW 12 [ENTITY] would wrongly identify the appellant as miscreant or give a report against the miscreant for such a gruesome offence. No enmity has been suggested in cross-examination or even in statement under [SECTION] of the [ACT]. Thus there was absolutely no reason for PW 12 [ENTITY] to name the appellant as the miscreant in the FIR on the very next day of the crime. PW 12 [ENTITY] would not name the appellant in the FIR without there being any strong reason and in the absence of any motive to falsely implicate the appellant, it must be taken that PW 12 [ENTITY] named the appellant because he bona fide believed the appellant to be a miscreant. This belief is fortified by the identification of the appellant by four witnesses, who saw the appellant along with the victim on the incidental evening. Had it been a case that [ENTITY] was wrong in inferring that the miscreant was the appellant, PW 2 [ENTITY] and PW 3 [ENTITY] would have decidedly pointed out that the appellant was not the miscreant, who had taken away deceased [ENTITY]. They would not be interested in allowing the real mischief monger to go scot free. Same holds good about identification of the appellant by PW 4 [ENTITY] and PW 7 [ENTITY]. These two witnesses too would have refused to identify the appellant as the miscreant whom they had seen in the company of the victim on the incidental day if the appellant was not the real miscreant.
30. It may also be noted that though PW [ENTITY]'s claim that the grandfather of [ENTITY] told him the name of the appellant as well as the name of his village is rendered doubtful by his having not stated so before the police officer, this in itself cannot lead to rejection of this statement as false. It may be just an improvement, but an improvement warranted by the fact that the police officer might have failed to seek from the witnesses the necessary details and might have failed to note them down carefully while recording statement under [SECTION] of the [ACT].
31. It need not be forgotton that even in the statement under [SECTION] at Exhibit 40, PW 4 [ENTITY] has stated that on the same evening on finding that [ENTITY]'s daughter was missing, he and many persons from the village started in search of the victim and he had even gone to village Parlam to which appellant [ENTITY] belongs. This part of the story is not pointed out to be an omission and there would be no reason for the witness to go in search of the victim at village Parlam of the accused just because he had a fancy for doing so. Therefore, as rightly contended by the learned Additional Public Prosecutor, viewed in totality, it would be clear that the identity of the appellant as the person who had taken the victim on the incidental evening was established even before PW 12 [ENTITY] came home. Therefore, the evidence of the four witnesses, who identified the appellant, cannot be discarded on the basis of the omissions in their police statements as well as statements under [SECTION] of the [ACT].
32. Though the learned counsel for the appellant submitted that these persons are interested witnesses, this contention has to be rejected since it is not shown that these witnesses have any interest in incriminating the appellant. They would be interested in bringing to book the real culprit.
33. The prosecution has also tendered evidence to show that the appellant had gone to victim's village on the incidental evening. PW 5 [ENTITY] stated that he owns agricultural land at Villages Khargodi and Nagthana in Murtizapur Taluka of Akola District (an adjacent Taluka). He stated that he maintains a register of labourers engaged by him for work in the field. He claims that the appellant came to him seeking work and disclosed his name as [ENTITY]. The appellant worked in his land from 23-12-2006 to 16-3-2007 on weekly wages of Rs.350/-. According to him, the appellant was not on duty on 2-3-2007. On that day, he had come to the witness in the morning and had demanded Rs.500/- for going to village Asra.
He stated that the appellant reported back on 3-3-2007 at 4 p.m. and from 4-3-2007 he continued to work for 4 - 5 days and then was again absent. On 16-3-2007, he demanded Rs.100/- from the witness and thereafter from 17-3-2007 he was absent. He stated that on 9-4-2007, the police had brought the appellant and then he learnt that the name of the appellant is [ENTITY] and not [ENTITY] as given to him. The witness stated that the register maintained by him was seized by the police vide panchanama at Exhibit 36. He proved the relevant entries in the register at Exhibit 44. The cross-examination reveals that the entries are not regularly kept in the register. Therefore, the evidentiary value of the register is not much. Even so it would just provide corroboration to the word of PW 5 [ENTITY]. He denied the suggestion that the appellant had never worked for him by giving his name as [ENTITY].
34. PW 6 [ENTITY], another landlord of Village Karajgaon, District Amravati, stated that on 21-3-2007 he received a telephone call from his [ENTITY] stating that one [ENTITY] wanted to offer his services and, therefore, he permitted [ENTITY] to engage said [ENTITY] on weekly salary of Rs.300/-. He claims to have seen the appellant working in his field as [ENTITY]. On 9-4-2007, the appellant demanded a sum of Rs.500/- from the witness, which he paid. On the same night, the police brought the accused to him. He too denied the suggestion in cross-examination that he had never engaged the appellant as [ENTITY] in his field. As rightly pointed out by the learned Additional Public Prosecutor, there is no reason for PW 5 [ENTITY] and PW 6 [ENTITY] to falsely state that the appellant had worked in their fields at the relevant periods. They have no relation with the victim's family. They are not from the same village. They are not shown to be on inimical terms with the appellant or not even alleged to be stock witnesses of the appellant. In view of this, the evidence of these two witnesses that the appellant was working as labourer in their fields at the relevant periods under different names cannot be discarded.
35. The learned counsel for the appellant submitted that the story that the appellant had left the field of PW 5 [ENTITY] on 2-3-2007 would be inconsistent with the prosecution version that the appellant had committed another similar crime on 1-3-2007 between 5 p.m. and 7 p.m. at Banosa in respect of which a chargesheet has been filed, copy whereof is at Exhibit 82. First, it has to be mentioned that the three chargesheets at Exhibits 80, 81 and 82 are irrelevant since the evidence of bad character of the appellant could have been given only if the appellant gave evidence of his good character in view of [SECTION] of the [ACT]. This evidence has been rightly excluded from consideration by the learned Trial Judge as a circumstance against the appellant. The contention of the learned counsel for the appellant that after committing offence on 1-3-2007 at 6 to 7 p.m. at Banosa, District Amravati, the appellant could not have come to Village Khargodi in Murtizapur Taluka of Amravati District in the morning on 2-3-2007, and could not have reached Village Asra where the incident relating to [ENTITY] took place in the evening, has to be rejected. It is not that the appellant would be obliged to walk all the distances. According to the learned counsel for the appellant, Village Banosa is about 40 kms from Village Asra. In view of several means of communication including public transport, which must be available, there could have been no difficulty in appellant's going from place to place. Since the appellant had not chosen to tender evidence about the impossibility of having been at the scene of offence on 2-3-2007, this contention has to be rejected.
36. PW 11 [ENTITY] stated that he wrote to the Revenue Authorities to get a map of the scene of offence prepared vide Exhibit 64 and also caused statements of witnesses to be recorded by PW 8 Special Judicial Magistrate Shri [ENTITY].
37. PW 13 [ENTITY] states that he had registered offence upon receipt of information at 9 a.m. on 3-3-2007. It seems that initial investigation was carried out by one PSI [ENTITY], who was not examined. He stated that the investigation was again handed over to him on 10-4-2007 when he arrested the accused. As has already been pointed out, the accused was arrested by Amravati Police under [SECTION] of the [ACT] on 9-4-2007 and he was formally arrested in the present crime by PW 13 [ENTITY] on 10-4-2007. PW 13 [ENTITY] then stated about various steps which he took in course of investigation.
38. The learned counsel for the appellant submitted that the prosecution has miserably failed to prove a chain of circumstances to bring home guilt of the appellant as mandated by various judgments. He relied on the judgments in Manikrao Nathusao Dhapade v. [ENTITY], reported in 2006(Supp.) Bom.C.R. 980, Bhagwan Charan Mate v. [ENTITY], reported at 2006(1) Crimes 305, and Shailesh Dharmaji Wahane v. [ENTITY], 2005(4) Mh.L.J. 758, rendered by one of us, to support his contention that while appreciating circumstantial evidence, it would not be open for a Court to go on explaining lacunae in the prosecution case in order to render a finding of guilt of the accused. We have carefully considered the three judgments, which are rendered on the facts peculiar to those cases. The question as to whether the evidence in a case inspires confidence of truthfulness or not would not be amenable to a judicial precedent and would have to be decided after considering the evidence tendered in that case in totality.
Therefore, these three judgments, on which the learned counsel for the appellant sought to rely, do not help the appellant in reducing the veracity or reliability of testimonies tendered in this case.
39. The learned counsel for the appellant also placed reliance on the judgment of the Apex Court in [ENTITY] v.
State of Orissa, reported in VI-1991(2) Crimes 268, where too the question was about complicity of the appellant in offence of rape and murder of five years old girl. The Court had observed that though the offences shocking, the gravity of the offence cannot by itself overweigh the requirements of legal proof. In para 7 of the judgment, the Court ruled that it was well settled that circumstantial evidence, in order to sustain the conviction, must satisfy three conditions, viz. (i) the circumstances from which an inference of guilt is sought to be drawn, must be congently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
40. The learned counsel also relied on a judgment of the Supreme Court in [ENTITY] v. State of Haryana, reported at 2008(15) Scale 366, which too was a case of rape and murder.
The three circumstances referred to in [ENTITY]'s case quoted above have also been reiterated in para 7 of the judgment in [ENTITY]'s case. In para 12, after referring to judgment of the Supreme Court in Sharad Birdhichand Sarda v. [ENTITY], reported at AIR 1984 SC 1622, the Court explained the requirement to prove the circumstances in the following words.
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
After considering the evidence tendered in the said case in light of these requirements, the Apex Court had set aside the conviction of the appellant therein. It is not necessary to go to the facts of the case or the evidence tendered therein since the facts would differ from case to case.
41. The learned counsel for the appellant submitted that the evidence tendered in the present case does not show that the circumstance of victim having been last seen together in the company of the appellant on which the prosecution heavily relies is cogently and firmly established in view of several loopholes.
We have already referred to the so-called loopholes in the foregoing discussion. No doubt, the deficiencies could have been avoided had the Investigating Officer examined the witnesses more searchingly. But that does not reduce the reliability of their evidence. Hence, it cannot be said that the circumstance is not cogently established.
42. The learned counsel next submitted that the prosecution has at worst only established that the victim was in the company of his client and that in itself would not be sufficient to conclude that the ghastly acts committed with the victim were authored by the appellant.
43. The learned Additional Public Prosecutor relied on a judgment of this Court in [ENTITY] v. Amit @ Ammu son of Gujanan Gandhi, reported at 2003 ALL MR (Cri) 710, where the Court was considering the similar confirmation reference arising out of rape and murder of an 11-year-old girl. The case rested on circumstantial evidence. The Court recounted principles of appreciation of circumstantial evidence in para 36 of its judgment and upon appreciation of evidence, found that among other things, the accused and the deceased were seen near deserted house in forest area at Koradi by two prosecution witnesses and that the deceased was in her school uniform. One of those witnesses spotted the dead body of the victim on the next day when he was grazing the cattle and, therefore, gave a report to the police. The accused therein was identified by a test identification parade. The Court held that the circumstances duly established the crime.
44. The learned Additional Public Prosecutor also relied on judgment in [PRECEDENT] represented by [PRECEDENT], on the question of appreciation of circumstantial evidence. In para 19 of the judgment, the Court observed as under :
"19. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. "
The learned Additional Public Prosecutor, therefore, rightly submitted that it was for the appellant to explain as to when he parted company with the victim, which he has not done.
45. It may be seen that the appellant had taken a three-
year-old child on the pretext of giving biscuits and did not hand over the child back to the custody of the mother. The dead body of the child was found on the next morning. Medical evidence showed that the child had been raped and sodomised. The evidence of PW 5 [ENTITY] shows that the appellant had left [ENTITY]'s place on the day of incident specifically to visit victim's village Asara. Appellant reported back at 4 p.m. on the next day, but soon thereafter gave up employment with PW 5 [ENTITY].
Thus the chain of circumstances established, clearly and unmistakably point to the appellant as the perpetrator of the ghastly crime. We, therefore, hold that the learned Trial Judge rightly held the appellant guilty of offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT].
46. This takes us to the question of sentence. The appellant has committed heinous acts of rape and sodomy upon a three-year-old girl showing perversity of his mind. While committing these dastardly acts, he showed no concern for extinguishing a tender life brutally, presumably by pressing her face against the ground, which led to mud entering her mouth and suffocating her. The question, therefore, is whether these acts could be dealt with leniently. The appellant has neither shown any remorse - repentance nor has pointed to any extenuating circumstances except that he has a nine-year-old daughter. The learned APP submitted that appellant's having a nine-year-old daughter cannot earn him a reprieve from extreme penalty for having so brutally dealt with an infant. She, therefore, submitted that this is indeed a case warranting imposition of death sentence.
For this purpose, she relied on a number of judgments.
47. In [PRECEDENT], on which the learned APP placed reliance, the Court was considering an appeal against sentence of death imposed for offences punishable under [SECTION] and [SECTION] of the [ACT] arising out of rape and murder of a 7-year-old girl by her own uncle. The case rested on circumstantial evidence.
The circumstances sought to be pressed in aid were last seen together, misrepresentation and intentional false statements regarding whereabouts of deceased and discovery and seizure of incriminating articles.
48. In [PRECEDENT], the Supreme Court was considering sentence of death awarded on account of rape and murder of an 18-year old girl. The case rested on circumstances of motive of crime, abscondance of the appellant, evidence relating to appellant's visit to the flat of the deceased and recovery of incriminating articles from the appellant's house. After considering the evidence tendered, the Apex Court confirmed the conviction as well as the sentence.
49. In [ENTITY] v. Bharat Fakira Dhiwar, reported at (2002) 1 SCC 622, the Apex Court was considering an appeal by State against acquittal by the High Court of person accused of raping and murdering a 3-year-old child. The case rested on circumstantial evidence. The Court held the circumstances as proved and also found that the case was fit for infliction of death sentence, but concluded that since the High Court had once acquitted the accused, inflicted sentence of imprisonment for life.
50. In [ENTITY] v. Suresh, reported at (2000) 1 SCC 471, the Court was considering the case of rape and murder of a 4-year-old child based on circumstantial evidence and principally the circumstance of last seen together. In that case, however, there was also discovery of dead body at the instance of the accused. The Supreme Court set aside the acquittal of the accused by the High Court. It held that the case warranted the death sentence, but since the high Court had once acquitted the accused inflicted sentence of imprisonment for life instead.
51. In [PRECEDENT], on which the learned APP placed reliance, the Court considered various interests, which have to be taken into account while inflicting sentence. It may be useful to reproduce paras 11 to 16 of the judgment as indicative of authoritative pronouncement of penology, which are as under :
"11. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentences. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting society.
[ENTITY] in his Law in Changing Society stated that :
"State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society."
Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance, a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murder of innocent people would call for imposition of the death sentence as a deterrent. In [PRECEDENT], this Court while refusing to reduce the death sentence observed thus:
(SCC p.82, para 6) "[I]t will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."
12. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in [PRECEDENT]
13. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is though then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, unformly disproportionate punishment has some very undesirable practical consequences.
15. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in [PRECEDENT] that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime.
In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
16. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. Where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
52. In [PRECEDENT], the Court was considering award of death sentence for gang rape and murder of a 16-year-old girl alone in house preparing for her examination. The case rested on circumstantial evidence, which included a circumstance of one of the accused having nail injuries on her person and also the accused persons making a false statement as to whereabouts of victim. The Court held the evidence adequate and confirmed the death sentence.
53. In [ENTITY] v. Shankar s/o Krisanrao Khade, 2008 ALL MR (Cri) 2143, a Division Bench of this Court was considering reference for confirmation of a death sentence for kidnapping, raping and murdering a mentally retarded minor aged 12 years. The case rested on circumstantial evidence, which included discovery at the instance of the appellant. The Court quoted from various judgments about requirement as regards circumstantial evidence. The Court also considered the judgments in [PRECEDENT] and [PRECEDENT].
54. We have carefully considered the facts of the present case in light of the above judicial precedents and find that the learned Trial Judge rightly held that the appellant deserved capital punishment. The appellant's conduct exhibits total disregard for human values and shows a totally depraved, brutal and scheming mind taking advantage of a helpless child, showing no concern that his lust extinguished the flame of life in the child.
We, therefore, confirm the sentence of death imposed upon the appellant for offence punishable under [SECTION] of the [ACT]. We also dismiss the convict's appeal and maintain his convictions as well as sentences imposed.
Judge Judge [ENTITY]