The incident generated widespread nationaland international coverage and was widely condemned both inIndia and abroad.This incident brought in questionthe safety of women into city like Mumbai which, with its activenight life was considered safe heaven for women.The SessionsCourt in Delhi, delivered its verdict on 10th September 2013,convicting the perpetrators of the crime.Another incident inthe financial capital of the country - Mumbai, shocked thewhole nation.This time it was another young girl Esther aged22 years who fell prey of the bestial proclivity at the hands of aman who ended her journey of life mercilessly for satisfying hislust."It took me quite a long time to develop the voice and now that I have it, I am not going to be silent"2 The prosecution case, as unfolded, discloses thatMs.Esther Anuhya, aged 23 years, on completion of her B-TechDegree course, was recruited as a Software Engineer in TCS inGoregaon at Mumbai.The deceased was a resident ofMachilipatnam, Andhra Pradesh and had completed hergraduation from Kakinada.On acquiring a degree, she shiftedto the city of Mumbai and was residing in YWCA Hostel forWomen in Andheri.The deceased came to reside with her parents atMachilipatnam on account of the leave availed by her and shestayed there from 22nd December 2013 to 4th January 2014.Shri Singavarapa Surendra Prasad, PW No.26, the father of thedeceased accompanied her to Vijaywada, nearest Railwaystation to Machilipatnam at about 5.00 a.m on 4th JanuaryTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 6 CONF_CASE_3_15.doc2014, from where a train was available to Mumbai.Estherboarded LTT Express at Visakhapatnam which reaches Mumbaion the next day at 5.00 a.m. At 9.00 p.m, she had a telephonicconversation with her father and she informed her father thatshe had reached Solapur.The LTT Express was to reachMumbai at 5.00 a.m in the morning and accordingly reachedthe station.PW No.26 - Singavarapa - attempted to contacther in the morning on her mobile phone to inquire whether shehad reached safely, but the call was not answered and themobile went on ringing.The father, thereafter, contacted theHostel to inquire whether Esther had reached there but hereceived a reply in the negative.On 5th January 2014 itself, thefather (PW 26) approached Vijaywada Railway Police Stationand lodged a missing complaint.With the said missingcomplaint, the devastated father landed at Lokmanya TilakTerminus Railway Station, Mumbai.He was informed by therailway police that the jurisdiction was that of Kurla PoliceStation and resultantly, he approached the Kurla Police Station.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::Then, began a frantic search of Esther and itcontinued till the date when it was revealed on the father thatTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 7 CONF_CASE_3_15.dochis daughter is no longer alive and this happened on 16 thJanuary 2014 when body of Esther was traced in the bushes onthe Express Highway.The body was found in a burnt anddecomposed condition but the father could identify Esther, hisdaughter by the ring in her finger and also from her belongingswhich were lying nearby.The area where the body was tracedwas falling in Kanjur Marg area and a complaint came to belodged at Kanjur Marg police station alleging that Esther wasmurdered by some unknown person.3 On a complaint being lodged, the Investigatingmachinery was set into motion by the Kanjur Marg PoliceStation.The spot panchnama was drawn in presence of panchwitnesses.A broken wrist watch of Fast Track Company,knicker and a pad, one pink colour T-shirt of 'M' size, one scarfof slate colour with white dots, one mobile phone containingTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 8 CONF_CASE_3_15.doctwo sim cards, and a tuft of hair were found lying on the spotand all the said articles were seized by drawing a panchnama.The same were forwarded to the Forensic Laboratory.A map ofthe spot came to be drawn and it reveals that the said spot is ata distance of approximately 8.90 metres from the Service Roadadjoining to the Eastern Express.The Forensic Personnels whoreached the spot also collected the samples of soil, dry grassand oily grass at the place of incident.The photographer wasalso summoned who clicked the photographs of the spot alongwith the photographs of the body of the deceased.InquestPanchnama was drawn in presence of panch witness and itdivulged that the body was in a partly burnt condition and onthe chest portion, there was a black brassiere which was alsopartly burnt.The portion of abdomen was completely burnt,whereas the private parts and adjoining parts were found to bepartly burnt.and reserved the final opinion, pending the Chemical Analysisof the samples.4 The investigation was carried out initially by KanjurMarg Police Station but it came to be transferred to the CrimeBranch.PI Dattatraya Naikodi registered the FIR, and carriedout further investigation in Crime No.6 of 2014 for the offencepunishable under Sections 302 and 201 of the Indian PenalCode.Further investigation was carried out by PW No. 34Nishikant Tungare, Sr.Police Inspector attached to Kanjur MargPolice Station.During the investigation, the CCTV footage fromthe Lokmanya Tilak Terminus was obtained with the assistanceof PW No.33 Shri Vishal Patil who was on duty in RPF, sincethe security of LTT was under the Government Railway Forceand RPF.The necessary clippings/footage was collected fromthe 36 cameras installed at the LTT Railway Station.The CCTVfootage revealed that Esther had walked out of the Railwaystation on 5th January along with one stranger who was walkingalong with her, carrying her trolley bag.Thecomplainant identified his daughter who was going along witha trolley and while coming out, she was talking on mobile andone stranger was pulling her trolley bag.Similarly, one Nokia Mobile was alsoTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 11 CONF_CASE_3_15.docfound in another pocket of his jeans pant with one sim cardwhich was seized.After the arrest of the accused, he made astatement of disclosure in presence of panch witness that hewas ready to produce the motor cycle which was used by him tocarry the deceased to the spot of crime.On such disclosurestatement being made, the motor cycle came to be seized.Further, the accused also made disclosure statement leading toseizure of bag and articles belonging to the deceased whichcame to be seized from two distinct places.The said articleswere identified by the complainant as the one belonging to hisdaughter.On seizure, the said articles were forwarded forChemical Analysis.The accused was also referred for medicalexamination and was examined by Dr.The spot panchnama reveals that the body of thedeceased was found at a place located to the East of the ServiceRoad of Eastern Express Highway at a distance of about 29 feet.All the said articles were seized from thesaid spot and came to be seized.The Inquest panchnamadiscloses that the dead body of the deceased was partly burntand blackened.It also mentions of long black hair of thedeceased which were found in partly burnt condition, eyes wereopen and had blackened.The face was completely burnt and soalso both the ears.Some portion of the body including the lefthand was bereft of any skin and was exposed.The right handwas spread over and the second finger was bent and yellowmetal ring was found in the middle figure.The caseof the prosecution is unfolded by the complainant, the father ofthe deceased who is examined as PW no.26 i.e. Singavarapa.PW No.26 is resident of Nobel Colony, Machilipatnam, AndhraPradesh.Deceased Esther, aged 23 years was his daughter.Hehas deposed before the Court that she had completed her B-Tech and she was a scholar academically and on acquiring theeducational qualification, she immediately secured a job in TCSas a software engineer.In Mumbai, he had arranged for herstay in YWCA Hostel for Women at Andheri.Shri Singavarapadeposed that whenever his daughter used to get leave, she usedTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 28 CONF_CASE_3_15.docto come to stay in Machilipatnam and on 22 nd December 2013,she came to reside with him and stayed till 4th January 2014.He further deposed that on 4 th January 2014, he took her toVijaywada which was the nearest railway station and fromthere, she boarded LTT Express which reaches Mumbai at 5.00a.m on the next day.He contacted her on her mobile phone at9.00 p.m when he was informed by his daughter that she hadreached Solapur and that she was going to sleep.He hasfurther deposed that when he attempted to contact her in themorning, her mobile phone was ringing but nobody wasresponding.He, therefore, contacted the YWCA Hostel and itwas reported that Esther did not report to the hostel.Shrikant Ladeis a Post Graduate in Bio-Chemistry and trained at Centre forDNA Finger Printing Diagnosis at Hyderabad.He had deposedthat he had handled 2500 cases and had given evidence in 200cases.In his deposition, he has given the details of theuniqueness of a body cell containing DNA and has deposedDNA technique is a very sensitive and stable technique.Hedeposed that from 15 intact cells, DNA profile is generated andthe source of DNA is stated to be any type of body cell, blood,semen, saliva, hair with root without root, teeth, nails,dandruff, ear wax, muscle tissues and bone.He furtherdeposed that on 18th January 2014, he received a letter fromKanjur Marg Police Station and received 2 sealed phials, onesealed test tube and three plastic containers in sealed condition.He further deposed that the description of articles in parcelswas blood sample of Singaravapa, the father of the deceased.He was requested by the Investigating Agency to examine theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 31 CONF_CASE_3_15.docvaginal swab, bone, teeth and nail of deceased as against theblood sample of the claimant i.e Singavarapa (PW 26).Hefurther deposed that he extracted DNA from the bone teeth andblood sample of Singavarappa and the DNA profiles weregenerated.Hefurther deposed that he had also obtained the articles in sealedparcel i.e Identity card, belt, spectacles, jeans pant, ladies halfT-shirt, ladies top, kajal pencil and he had extracted DNA fromsweat detected from Exhibit-1 i.e. Identity card with belt andspectacles and the bone of deceased which was received at thetime of earlier DNA sampling.He opined that DNA profileof sweat detected on Identity card, belt and spectacles and DNAprofile of bone teeth is identical and from one and the samesource of female origin.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::14 The deceased Esther who had boarded the train atVisakhapatnam, reached its destination at Mumbai with Estherbut thereafter, her whereabouts were not known and she didnot report to the Women's Hostel at Andheri where she waslodged.The Investigating Agency was therefore, focused oninvestigating as to how did this young girl who alighted thetrain at Lokmanya Tilak Terminus, reached the place where herbody was traced i.e. on the Service road adjoining the EasternExpress Highway.The prosecution relied on the CCTV footagefrom the cameras which were installed on the Lokmanya TilakTerminus to establish and prove that Esther had reached LTT.The Investigating Agency approached the RPF authorities sincethe security of the LTT was entrusted to the GovernmentRailway Force and the RPF.He also informed that he was a coolie and his services areTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 43 CONF_CASE_3_15.docconfirmed as a gang-man.PW No.19 Surendra informed thesaid person that he can go to the General coach and he wentthere and came back informing that there was no place in thegeneral boggie and thereafter this witness told the said personto go to sleeper coach since there was quota for NashikManmad.PW No.19 deposed that the said person was havingThumbs-up bottle in his hand and there was no luggage.The CCTV footage which was obtained, during thecourse of investigation, was also shown to one Hemant DharmaKohli examined as PW No.27 who was residing in the vicinitywhere the accused was residing i.e. at Kanjur Marg.The saidwitness deposed that he knew the accused Chandrabhan Sanapand his family members since he was residing in the same areawhere the witness was residing.When the CCTV footage wasshown to him, he identified the person in the footage walkingon the platform with one bottle of cold-drink in his hand.Hefurther deposed to the Court that he identified the said personin another footage as Chandrabhan Sanap who was pulling thetrolley bag.Nandkishore deposed that heknew him as he was staying at Kanjur Marg and they used toplay cards.He deposed that on 4th January 2014, he visitedRajashree who was staying in the chawl and doing the businessof selling liquor, where he consumed liquor till 11.30 p.m. Hestated that at about 11.30 p.m, Chowkya came there and sat forconsuming liquor and till 1.30 a.m, they were sitting there.During the search, one xerox copyof letter was found in his back pocket of jeans pant and onfurther inquiry, it was found that it was a kundli prepared byJyotish Visarath Rajabhau Aher.ShriRajabhau Aher deposed before the Court that he was anAstrologer and used to prepare Horoscope.He deposed thaton 5th January 2014, at about 2.00 p.m, he was approached byChandrabhan Sanap who was accompanied by one elderly lady.The witness deposed that he was under pressure and he toldhim that his stars are not good and therefore, he wants to showhis horoscope.Accordingly, the horoscope was prepared andPW No.17 informed the accused that there are few faults in hishoroscope Kal Sarp Dosh and Ati Gandh dosh and he advisedhim to perform Shanti Puja at Trimbakeshwar.The witnessdeposed that he handed over to the accused the visiting card ofTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 ::: 53 CONF_CASE_3_15.docone Prasad Shukla and asked him to approach him to performthe puja.He accepted an amount ofRs.3,000/- from the accused and performed puja on 6th January2014 at 7.30 a.m which was completed at 11.45 a.m. Thewitness deposed that the accused was accompanied by hismother.The accused further deposed that he asked him aspecific query as to whether a sin committed towards a ladycould be cleared by performing this puja, to which the witnessreplied that there is no relation between one's act and this Puja,but because of this puja, problems are solved.The prosecutionhas relied on the Register maintained by this witness and whodeposed before the Court that he used to maintain the registerand enter the name of the person, date and amount.Theprosecution has relied on the testimony of one Pralhad KumarYadav examined as PW No.23 who happened to be strolling hisdog on the highway near Service road in the morning hours.The said witness deposed before the Court that he was workingin a Salt Office which was located between Kanjur Marg andBhandup and he was staying in the office.He had furtherdeposed that in early morning, he used to take the dogbelonging to his owner for stroll on highway near service road.On 19th January 2014, one constable approached the saidwitness and took him to the police station for making certaininquiries.He revealed to the police that he had seen oneperson starting the bike near service road and when he inquiredfrom the said person whether his bike was not starting.Thewitness deposed that when he saw the said person, he foundmud on his shoulder and he inquired whether he had a fallwhich the person answered in the negative.He furtherinquired whether he should assist him in starting the bike toTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 ::: 56 CONF_CASE_3_15.docwhich the person answered that there was no petrol in the tank.The witness further deposed that there was one bag on his backand one bag was kept on the petrol tank.Thereafter, he parkedthe said bike and he started proceeding towards Vikhroli andalso pulled the trolley bag.The said witness has deposed thatthe said person was walking in front of him and was wearing awhite colour t-shirt and blue colour jeans pant and his heightwas 5.5" and complexion was of wheatish colour.The said witness also identified theaccused present on the screen of the video conferencing and heclarified that he is the same person, but at that time, he was nothaving a beard and he was of a strong built.She further deposed that when sheasked the accused why he is giving the same, he informed thathis sister is no more and, therefore, he gives the black colourbag of the wheels.(iii) An old jeans pant of blue colour;(iv) An used ash gray colour half ladies T-Shirt and another black and pink hosiery ladies top.(v) A light blue colour pant and one leggings of green colour.(vi) One used eye pencil of Maybelline company.The said articles came to be seized on executing aseizure panchnama at the instance of the accused from RoomNo.12 in Sai Building where the sister of the accused wasresiding and running a mess.were not answered and she did not reach her hostel located inAndheri.1 An incident of rape and fatal assault that occurredin the National Capital on 16 th December 2012 which involveda 23 year old physiotherapist intern, shocked the conscience ofthe whole nation.There was unrest and public protest in thecapital which was followed in several major cities in its ownway.Social networking sites were put to use to raise a demandof strict law against rape.This resulted into constitution of aTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:23 ::: 3 CONF_CASE_3_15.docthree Member Committee on 23rd December 2012 headed bythe Former Chief Justice of the Supreme Court Justice J.S.Verma to recommend amendments to the Criminal Law so as toprovide for speedy trial and enhance punishment for offence ofsexual assault against woman.This was followed by the Department-related Parliamentary Standing Committee on Home Affairstabling its report recommending amendments to the criminallaw.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:23 :::Barely could have the law makers given a sigh ofrelief by enacting a drastic law dealing with the offencesagainst women and before the Court seized of the said trial,Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:23 ::: 4 CONF_CASE_3_15.doccould deliver its verdict, in August 2013, a 22 year old photojournalist who was interning with an English Magazine inMumbai was gang raped by five persons, including a juvenilewhen she had gone to the deserted Shakti Mills Compound inrelation to an assignment.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:23 :::The series of incidents which came to highlight andseveral other incidents which are not even reported by themedia or not even reported to the police have resulted in theentire womenfolk in the country posing a question of theirsafety and security.The entire womenfolk is heard raising anoutcry and find themselves in a panic striken state of mind andTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 5 CONF_CASE_3_15.docexpect the Executive Legislature and the Judiciary to restoretheir faith in the system.They echo the sentiments similar towhat Madeleine Albright has once remarked :-::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::The body was handedover to the grief-striken father on 17th January 2014 aftercompletion of the necessary formalities for the purpose ofconduct of last ritual and the father carried it to Machilipatnamfor performance of last rites.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::The body was forwarded for post mortem to Sir J.J.Hospital and PW No.25 Dr. Gajanan Chavan conducted the postmortem and submitted a report and expressed the probablecause of death as "Blunt injuries over body and genital injuries"::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::His statement came tobe recorded.On the basis of the CCTV footage, an investigationteam proceeded to carry out further investigation and madeinquiries from the persons on the railway station and nearbyspot on the Expressway where the body was found.Based oncertain statements which came to be recorded, the InvestigatingMachinery succeeded in arresting one Chandrabhan Sanap asthe person who was accompanying Esther on 5 th January 2014while coming out of Platform No.4 as seen in the CCTV footage.The accused Shri Chandrabhan Sanap came to be arrested videArrest Panchnama dated 2nd March 2014 and panch SalimMushtaq Shaikh executed the said panchnama.The accusedwas taken into custody at Kanjur Marg Police Station and onphysical search of the accused, one piece of paper was found inhis back pocket of jeans pant and it was a writing of anAstrologer Rajabhau Aher from Nashik, Trimbakeshwar.It wasin the form of a Kundli.Kushal Tayde whoopined that his genital organs are normal and that he wascapable of performing a sexual act.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::On completion of the investigation, chargesheet wasfiled before the Addl.The prosecution alleged that deceased Esther, resident ofTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 12 CONF_CASE_3_15.docVijaywada, working at TCS in Mumbai had boarded LTTExpress at Vijaywada on 4th January 2014 to reach Mumbai.However, when she reached Mumbai, she was kidnapped byaccused Chandrabhan Sanap who took her to the place ofincident and after committing rape on her, committed hermurder and in order to destroy the evidence, burned the bodyat a secluded place at a close distance on the EasternExpressway.The accused was charged for abducting Esther on5th January 2014 at 5.30 am from Lokmanya Tilak TerminusStation on the pretext of dropping her at the hostel andthereafter he made to sit her on his bike and took her to alonely place behind the bushes on Mumbai-Thane Service Roadand forcibly committed sexual intercourse with her.He wascharged with Sections 364, 366, 376(2)(m), 376(A), 392 r/wSection 397, 302, and 201 of Indian Penal Code.He was alsocharged with offence punishable under Section 170 of the IPCsince he pretended to hold office of Railway Security RPF andby assuming his character as such, refrained from payingParking charges.He was also charged with Section 147 of theRailways Act, 1989 for committing an offence of trespass.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::The accused pleaded not guilty to all the saidcharges and thereafter, the prosecution proceeded to prove thecharges against the accused by adducing evidence.Theprosecution examined 39 witnesses.The statement of theaccused under Section 313 of the Code of Criminal Procedurecame to be recorded and the accused examined four witnessesin his defence.The learned Addl.Sessions Judge convicted the accusedfor the offence punishable under Sections 302, 364, 366,376(2)(m), 376A, 392 r/w Section 397 and 201 of the IPC.Hewas acquitted of the offences punishable under Section 170 ofthe IPC and Section 147 of the Indian Railways Act. Foroffence punishable under Section 302 of the IPC and theaccused was ordered to be hanged by neck till he is dead.Onconviction under Section 364, 366 and 376(2)(m), the accusedwas sentenced to suffer Rigorous Imprisonment for 10 yearsseparately.On conviction under Section 376A, he is sentencedTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 14 CONF_CASE_3_15.docto suffer RI for Life, which shall mean the Imprisonment forremainder of his natural life.For offence punishable underSection 392 r/w Section 397, he is sentenced to suffer RI for 7years.Further, for offence punishable under Section 201 of theIPC, he is sentenced to suffer RI for 7 years.All the substantivesentences of the Imprisonment of the accused are directed torun concurrently.The accused is directed to pay compensationof Rs.50,000/- which is directed to be paid to the parents of thedeceased provided they are ready to accept the same.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::While imposing the death sentence, the Addl.learned Sessions Judge has recorded that the accused has actedwith extreme brutality and committed the offence in a pre-planned and a diabolical manner.TheConfirmation Case No.3 of 2015 which has been placed beforethe High Court came to be tagged by order dated 5th January2016 with Criminal Appeal No.1111 of 2015 filed by theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 16 CONF_CASE_3_15.docaccused/appellant.Both thematters were taken up for final hearing on 11th October 2018and accordingly, the accused was directed to be produced.Weconcluded the hearing of the matter on 1st November 2018 afterconducting day to day hearing.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::Raja Thakare.In Criminal Appeal No.1111 of2015, Shri Nitin Pradhan appears for the appellant and theState is represented by Special Public Prosecutor Shri Thakare.We have heard both the matters on day-to-day basis and theaccused was present in the Court on all the dates of hearing.7 With the assistance of the learned Special PublicProsecutor Shri Thakare and Shri Pradhan learned counsel forthe accused, we have scrutinized the entire record and theevidence brought on record by the prosecution and also theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 17 CONF_CASE_3_15.docdefence.The learned counsel Shri Pradhan appearing for theappellant would submit that the prosecution has not dischargedits burden in proving the guilt of the accused beyondreasonable doubt when it was duty bound to establish all thepieces of incriminating circumstances by reliable and clinchingevidence and the circumstances so proved must result into achain of events which would lead to no conclusion other thanthe guilt of the accused.Shri Pradhan would submit that thecircumstances cannot lead to other hypothesis and meresuspicion, however, grave it may be, cannot be a substitute fora proof and in the case based on circumstantial evidence, theCourt must be extra cautious in relying on the evidence broughton record by the prosecution.Shri Pradhan would submit thatin the present case, several links are missing and there is noproof of any motive, much less a strong motive attributed to theaccused and in absence of such proof, the most vitalrequirement of law to prove a case of circumstantial evidence isnon-existence.Shri Pradhan submits that body of the deceasedwhich was discovered, was in an advanced stage ofdecomposition and was beyond recognition and in thisTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 18 CONF_CASE_3_15.docbackground, the prosecution has not made out a case of rapeand in fact, no injuries to that effect could be discerned fromthe post mortem report and Shri Pradhan is very critical aboutthe manner in which the prosecution has brought an improvedversion of its case through the doctor who conducted the postmortem by raising certain queries and in its response, thenproceeded to foist a charge of rape on the accused.Shri Pradhan has also disputed the legality of theevidence brought on record in form of CCTV footage, which isthe only genesis on the basis of which the prosecution isderiving an inference that the deceased was last seen in theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 19 CONF_CASE_3_15.doccompany of the accused.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::8 As against this, Special Public Prosecutor ShriThakare submits that the prosecution has successfullyestablished the circumstances which pointed to the accused andthe Special P.P would submit that it has not relied on a solitaryTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 20 CONF_CASE_3_15.doccircumstance but through the evidence brought on record, theprosecution has established a chain of circumstances which isaptly corroborated and led to an irresistible conclusion that itwas only the accused who had committed the crime.His submission isTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 21 CONF_CASE_3_15.docthat the subsequent conduct of the accused after commission ofthe crime has also been brought on record through evidence ofthe witnesses who had deposed about the acts of the accused inthe normal course and Shri Thakare submits that thestatements of these witnesses were recorded even before theInvestigating Agency had zeroed down on the accused to be theperson who was responsible for causing death of the accused.Shri Thakare would submit that the Sessions Court, by takinginto consideration the totality of circumstances and thecumulative effect of the evidence brought on record hasappreciated the same in light of the well settled norms ofcriminal jurisprudence and has arrived at a finding of guiltagainst the accused.As far as the imposition of death penalty isconcerned, we would refer to his submission a while later whenwe come to the point of sentencing.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::9 The case of the prosecution is based oncircumstantial evidence and the prosecution has relied on 39witnesses to establish its case apart from several documentaryevidence.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::the prosecution places reliance on the spot panchnama provedby PW-2 Bapu Adsul.The spot panchnama discloses that on the said place a space of5 x 3 feet was in a burned condition and at a distance about 8feet from the said place there is a space of 4 x 3 feet which isblackish in colour where the dead body was lying.The spotpanchnama further reveals that on careful perusal of the spot,at the north of the said place, a Samsung Duos company mobileis lying at a distance of 5 feet.One rubber mobile cover darkblue in colour was also found lying on the spot.On the spotone black gray colour scarf with white spots was also foundwhich came to be seized.On the spot one pink colour T-Shirtin partly burned condition with M-size also came to be seizedfrom the spot.Further, at a distance of 2 feet from where thebody was lying, one Fast track company watch with a black dialwith broken belt was also lying on the spot.The spotTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 23 CONF_CASE_3_15.docpanchnama further reveals that a purple colour doted knickerand white colour pad attached to the said knicker was alsolying on the spot.The chest portionwas found to be completely burned and the black brassiere wasattached to the body and the portion of abdomen was charred.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::The body of the deceased was sent for conduct ofpostmortem and Dr.The postmortemTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 ::: 24 CONF_CASE_3_15.docreport relied on by the prosecution also refers to black colourbra with avulsed hook-metallic.Rigor mortis was absent in thebody and postmortem report makes mention to the followingeffect:::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:24 :::"Variable mix pattern of decomposition seen.Facial skin burnt, blackish adherent to skull bone, Skin absent at some places of extremities and abdomen exposing bones and abdominal viscera at places.Ends of long bones are nibbled and exposed.Natural separations seen at most of the joints without evidence of ante mortem fractures No Maggots".As far as the column of surface wound and injuries thepostmortem notes mention as under :1. Contusion over LT-Left fronto temporal area 4 x 5 cm, blackish red colour."2. Contusion over lower lip right side against canines- blackish red in colour 2 x 2 cm.Both contusion confirmed by cut section.The postmortem makes note of decomposition seenin pericardium and heart.Abdomen is found to be absent.Theopinion as to the probable cause of death has been cited asfollows :-"Blunt injuries over body and genital injuries seen.However, final opinion result, pending for CA of samples".The cause of death in the saidcertificate is described as follows :-::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::"Death due to Head injury with smothering associated with genital injuries."11 The prosecution has also relied on the response tothe query raised by the Investigating Officer to the team ofdoctors who conducted the postmortem in regard to the injuryin column No.15 which postmortem was described in thepostmortem notes to the following effect."15. injuries to external genitals.Indication of purging-genitals distorted due to decomposition, vaginal wall shows blackish reddish discoloration at posterior wall, confirmed by cut section"The query that was raised by the Senior Police Officer tothe J.J. Hospital on 28.07.2014 raised the following doubts:-"(i) What can cause the state of the organs mentioned in column(ii) In the state of organs in column no.15 whether can be caused by forcible insertion of anything in the vagina.Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 26 CONF_CASE_3_15.doc::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::(ii) Whether the state of organs as mentioned in column 15 is on account of decomposition."The Medical Officer replied to the said query on 12.08.2014 by thefollowing reply:-(i) As to point no.1 the state of the organs can caused due to antemortem injuries to the private part and subsequently due to its decomposition.(ii) As to point no.2 answer state of organs as mentioned in column 15 can caused on account insertion of anything into the vagina.(iii) As to point no.3 answer to point no.1 to be perused.12 On the basis of the aforesaid documentary evidencethe prosecution has established that the deceased whose bodywas found on the Service Road of the Eastern Expressway on16.01.2014 was subjected to forcible sexual intercourse andthereafter was done to death by causing Head injury coupledwith smothering.It is also the case of the prosecution that thedeath had occurred on account of the said Head injury withsmothering associated with genital injuries and the prosecutionattributed it to the accused and it is alleged that she wasassaulted on her head resulting into the injury mentioned incolumn no.17 which was confirmed by cut section.It is alsoTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 27 CONF_CASE_3_15.docthe case of the prosecution that the contusion over lower lipright side against the canines, which is reflected as blackish redin colour depicts the force applied.Further the prosecutionalso relies on the response to the query report to sustain thecharge that the injuries to the genitals are ante-mortem andsubsequently decomposed.The postmortem report hadmentioned the same to be distorted due to decomposition.13 The prosecution relies on oral testimony of witnessesto support its case based on circumstantial evidence.Thereafter, PW No.26 lodged a missing complaint with theRailway Police Station at Vijaywada and landed in Mumbai andapproached the Kurla Police Station.He further deposed thathe undertook search of his daughter and the police found thelast signal of the location of her mobile at Bhandup and onfurther search on Express Highway, on 16th January 2014, thebody of his daughter was found near Express Highway in thebushes.He recognised the body to be of his daughter from aTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 29 CONF_CASE_3_15.docfinger ring in her finger.He has deposed that the condition ofthe body was very bad and beyond recognition.He lodged anFIR and took possession of the body for performance of lastrites.He has further deposed that the Investigating team atKanjur Marg contacted him and they inquired about the articleswhich his daughter was carrying, which he informed to be atrolley bag, laptop bag, one sack, one or two handbags andsome other articles.He was also shown the CCTV footage onpen-drive when he recognized his daughter entering theplatform along with the trolley and a bag and sack on her back.In one footage, he recognized his daughter who was holding amobile and one man was drawing her trolley.This witness hasdeposed that his daughter was wearing one wrist watch of FastTrack company when she left the house.PW No.26 alsorecognized a Yellow metal ring on her finger which was seizedand marked as Article 27 and also the Fast Track wrist watch aswell as her other belongings i.e. scarf, trolley bag, identity card,spectacles etc. The identity of the body found lying nearBhandup on the Express Highway was established by PW No.26as to be of his daughter.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::Through this witness, the prosecution has thereforeestablished that the body found on the Expressway on 16 thJanuary 2014 was of the daughter of PW no.26 and the articleswhich were seized during the course of investigation andTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 32 CONF_CASE_3_15.docclaimed by the prosecution to be belonging to the deceasedwere proved to be matching with the DNA extracted from thebone of the deceased.For security purposes, the 36 CCTVcameras were installed on the railway station with its displaybeing monitored in the CCTV control room.On requisiteTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 33 CONF_CASE_3_15.docpermission from the RPF, the Personnel from the Company whowas maintaining CCTV cameras was instructed to provide theCCTV footage.The CCTV footage came to be transmitted to thepen drive and it was collected for the period from 4.00 a.m to7.00 a.m on the date of incident i.e. 5 th January 2014 whenEsther de-boarded the train at LTT which she had boarded atVisakhapatam.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::The said witness has deposed before the Court thatthere are cameras installed on all the platforms of LTT and alsoin the rooms and there were two monitors, the first monitoring20 cameras and another monitoring 16 cameras.He alsodeposed before the Court that the servers are kept in thecontrol room and there is an automatic recording system incamera.He further deposed that there is Hard disk in theserver and recording gets saved in the server.He furtherTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 34 CONF_CASE_3_15.docdeposed that in one server, there is recording of 12 days and inanother server, there is recording of one month and after theexpiry of the said period, recordings are automatically deletedfrom the said servers.He also deposed that since there wassome fault in the server, he visited the control room in themonth of January and at that time, the Police Officers fromKanjur Marg Police Station sought for a footage and heinformed that it could be done only with the permission of theRPF.He deposed that after obtaining the necessary permission,he had transmitted the footage of 5 th January 2014 which wasavailable on CCTV camera to the pen drive.The footage wasplayed and verified and thereafter, the pen drives were sealedin presence of two panch witnesses.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::PW no.29Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 35 CONF_CASE_3_15.docdeposed before the Court that when he visited Machilipatnamand showed the CCTV footage to the complainant, he identifiedhis daughter while going with the trolley and while she wastalking on mobile and one person was pulling her trolley.Hefurther deposed that PW No.26 identified the trolley bag asbelonging to his daughter and he also informed that he wasaware of the articles in the said bag since he was present at thetime when his daughter packed her bag.This version iscorroborated by PW no.26 who deposed before the Court whenhe was shown the CCTV footage on pen-drive and he saw hisdaughter entering the platform along with the trolley and a bagand sack on her back.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::The prosecution, therefore, established through theevidence of these witnesses that Esther had reached Mumbai byLTT Express and deboarded the train since the CCTV clippingsrecorded the images of Esther walking on the Railway Platformat 04.59.30 when she was seen pulling a trolley bag.However,the next footage of 05.06.45 is an image of one person wearingwhite t-shirt and blue jeans pulling the trolley bag and womanseen in the earlier footage following him talking on mobileTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 36 CONF_CASE_3_15.docphone.The CCTV footage which was recorded from 4.00 amto 7.00 am on 5th January 2014 is in form of different clips.16 The prosecution has also examined the panchwitness Girish Mishra who is examined as PW No.1 and whohas proved the panchnama prepared while transmitting thedata from the Control room to the pen drive.PW No.1 hasdeposed before the Court that an attempt was made to searchthe footage of 1 ½ hour as there were too many cameras.Hefurther deposed that two pen drives of 64 GB were to be usedto retrieve the data of 5th January 2014 from 4.00 am to 7.00a.m.He further deposed that the pen drive was inserted inDigital Video Recorder (DVR) which was connected to 16cameras on the said railway station and before the data wastransmitted, it was ensured that the pen drive was blank.Hethen deposed that pen drive was removed from DVR andconnected to the computer thereby properties of the pen driveof 425 files were copied in another pen drive and he signed thepanchnama which was prepared by which pen drives wereseized, sealed and stamped.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::The CCTV footage obtained by the InvestigatingAgency during the course of investigation and which was putbefore the trial Court through Prosecution Witness No.31 is theaxis of the whole chain of circumstances relied upon by theprosecution.We requested the learned Special PublicProsecutor Shri Raja Thakare to play the CCTV footage beforeus so that we can appreciate the case of the prosecution.Accordingly, the pen drive which carried the CCTV footage wasconnected to the laptop during the course of hearing and wehad an opportunity to examine the entire footage and thelearned Special Public Prosecutor also supplied the stillphotographs of the relevant clippings on which the prosecutionrelies.A copy of pen drive was also supplied to Shri Pradhan,learned counsel for the accused.17 On examination of the various clippings, bothrunning and in form of still photographs, reveal the followingdetails.1 The first clip beginning time is 04:48:20 a.m, which is recorded in the camera installed on platform no.5 towards Kalyan side.In this clip, itTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 38 CONF_CASE_3_15.doc is seen that one person is getting down from a stationary train wearing white t-shirt and blue jeans and having a bottle of cold-drink in the hand.The clip is upto 04:49:06 a.m. This clipping will have to be appreciated in light of evidence of PW 18 who has identified the accused as the person who had purchased the bottle of Thums-Up from his stall.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::Here, a person in white t-shirt gets down from a railway boggie and sits near the pillar of the railway shade.The clipping starts at 04:59:30 which shows one lady going inside the waiting area pulling a trolley bag and having other bag on the shoulder (Although the features of the person are not identifiable).4 This footage is from the camera installed in the hall and relevant time is 05:00:57 wherein a girl is seen pulling a trolley bag having other shoulder bag and wearing a scarf.5 There is one more clipping captured in the CCTV camera installed on platform no.5 towards CST showing same lady walking while pulling a trolley bag and having one more bag and purse on the shoulder.Both these clippings (4 and 5) make is clear that it is one and the same woman.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::wearing white t-shirt and blue jeans is alighting from one of the boggies and walks on the platform.The screenshot is taken at 05:07:02 where the face is clear and the person is the same as in the earlier clippings.This is on platform no.5 towards CST.The relevant time is 05:10:52 when it is seen that the same man with the white t-shirt and blue jeans is pulling the trolley bag and the same woman which was seen in the earlier footages is walking along talking on mobile phone.Screenshot is taken at 05:11:13 when the face of the person pulling the trolley bag can be clearly seen.Also the pink t-shirt worn by the woman is seen.18 Relying on the CCTV footage, the prosecution hasestablished that Esther reached Mumbai at approximately4.59.30 a.m when she approached the waiting area pulling herown trolley bag and having another bag on her shoulder.Inanother clipping, she is walking while pulling her trolley bagand one more bag and purse on her shoulder.The earlierclippings recorded at 4.48.20 am discloses one person gettingdown from a stationary train wearing white t-shirt and bluejeans and having a bottle of cold-drink.The screen shots of theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 40 CONF_CASE_3_15.docsaid clipping clearly reveal that it is the accused who is presentbefore us.Another clipping captures the person in white t-shirtwalking on the railway platform and we had noticed that hewas walking in a shaky condition.A screen shot taken at4.58.48 clearly focuses on the face and the said person in thesaid screen shot in the accused who is present before us.In thelast footage recorded at 05.10.52, the accused in white t-shirtand blue jeans is seen pulling the trolley bag and Esther who isseen in the earlier footage is following him and she is talking onher mobile phone.The pink t-shirt worn by the woman isclearly seen.Thus, the prosecution with the help of CCTVfootage has established its case to the extent that Estherreached the LTT and she exited the railway station along withthe accused.Shri Pradhan has alleged that the said evidenceled by the prosecution do not withstand the test of 'evidence' interms of the Evidence Act and we would be dealing with thesaid submission a later.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::19 In order to further corroborate the presence ofaccused at LTT and to establish that the deceased accompaniedTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 41 CONF_CASE_3_15.dochim while leaving the Terminus, the prosecution has relied onthree witnesses.He stated beforethe Court that it was not possible for him to exactly state if it isso, since thousands of people come to him.However, hefurther deposed that on 5th January 2014, one person hadapproached him after opening the stall and purchased aThumbs-up for Rs.34/- and gave him currency note of Rs.100/-and when he requested him to give change of Rs.4 and herefused to hand over the change, in turn, this witness gave hima chocolate.Then, the accused started abusing him and arguedwith him for approximately 10 to 15 minutes and that is howhe remembered him.He also deposed that he was his firstcustomer and he had a mustache and his forehead was broadand he was wearing white t-shirt and blue colour pant and onekey was hanging from his pocket.He also deposed that hisheight was 5.5" and he was having a well built body and was ofTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 42 CONF_CASE_3_15.doc28 to 29 years of age.He further deposed that he can identifythe said person if shown to him.He also stated before theCourt that he was asked to attend the Arthur Road Jail forIdentification Parade of the accused and in the said Parade, heidentified the person who came to his shop on 5 th January2014 and purchased cold-drink and abused him.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::Another witness examined by the prosecution isShri Surendra Nair PW No.19, working as an A.C. Mechanic inCentral Railway who deposed that on 4 th January 2014, he wason duty at Kurla Terminus and on the relevant date, he was onstand-by duty.He further deposed that on that date, there wasno A.C. mechanic in Tulsi Express and was sent as A.C.Mechanic in the said train which was to arrive at KurlaTerminus at 4.30 a.m. He deposed that the said train arrived at4.30 a.m and he was standing near the train for boarding italong with two attendants since he was to enter the A.C.Compartment before one hour of departure and switch on theA.C. At that time, he was approached by one person informingthat he is from railway staff and he wanted to go by the train.Healso deposed that he was wearing white color t-shirt and jeanspant and he was well built and not having hair from the frontside.PW No.19 alsoidentified the accused during Identification Parade held on 25 thJanuary 2014 at Arthur Road Jail.This witness also identifiedthe accused on the screen of the Video Conference.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::The third witness whom the prosecution has examined toestablish the presence of the accused on LTT platform alongwith the deceased in the early hours of 5th January 2014 is PWno.20 Ramesh Rathod.The said witness was engaged in thejob of Supervisor in the pre-paid taxi booth at Kurla TerminusTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 44 CONF_CASE_3_15.docrailway station and the nature of his work is to look after theworkers and go to RTO for the said purpose.He further deposed that on 5th January 2014,Visakhapatnam train came on platform at 5.00 am to 5.15 amand he saw one lady going with one man who was havingtrolley bag in his hand.PW 20 - Ramesh Rathod inquired fromhim whether he required a taxi and he answered that he washaving vehicle.The witness gave the description of the saidperson as having broad mustache and bald from front side andwearing t-shirt and blue jeans pant and was of approximately35 years.He deposed before the Court that the police weremaking inquiries about the said incident regularly in regards toone girl missing from the said railway station and when hecame to know about such an inquiry, he on his own went toCrime Branch Ghatkopar on 20th March 2014 and he gave hisstatement to the police that he saw the girl going with oneperson.The said witness also identified theaccused person on the Video Conferencing screen.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::20 Thus, the prosecution with the assistance of theaforesaid witnesses has established the presence of the accusedon the platform where the deceased terminated her journeyfrom Visakhapatam and the prosecution has established its caseTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 46 CONF_CASE_3_15.docthat the accused convinced the deceased to follow him orassured her of reaching the destination at Andheri and as such,the deceased handed over her trolley bag to the accused andboth of them were seen walking out of the railway stationbetween 5.10.52 a.m and 5.11.15.a.m.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::21 Chandrabhan came to be arrested on 2nd March2014 after his identity was established during the course ofinvestigation on the basis of the CCTV footage and thestatements recorded.The arrestpanchnama was prepared after physical search of the accusedand on inquiry, the accused gave his address of Nashik and alsosupplied another address of Building No.2, Door No.108, KarveMarg, Kanjur Marg (West).On inquiry, in relation to theaccused person at his given address, the prosecution was ableto collect further evidence in relation to the past and postincident conduct of the accused and which was brought beforethe Court.PW No.12 is one Rajashree Shetty who was residingTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 47 CONF_CASE_3_15.docin MHADA building, Karve Nagar, Kanjur Marg and who wasknowing the accused Chandrabhan Sanap.The said witnessdeposed before the Court that she knows one NandkishoreSahu (PW No.9) who is staying adjacent to her house and whoused to visit her for consuming liquor and on occasions,accused who was also known as Choukya, also used to visit herhouse.She deposed before the Court that on 4 th January 2014,at about 10.30 p.m, Nandkishore Sahu came to her house withliquor and when they were consuming liquor, ChandrabhanSanap also came there with a bottle of liquor and asked forsome snacks.However, since there was no food in her house,he asked for a key of motorcycle of Nandkishore and took hisbike and Nandkishore waited for the accused to return with hisbike.The prosecution also relies heavily onthe said witness, as according to it, it is to this witness, theaccused had given an extra judicial confession about thecommission of crime.Nandkishore Sahu is the owner ofmotorcycle bearing No.In his depositionbefore the Court, he recognized the accused produced by VideoTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 48 CONF_CASE_3_15.docconferencing as Chandrabhan Sanap @ Choukya who wasresiding behind his building.PWNo.9 further deposed that the accused told that he was hungryand asked for some eatables.However, there was nothing thereto eat and therefore, he asked for key of his motorcycle and theaccused took his bike and went away at 1.30 a.m. It is furtherdeposed by PW No.9 that he waited for 40 - 45 minutes, but hedid not return back and thereafter, he went to his house andwent to sleep.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::PW no.9 further deposed that at 7.30 a.m, hereceived a phone call from the accused and PW no.9 visited hishouse where is mother and sister were present.He noticed onehand bag and one trolley bag there and there was also onewhite colour t-shirt stained with mud lying there.Thereafter,Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 ::: 49 CONF_CASE_3_15.doche came after wearing the clothes and when this witness askedfor the key of his motorcycle, the accused told him that as therewas no petrol and he had parked the vehicle at highway and heasked him to accompany by taking some other vehicle.PW 9Nandkishore further deposed that he asked for a motor bikefrom Kadir Murgiwalla and on his splendor, the accused satbehind him and told him that he would take him to the placewhere the motorcycle was parked.On reaching the Serviceroad at Bhandup where the motorcycle was parked, but whenhe attempted to start the motorcycle, he did not succeed asthere was no petrol.PW 9 deposed that thereafter the accusedwent 100 ft away inside the bushes and he followed him.Heasked the accused what he was searching for.At that time, hesaw one girl was lying there and she was not alive and hedeposed that she was 23 - 24 years old.On seeing the body,PW 9 was scared and he came back and the accused followedhim running.At this point of time, as per the version of PWNo.9, he has deposed to him that he had gone to KurlaTerminus by taking his bike and one girl got down from thetrain.He asked the girl where she wanted to go and when sheTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 ::: 50 CONF_CASE_3_15.docinformed him that she wanted to go to Andheri, he told that heis also going to Andheri and he had taken her on themotorcycle and brought her on the spot.He further told thathe had taken her in the bushes and thereafter he raped her andwhen she started shouting, he pressed her mouth andstrangulated her by scarf and killed her.PW 9 further deposedthat he put petrol in the said motorcycle from anothermotorcycle and reached home.PW 9 further deposed that hewas threatened by the accused not to report this incident toanybody.As per the said witness, on 6th January 2014 and 7thJanuary 2014, the accused called him and threatened him, buthe refused to receive his calls as he was aware that the accusedis of quarrelsome nature and two more crimes were registeredagainst him.The witness deposed that on 15 th January 2014,he did not receive the call of the accused and thereafter, heproceeded to Nashik since his mother's health was not good.The prosecution has heavily relied on theextra-judicial confession and which is clearly criticized by ShriTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 ::: 51 CONF_CASE_3_15.docPradhan and the reliability of the prosecution on the said extra-judicial confession would be dealt by us at a later point of time.22 In order to further establish the link of the accusedto the crime in question, the prosecution has placed reliance ontestimony of witnesses who throws light on the subsequentconduct of the accused after commission of the crime.He further deposed that the accused was married forthree times and his first wife had expired and his second wifehad left him and he was residing with his third wife in the saidhouse.He deposed that on 5th January 2014 at 9.00 a.m, hesaw the accused going with his mother and at that time, theaccused was having one bag on his back and one trolley bag.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:25 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::arrest panchnama on 2nd March 2014, the accused wassubjected to physical search.The witness has categorically deposed that afterdiscussing the horoscope, the accused asked him if any sin hasbeen committed by him against woman, whether the Puja couldrectify him.The said witness also identified the xerox copy ofthe horoscope prepared by him and since the original of thehoroscope was with the accused.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::In order to complete the chain of the conduct of theaccused, the prosecution has examined another witness whohas performed the Kal Sarp Puja as per advise of PW no.17.The said witness is Prasad Sharadchandra Shukla and examinedas PW no.16 by the prosecution.The said witness deposedbefore the Court that he was working as a Priest inTrimbakeshwar temple and was performing the puja of KalSarp Yog.He deposed that one Rajabhau Aher, an Astrologistsends people to him for performance of puja.He furtherdeposed that on 5th January 2014, Chandrabhan Sanap visitedhim on recommendation of Rajabhau Aher for performing pujaof Kal Sarp Yog and Ati Gandh Yog.The arrangements of stayof the accused were made by PW no.16 at his home and he hadTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 ::: 54 CONF_CASE_3_15.docalso brought his horoscope.The said extract of the register was seized inpresence of panch witness Ashok Kumar Pandey who isexamined as PW no.15 by the prosecution.The aforesaidwitnesses have thus been relied upon by the prosecution toestablish the conduct of the accused post-commission of theoffence.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::The prosecutionhas relied upon this witness who happens to be a chancewitness and who deposed about the presence of the accused onthe service road on the Expressway at morning hours on 5 thJanuary 2014 i.e. the date on which Esther landed at LokmanyaTilak Terminus but was untraceable.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::form of the seizure of the belongings of the deceased which shehad carried at the time when she left her hometown to proceedto her work place.The prosecution has examined PW-4 andPW-5 who are the panch witness to the disclosure panchnama.The accused made a statement that heis ready to produce the bag which Esther was carrying and theaccused has taken the said bag to Nashik and handover to oneelderly lady.A memorandum statement of the accused wasrecorded under a panchnama exhibited at Exhibit-44 and 44Aand PW-4 Abdul Satar Sayad Ali Shaikh has acted as a panchwitness on the said panchnama.The said disclosurememorandum laid to recovery of one trolley bag of black colourwith words "Skybag" endorsed on it.The said witness corroborated the disclosure statementleading to the discovery of the bag and depose before the Courtthat she was doing labour work and on one day when she wassitting near the public toilet, accused person, whom sheidentified on the V.C. Screen came there and asked her if shecan accept the said bag.She deposed there were clothes inside thebag and she sold it and kept the bag at Misrawada in a room.She handed over the bag to police when she was approached bythe police and identified the said bag of black colour whenshown to her at the time of deposition.Another circumstancerelied on by the prosecution is the recovery of the bag whichthe deceased was carrying and the bag and its contents wereseized at the instance of the accused on a disclosure statementbeing made by him and were seized from the sister's room ofthe accused.PW-5 Pradeep Shirodkar acted as a panch witnessto the said disclosure panchnamma at Exhibit- 81 and 81ATilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 ::: 59 CONF_CASE_3_15.docwhich led to seizer of certain articles belonging to deceasednamely:-::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::(i) An identification card of University College of Engineering (JNEU, Kakinada) bearing the deceased name;(ii) An used black and blue framed spectacles with a broken glass;All the said articles were placedin a plastic bag in the house belonging to the sister of theaccused and the articles came to be seized and marked asArticles.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::deceased Esther was forwarded for DNA Analysis in sealedparcels.Prosecution witness No.28 Shrikant Hanumant Lade,the Assistant Director in FSL Kalina Generated the DNA profilefrom the sweat detected on one Exhibit-L on the I-card andExhibit-L-2 spectacles he compared the same with the bonesamples of the deceased.The prosecution has thus establishedthat the said articles which were seized at the instance of theaccused belonged to the deceased Esther and these articles i.e.the identity card and the spectacles were identified by thefather of the deceased as belonging to Esther.The prosecution has also examined PW-14 SatyawanGawade who has acted as a panch to the panchnama executedfor seizure of the brassiere which was found on the body of thedeceased at the time of the conduct of postmortem.The saidbrassier came to be seized and the panchnama executed on17.01.2014 records that belt and hook of the brassiere wasbroken and it was having holes on it.The deceased was last seen in the company of theaccused in the CCTV footage drawn from the cameras fitted onthe LTT terminus station and she has been identified by theprosecution witness No.26 her father.The person whom shewas accompanying in the CCTV footage is identified byprosecution witness No.27 Hemant Dharma Koli who wasstaying in the area where the accused were residing.The prosecutionhas also relied on the Test Identification Parade where all theaforesaid witness have identified the accused as the person whowas present on the platform and whom the deceased hadaccompanied when she exited the LTT terminus.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::These aforesaid circumstances are relied upon bythe prosecution and which it has brought on record throughvarious witness.The investigating officers have been examinedin form of prosecution witness No.29, 30, 34, 35, 36, 37 andThe investigating officer has deposed before the Courtabout the details of the investigation including the recording ofthe various witnesses and forwarding of the material seized forChemical Analysis and also has thrown light on the seizertraced to the disclosure statement of the accused.PW-39 is theexecutive Magistrate who has conducted the postmortemreport and since the postmortem report in form ofmemorandum panchnama of Identification Parade was alsoaccepted through PW-56 at Exhibit-163, this witness was madeavailable for cross-examination at the instance of the accusedand was extensively cross-examined.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::record by the prosecution which we have carefully scrutinized,we would proceed to deal with the arguments of the learnedcounsel for the accused which came to be advanced byAdvocate Shri Pradhan.Learned counsel Shri Pradhan makes asubmission that the prosecution has failed to prove the guilt ofthe accused beyond reasonable doubt by bringing on recordcogent and reliable evidence.He submits that the prosecutioncase was based on circumstantial evidence, but according tohim, the events brought on record are bereft of any materialconnecting the accused to the crime.Referring to the evidencebrought by the prosecution on record, Shri Pradhan vehementlydisputes the case of the prosecution that deceased wassubjected to sexual harassment and that she was raped.By inviting our attention to the statein which the body was found and which, according to ShriPradhan, was completely in a decomposed state and wasTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 ::: 64 CONF_CASE_3_15.doccharred beyond recognition.Shri Pradhan would submit thatinjury to the private part which has been described to be thecause of death in the final opinion submitted by the Doctor isnot an inference based on any material.Shri Pradhan wouldplace heavy reliance on the testimony of PW 6, the panchwitness to the Inquest Panchnama who had categorically statedthat the body was half burnt and that the chest portion wascompletely burnt.According to him, the credibility of the saidwitness is doubtful since she states that she did not rememberthe material particulars.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::Further, he also makes a reference to the testimonyof the Medical Officer of the J.J. Hospital who conducted thepost-mortem i.e. Dr. Gajanan Chavan.He submitsthat in terms of Section 273 of the Code, all the evidence takenin the course of the trial or other proceedings shall be taken inthe presence of the accused or when his personal attendance isdispensed with in the presence of his pleader except asotherwise expressly provided.The submission of Shri Pradhanis that the said principle enumerated in the said section is tosafeguard the right of an accused to have a fair trial and hewould place reliance on the Report of 41st Law Commission ofIndia as regards Section 353 which is a reproduction of Section::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:26 :::The said judgment itself provides an answer to theobjection raised by the learned counsel Shri Pradhan.In light of aforesaiddevelopments, we do not find any flaw when the evidence inthe present trial was recorded through video conferencing.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::The submission of the Special P.P is to theeffect that the said certificate as contemplated under clause (4)of Section 65B of the Evidence Act is not a pre-requisite forconsidering it as an admissible evidence.35 We have considered the arguments of both thecounsel on the said point and we delved into the issue.Navjot Sandhu9 which had an occasion to consider an issue onproduction of electronic record as evidence in form of print outsof the computer records of the calls pertaining to the cellphones, the three Judges Bench made following observations:::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--(a) identifying the electronic record containing the statement and describing the manner in which it was produced;(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 80 CONF_CASE_3_15.doc::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::The Hon'ble Apex Court was called upon to deal withan apprehension expressed on the question of applicability ofconditions under sub-section (4) of section 65B of the EvidenceAct to the effect that if a statement was given in evidence, acertificate was required in terms of the said provision from aperson occupying a responsible position in relation to operationof the device or management of the relevant activities.In thisbackdrop, the Apex Court made the following observations.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::The Hon'ble Apex Court has, therefore, clarified the legalposition on the subject of admissibility of electronic evidence inabsence of the certificate contemplated under Section 65B(4) ofthe Evidence Act being produced and has clarified that a partywho is not in possession of device from where the document isproduced, such party cannot be required to produce theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 83 CONF_CASE_3_15.doccertificate under Section 65B(4) and the applicability of therequirement of certificate being merely procedural can berelaxed.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::We are unable to accede to theargument of Shri Pradhan to declare that the law laid down inShafhi Ahmed is per incuriam for, in our opinion, it is not uponfor us to access whether it is so since we are bound by the ratioof the said judgment which gets clearly attracted in the facts ofthe present case.37 The witness examined by the prosecution on thesaid point i.e. Prosecution Witness No.31 who was working inthe CCTV department of the Central Railway has deposedTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 84 CONF_CASE_3_15.docbefore the Court about the operation and the mechanism ofautomatic recording system on the LTT Railway Station.He hasclearly deposed that there are two monitors covering 20 and 16cameras respectively which are fixed on all the platforms andinside the rooms.He had categoricallydeposed that the footage was collected in January 2014 withthe permission of the RPF and which was transmitted to thepolice officials from Kanjur Marg Police station in a pen drive.The said evidence is corroborated by the testimony of PW no.33who was on duty in RPF who was responsible for the security ofthe Lokmanya Tilak Terminus and for ensuring the security, hedeposed before the Court that 36 CCTV cameras were installedon railway station.The said witness also corroborated that thedisplay of the said cameras is in the CCTV control room and themaintenance of CCTV cameras was given to a private company.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::This witness has given the date on which the police hadapproached the RPF and the said date is disclosed as '18 thJanuary 2014'.After obtaining the permission from the RPF,instructions were given to Shri Pandey who was responsible formaintenance of the CCTV cameras to give the footage to theInvestigating Officer.A specific question was put to this witnessas to whether there was any fault in the CCTV server during thesaid period and he deposed that on 18th January 2014 therewas the fault and the server was not working on account offluctuation in electricity and therefore, Shri Pandey was calledfor maintenance.Perusal ofthe panchnama would disclose the detailed procedure that wasfollowed for transmitting the data in the pen drive, and it wasensured that the said pen drive was blank, and thereafter, itTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 86 CONF_CASE_3_15.docalso describe the folders that were retrieved from two DVRs i.e.DVR1 and DVR2 and how it was downloaded and transmitted.The entire procedure being enumerated in the panchnama, wedo not have any hesitation to hold that it was not susceptiblefor any intervention as the cameras affixed on the LTT wererecording the events and storing it as a part of its regularactivity and it was being fed into the hard disk in the ordinarycourse of the said activities.We have perused the cross-examination of the said witnesses, which, in any way, do notshake the credibility of the witnesses as far as the technicalprocedure described by the said witnesses and the witnesseshad categorically admitted that the hard disk was never seizedby the police, but what was transmitted was the data from thetwo DVRs.In such circumstances, we do not find merit in thesubmission of Shri Pradhan that the electronic evidence reliedon by the prosecution do not stand the scrutiny of Section 65Bof the Evidence Act.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::38 Shri Pradhan also makes a serious complaint thatthe learned Sessions Judge has completely thrown to air theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 87 CONF_CASE_3_15.docprocedure for conduct of a criminal trial.Shri Pradhan hasinvited our attention to certain dates and specifically theroznama dated 20th November 2014 when the accused was notproduced in person and when he was called on videoconferencing, it was informed by the jail authority that he wassuffering from Tuberculosis and is hospitalized and grievance isthat in his absence the trial was conducted.We have carefullyperused the roznama and we have noted that on occasions, theaccused was produced from Judicial Custody and whenever thiswas not done, he was produced through video conferencing.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::We have carefully perused the roznama of theproceedings which forms part of the paper book.From theperusal of the proceedings dated 13th November 2014, we havenoted that an application was filed by the Advocate for theaccused for adjourning the case till the accused gets propermedical treatment.The learned Sessions Judge in thisbackdrop observed that direction was already given foradministering proper medical treatment to the accused and hewas taken to Sir J.J. Hospital and therefore, there was no needto adjourn the case.On an application filed for giving properTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 88 CONF_CASE_3_15.docmedical treatment, since the accused was suffering from fever,cold, cough and body pain, directions were issued by the Court,and he was taken to Sir J.J. Hospital and his blood sample wasalso collected and it was suspected that he was suffering fromTuberculosis.The Court therefore, gave directions to theconcerned Medical Officer to get him properly examined andthereafter, he be treated further for the ailment.On thesubsequent date i.e. 14th November 2014, the accused wasproduced from the jail and he complained about ill-health.On20th November 2014, accused was not produced from JudicialCustody but the witnesses were present.Application foradjournment was filed on behalf of the accused.When he wascalled on video conferencing, it was informed that he wassuffering from Tuberculosis and he was hospitalized.Thelearned Addl.Sessions Judge record that the counsel for theaccused came at 12 noon and sought an adjournment andsubsequently moved an application for adjournment and hestated before the Court that he would proceed with him only inpresence of the accused and he was not ready to proceed in hisabsence.The witness also stated before the Court thatTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 89 CONF_CASE_3_15.docsomebody had approached him yesterday and even it wasinformed by the police officials that the accused is trying toapproach the witnesses to tamper with the evidence.TheCourt, therefore, issued directions after recording the statementof witnesses that somebody had tried to approach him.It appears that on 24 thNovember 2014, the accused was not present from JudicialCustody since he was undergoing treatment and hospitalized,but on the said date, when two witnesses i.e. PW No.8 and PWNo.9 were examined, the Advocate for the accused was presentand he cross-examined both the witnesses on the said date.However, thereafter, on 3rd December 2014, the accused wasproduced on video conferencing.The Court hasclearly noted in its next order dated 12th December 2014 passedbelow Exhibit 94 on an application for meeting his father whoTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 90 CONF_CASE_3_15.docwas on death-bed.When we have carefully gone through the record, wehave noted that barring two dates, i.e. 20th November 2014 and24th November 2014, the accused was produced either fromvideo conferencing or from Judicial Custody and in his absencesince he was hospitalized, his counsel was present and hadwillingly cross-examined the witnesses.In the backdrop of theaforesaid facts, we do not find any merit in the submission ofShri Pradhan that the proceedings against the accused arevitiated on account of his non-production on certain dates.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::Shri Pradhan also took an objection to the relianceon the evidence of PW No.9 in form of extra-judicial confession.He submits that it cannot form the basis of conviction and itsreliance is unsustainable.It is no doubt true that evidence inform of extra-judicial confession is a weak piece of evidenceand the Court must ensure that it inspires confidence and itnecessarily needs a corroboration by other prosecutionTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 ::: 91 CONF_CASE_3_15.docevidence.The extra-judicial confession withstand the scrutiny,must be voluntary and inspiring confidence.The admissibilityand evidentiary value of such a confession is by this time well-settled and the Hon'ble Apex Court in case of Sahadevan andAnother v. State of Tamil Nadu10, observed thus :::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:27 :::(iii) A partly burnt decomposed body was found on 16 th January2014 near the service road of Eastern Express Highway nearKanjur Marg which came to be identified by PW no.26 as to be ofhis missing daughter Esther.(iv) The post mortem report establish that the death of thedeceased was homicidal and there was injury to her private parts,thereby establishing that she was raped.(v) The Inquest Panchnama and Post Mortem report establishthe the body was partly burnt and attempt was made to destroythe evidence by burning the body.(vii) The CCTV footage collected from the LTT Railway stationdisclosed that the accused was loitering on the platform at 4:50am(viii) In the CCTV footage it is seen that the deceased hadaccompanied the accused while leaving LTT and she was last seenin the company of the accused in the footage.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::(viii) The accused was seen near the spot on the Eastern ExpressHighway with the trolley bag and a bag pack belonging to thedeceased.(ix) The circumstance of the accused seen along with thetrolley bag in the morning on the date of incident by PW 13leaving the building.(x) The subsequent conduct of the accused i.e. going tothe Astrologer and performing a puja in order to wash off the sincommitted on a woman and the entry in the register of PW 17establishing that he has paid an amount of Rs.3,000/- forperforming the said puja.(xi) Articles 22, 23 and 24 belonging to the deceased wereidentified by PW No.26 came to be recovered at the instance of theaccused along with her articles i.e. identity card, spectacles, hereye-liner, pencil and the DNA Test confirm that it belonged to thedeceased.(xii) The accused in his extra-judicial confession to PW 9had disclosed that he had poured petrol on the dead body ofEsther and set it on fire after committing rape and on killing her.(xiii) The medical examination of the accused about hispotency test and mental health.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::which has been brought by the prosecution on record has beenestablished by cogent and reliable evidence in form of oral anddocumentary evidence.The above circumstances and the chainof events is complete with regard to the commission of crime inquestion leading to death of Esther.The cumulative effect ofthe entire prosecution points unmistakable towards the guilt ofthe accused.42 The prosecution has also proved the circumstance ofthe deceased last seen in the company of the accused.Theprosecution witness no.26 - father of the deceased hasidentified the deceased in the CCTV footage whereas PW 27Hemant, a person staying in the area where the accused wasresiding has identified the accused in the CCTV footage of theplatform to be the accused.The prosecution has relied on theevidence of PW No.21 Ganesh Shetty working as Pay and ParkTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 100 CONF_CASE_3_15.docSupervisor at Kurla Terminus who had seen the accused anddeceased leaving together on motorcycle on 5 th January 2014.The said witness has also identified the accused during the TestIdentification Parade conducted in Arthur Road jail.Throughthe said witness, the prosecution has established that thedeceased alighted at LTT in the morning hours on 5 th January2014 and she left the railway station along with the accused onhis motorcycle.The prosecution has thus pressed into servicethe last seen theory which comes into play where the deceasedis seen lastly in the company of the accused and where the timegap between the point of time when the accused and thedeceased was last seen alive and when the deceased is founddead, is so small that the possibility of any person other thanthe accused being the author of the crime becomes impossible.By invoking the said doctrine of last seen together, the burdenof proof then shifts to the accused requiring him to explain as tohow a live person became a deceased and at what point of timedid he part with the company of the deceased since they werelast seen together.In case of Trimukh Maroti Kirkan Vs.Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 101 CONF_CASE_3_15.docState of Maharashtra12, the Hon'ble Apex Court observedthus :::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::12 (2006) 10 SCC 681Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 102 CONF_CASE_3_15.doc Illustrations::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.(b) A is charged with travelling on a railway without a ticket.The burden of proving that he had a ticket is on himThe accused has failed to discharge the said burden.In State of Maharashtra Vs.Suresh14, the ApexCourt has observed thus :"when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him.In a situation like this such a false13 (2012) 11 SCC 20514 (2000) 1 SCC 471Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 103 CONF_CASE_3_15.doc answer can also be counted as providing "a missing link" for completing the chain.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::When the prosecution has proved its case beyondreasonable doubt and the accused has expected to furnish someexplanation to the incriminating circumstances which havecome in evidence and put to him.A false explanation may becounted as providing a missing link for completing the chain ofcircumstances and a non-explanation would also be taken as alink for completing the chain of circumstances.44 In Munish Mubar Vs.State of Haryana15, wherethe Act was dealing with a case where the dead body of thedeceased, an NRI was found lying in a plot of land havingmultiple injuries and the boarding card issued by the JetAirways and one blood stained hammer and a knife was foundnear her body.The appellant who claimed to be arrested whiletravelling in a Santro car and the Investigating Officer collectedthe records related to parking of the said Santro car at therelevant time from car parking stand of New Delhi Airport.Theappellant upon his arrest made a disclosure statement to the15 (2012) 10 SCC 464Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 104 CONF_CASE_3_15.docpolice to show the place where he had disposed of the deadbody of "A" and recovered the articles belonging to and theblood stained clothes of the deceased.The call record of theappellant's telephone were also pressed into service to establishthat he was present in the vicinity of the place of occurrence.The appellant failed to offer any explanation in respect of theincriminating circumstance associated with him.The Apexcourt then held that it was the duty of the appellant to furnishsome explanation in his statement under Section 313 of theCode of Criminal Procedure and under what circumstances, hiscar had been parked at Delhi Airport and it remained there forthree hours on the date of occurrence during exactly the timeperiod in which the deceased was to arrive and was thenallegedly done to death by the appellant.Appreciating the caseof the prosecution based on circumstantial evidence, when thecircumstances were fully established and found to be consistentwith the hypothesis regarding guilt of the accused, the Hon'bleApex Court dismissed the Appeal filed by the appellant on theground that the prosecution had proved its case beyondreasonable doubt.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::service several circumstances, each being independent andconclusive.Each of the circumstances relied on by theprosecution being taken together form a chain of events leadingto the accused being the perpetrator of the crime and each andevery circumstance was put to the accused while beingexamined under Section 313 of the Code.The accused hasanswered every question put to him by asserting that he did notknow or that the circumstance put to him was false.On askedas to why the witnesses are deposing against him, he respondedto Question no.378 by saying that on say of the police, thewitnesses had deposed against him.The accused had relied on three witnesses asdefence witnesses.The first witness relied on by theprosecution is one Abhijit Dattatraya Sathaye working as SeniorAssistant Editor with Mumbai Mirror.The said witness haddeposed that he had covered Esther Anuhya murder case fromthe time of registration of the offence till the filing of thecharge-sheet.The extract of Mumbai Mirror has been exhibitedTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 106 CONF_CASE_3_15.docas Article 40 which had published the photographs of theaccused along with a kundli.He deposed that he had obtainedthe photograph of kundli from his friends and it came to bepublished in the newspaper.The said Article 40 alsohighlighted the criminal antecedents of the accused and whichdescribed him as history-sheeter, being indulged into activity ofbag lifting in railway.The said witness being subjected tocross-examination by the prosecutor admitted that the accusedwas history sheeter and bag lifter in the railway and many caseswere registered against him in Gowandi, Nasik, Manmad andMadhya Pradesh.Another witness which the accused hasexamined is Defence Witness No.2 and is the senior crimereporter in Mid Day Newspaper who had published thephotographs of the accused, victim and the witnesses.Article41 which carried a news about the incident was also placed onrecord during the said witness.Another reporter of Mid-DaySagar Rajput came to be examined as D W no.3 who hadpublished the photograph of the accused, parents and wife inthe newspaper dated 8th March 2014 and the name of theaccused was disclosed as Chandrabhan Sanap.He deposed that the CallDetails Record (CDR) of Phone No. 9833841248 in the name ofNandkishore Sahu was given by him to the police and he hasgiven a certificate under Section 65B of Evidence Act. The saidwitness has been cross-examined by the learned Prosecutor whohad deposed that from 12th February 2014 to 2nd March 2014,there was no phone call or SMS delivered from the said mobileand since the mobile was not active, it cannot be said whetherits location was Mumbai or out of Mumbai.However, it isadmitted by the witness that on 6th January 2014, Sahureceived phone call from Mobile No.7775853547 and two callswere received on 8th December 2014 from the same number.The cross examination of the defence witness only lead to theconclusion that the said witnesses examined by the accused inno way come to his rescue nor have they been able to demolishthe prosecution case based on circumstantial evidence.Theonly attempt on the part of the accused was to establishthrough the DW No.1 to DW No.3 is that the face of theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 108 CONF_CASE_3_15.docaccused was known to the general public and it was all overpublished in the newspaper and that is how Shri Pradhanmakes a feeble attempt to argue before us that the TestIdentification Parade conducted is faulty and cannot be reliedon by the prosecution.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::46 The specific submission advanced by Shri Pradhanis that the evidence of Prosecution Witness No.39 and the cross-examination of this witness who conducted the TestIdentification Parade exposes the case of the prosecution.Thesaid witness who conducted the Test Identification Parade wassubjected to exhaustive cross-examination.He deposed beforethe Court that he was conversant with the guidelines whileconducting the Test Identification Parade and accordingly, hehas mentioned the procedure followed by him in theMemorandum.He had admitted that there was a lapse on hispart to mention in the panchnama that unauthorized personswere not present at the time of Test Identification Parade.Theextensive cross-examination of the said witness do not yield anybenefit to the accused.Though certain procedural lacunae haveTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 109 CONF_CASE_3_15.docbeen attempted to be drawn from the said witness, it does notshatter the testimony of the said witness.In any contingency,the law as regards the Test Identification Parade and thereliance on such evidence is settled by now.Test IdentificationParade has been considered as merely a corroborative piece ofevidence and not substantive evidence.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::Above-mentioned decisions would indicate that while the evidence of identification of an accused at a trial is admissible as substantive piece of evidence, would depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::Further, such conduct of Test Identification Parade may lose itsworth if the witnesses either know the accused or if they havebeen shown his photographs or if he has been exposed by themedia to the public.Holding a Test Identification Parade onlyassist the Investigating Agency to ascertain whether theTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 111 CONF_CASE_3_15.docinvestigation is being conducted in a proper manner and in aproper direction.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::48 The evidence brought on record by the prosecutionthus establishes its case beyond reasonable doubt.Though Mr.Pradhan has invited our attention to the extensive cross-examination to which the prosecution witnesses were subjectedto, he was not able to pinpoint from their cross-examinationthat the credibility of these witnesses is doubtful and that theyare not trustworthy.The evidence adduced during the courseof trial needs to be appreciated cumulatively and in its correctand true perspective.It is the duty of the Court to unravel thetruth and while appreciating the evidence its primary attemptshould be to sift the chaff from grain and to ascertain from theevidence brought on record as to whether there is a ring oftruth in their testimony.Where the evidence brought on recordis consistent and corroborated by other piece of evidence, then,there is no reason as to why version of prosecution case, asunfolded, be not believed.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::appearing on both sides, our attention was painstakingly drawnto the extensive and exhaustive cross-examination of all thewitnesses.We must note with great responsibility thatthough burden of proof to prove the guilt of the accused lies onthe prosecution and in a case based on circumstantial evidence,the prosecution is duty bound to prove the existence of eachfact independently and taken together which would lead tochain of circumstances, through the prosecution witnesses whowould prove a particular fact and these prosecution witnessescan be subjected to cross-examination.Section 137 of theIndian Evidence Act, 1872 permits the cross-examination of awitness by the adverse party who has been called and who hasdeposed before the Court.However, the purpose of cross-examination being to attack the credibility of witness who isdeposing before the Court and though at times its object is toascertain the truthfulness of these witnesses, it is also rule ofprudence and also contemplated under Section 149 of theIndian Evidence Act, 1872 that witness should not be subjectedTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 114 CONF_CASE_3_15.docto such questions unless the person asking it has reasonablegrounds for thinking that the imputation which it conveys iswell founded.The purpose of questions which may be lawfullypermitted in cross-examination and which are set out in section146 of the Indian Evidence Act, 1872, are any questions whichtend to test his veracity, to discover who he is and what is hisposition in life or to shake his credit by injuring his character.In respect of some of thewitnesses, like PW-16 and PW-17, namely, the Astrologer andPriest, learned Sessions Judge has noted that the evidence ofthese witnesses does not create any incriminating fact inTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 ::: 115 CONF_CASE_3_15.docconnection with the offence with which the accused is chargedand there is no reason for the police to fabricate such a piece ofevidence after going to such a far-off place to the scene ofoffence and its occurrence.Panch-witnesses whose credibilitywas attempted to be destroyed by subjecting them to seriouscross-examination, also did not result into any shadow beingcast on their credibility.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:28 :::"In each and every case it is not incumbent on the prosecution to prove the motive for the crime.If the prosecution is able to prove its case on motive, it will be corroborative piece of evidence.But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of the prosecution case.Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution.In the present case, absence of convincing evidence as to motive makes the Court to circumspect in the matter of assessment of evidence"Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 ::: 117 CONF_CASE_3_15.doc Once we have concluded that prosecution on thebasis of the medical evidence brought on record has proved thatthe deceased was subjected to rape and the accused was triedfor the offence punishable with rape, we do not think that themotive of the accused in committing the crime needs to beexclusively spelt out.It is obvious that the accused who afterdrinking liqour was wandering the whole night and spotted onthe railway platform in the early hours and on seeing a younglonely helpless woman, who easily fell prey to his concoctedstory of offering to drive her to destination and who took her tothe secluded spot from where the body was recovered in ahighly decomposed state, we need not to find motive forcommitting the crime with which the accused was charged.52 Mr Pradhan was severally critical about the mannerin which the test identification memorandum was exhibitedduring the course of trial.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 :::In anycontingency, Mr. V.J. Kanekar, the Resident Deputy Collectorwho had conducted the test identification parade was broughtinto witness box and since the document in the form ofmemorandum panchanama was already exhibited, he was notexamined by the prosecution; but at the same time opportunitywas afforded to the accused to cross-examine him.In the cross-examination, the witness has re-iterated the fact that he hadfollowed the procedure stated by him in the memorandum.Hehas withstood the scrutiny on the manner in which the cross-examination has been conducted and Mr. Pradhan has failed topoint out any legal infirmity in conducting of the testidentification parade which would nullify its effect.54 It is not now strange to note that the crimes andspecially the crimes against the society are duly reported by theprint media as well as the electronic media.When such crimesare reported, all the details of the investigation even when inTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 ::: 121 CONF_CASE_3_15.docprogress is frequently reported including the photographs of thesuspect or the accused.Whenever a person is arrested as asuspect and before he is converted to an accused, the media isall out with the details of investigation and some times, at thecost of investigation.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 :::55 On being satisfied with the case of the prosecutionwhich has established the factum of commission of the crime bythe accused, which involved extreme depravity and reflective ofunrestrained selfishness, which conserves the individual interestand the ultimate tendency of the accused, we come to the issueof imposition of death penalty on the accused.The learnedAddl.The learned Judge has taken intoconsideration the mitigating circumstances put forth i.e. theabsence of direct evidence, accused being of young age,absence of criminal antecedents, his diagnosis for Tuberculosisand he being the sole earning member in the family on whomhis wife, children and old mother are dependent on.Anothermitigating circumstance in form of the subsequent conduct ofthe accused while undergoing the sentence was also pressedinto service and it was attempted to canvass that there was nocomplaint against him from the jail authorities during the19 AIR 1980 SC 989Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 ::: 123 CONF_CASE_3_15.docperiod of under trial detention.The learned Judge has givendue consideration to the said mitigating circumstance as againstthe aggravating circumstances which were noted to be asfollows:-::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 :::(a) Offence committed in a pre-planned and diabolical manner with exceptional brutality and depravity.(c) the incident has caused a stir in the society and shocked its collective conscious.HareshTilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 ::: 124 CONF_CASE_3_15.docMohandas Rajput Criminal Appeal No.1020 of 2001 decidedon 11th January 2008 wherein the following observations weremade :::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 :::It degrades and humiliates the victim and leaves behind a traumatic experience.It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female.The courts are, therefore, expected to try and decide cases of sexual crime against women with utmost sensitivity.(6) That the accused acted under the duress or domination of another person.::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:29 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:30 :::::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:30 :::35 It can hardly be even imagined that what torture and brutality the minor child must have faced during the course of commission of this crime.All her private parts were swollen and bleeding.She was bleeding through her nose and mouth.The injuries, as described in EX.P17 (the post mortem report) shows the extent of brutal sexual urge of the accused, which targeted a minor child, who still had to see the world.He went to the extent of giving bites on her chest.Appeal No.1563-1564/18::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:31 :::"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts.(SMT.BHARATI H. DANGRE, J.) (RANJIT V. MORE, J)Tilak ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:07:31 :::

Cited provisions: Section 302 in The Indian Penal Code; Section 201 in The Indian Penal Code; Section 397 in The Indian Penal Code; Section 313 in The Indian Penal Code; Section 376 in The Indian Penal Code; Section 457 in The Indian Penal Code; Section 380 in The Indian Penal Code; Section 392 in The Indian Penal Code