i. Complainant Aniket Shankarrao Deshpande was resident of Purwa Apartment situated at Ahinsa Nagar, opposite Akashwani, Aurangabad and was serving in Sterlight Technology Company situated at MIDC Waluj, Aurangabad.Mansi 21 year old sister of Aniket was residing with him.She was studying in IInd year B.C.S. in MGM College, Aurangabad.At the time of incident their father was posted at Shrinagar.Aniket was to return home from work at 07:00 pm.He could not return on time as some problem had cropped up in one machine and he was required to over stay in the company to attend the problem of machine.Aniket came back home on 12th June, 2009 at 05:00 am.He ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 7 Cri.Appeals 516, 281 n 468 of 2012.odt called Mansi on her mobile at around 05:00 am.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::receive any response from Mansi so again he phoned her.He thought that Mansi might be fast asleep and her mobile battery might have discharged.So instead of disturbing Mansi he went to the house of his friend Vivek Agrawal who was residing in Bhagyanagar at Aurangabad.Till 09:00 am to 09:30 am Aniket slept at the house of his friend.By that time Vivek had already left to his workplace.Aniket then locked the door of the house of his friend and came to his house at around 10:00 am.Aniket noticed that house was closed from inside.He knocked the door and also called his sister on phone but he did not receive any response.After few minutes as the door was not opened Aniket suspected something wrong and went down stair to the house of owner ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 8 Cri.Appeals 516, 281 n 468 of 2012.odt Bankar Patil.Aniket was staying on the first floor.He informed the owner of the house that he wanted to climb from the grill of their Varandha in order to go to his house.Then he climbed the grill and went to the gallery of his flat.He noticed that door of the room attached to balcony was opened.He entered the drawing room and then to bedroom of Mansi.Aniket was shocked to see Mansi lying on the bed in injured condition.Her hands were tied with wire of headphone of mobile and legs were died with big scarf of Mansi.Aniket found bed-sheet covered around her face.He removed the bed-sheet and saw no clothes on her person.He noticed injury to her neck and profused bleeding.A screw driver and a scissor were lying there.Many articles in the house were found scattered.Appeals 516, 281 n 468 of 2012.odt Aniket.She called other neighbourers.Aniket called his friend Vivek Agrawal and Vishal for help.He asked Mr. Khadke who was providing tiffin to him and residing in the next apartment, to come with doctor immediately.Mr. Khadke then came with doctor.In the meanwhile Police were informed.Police also rushed to the house.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Doctor examined her and declared that she died before 3-4 hours.Aniket lodged report with the police station.Crime No.65 of 2009 was registered at Jinsi Police Station under Section 302 and 201 of the Indian Penal Code.Police took dead body in custody.It was sent for postmortem to Ghati Hospital.Before referring the dead body for postmortem, inquest Panchanama was drawn by P.S.I. Akmal in the presence of Panch witnesses.P.S.I. Akmal seized black mobile, one scarf, one T-shirt, one blood stained bracier under separate Panchanama.Inquest ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 10 Cri.Appeals 516, 281 n 468 of 2012.odt Panchanama and seized articles were handed over by P.S.I. Akmal to PW-32 Investigating Officer Sopan Borse.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::PW-32 P.I. Sopan Kisan Borse was entrusted with the investigation of crime.He visited the spot.At the time of recording scene of occurrence Panchanama, blood stained bed-sheet, scissor, screw driver, green Salvar and a nicker were seized.Photographs were taken.Statements of witnesses were recorded.On 13th June, 2009, blood sample of Mansi, pubic hair, vaginal swab preserved by Medical Officer at the time of performing postmortem, viscera and seized clothes of Mansi were sent to Forensic Science Laboratory Mumbai for analysis and DNA test to find out whether girl was ravished.During investigation supplementary statement of Aniket was recorded.In his supplementary statement Aniket informed Police that Mansi was ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 11 Cri.Appeals 516, 281 n 468 of 2012.odt having a mobile phone and he did not find her mobile phone in the room.A.P.I. Gautam Patare attached to Chavni Police Station was conversant with cyber crimes.Three teams were formed for further investigation.It was revealed that Mansi had purchased mobile from Zee Corner Mobile Shop.Statements of PW-6 Sheetal Satish Sonawane friend of Mansi who accompanied her to purchase a mobile and mobile shop owner PW-18 Abdul Rauf came to be recorded.A receipt regarding purchase of mobile by Mansi was collected.A.P.I. Patare obtained information from Airtel company on the basis of IMEI number mentioned on the receipt regarding purchase of mobile.From IMEI number of mobile of Mansi, it could be revealed that said IMEI number was visible on the mobile having simcard number "9503667292".From tower location A.P.I. Patare could also know the spot from where mobile was being used.It was from hotel Pancham.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt x. A.P.I. Patare then visited hotel Pancham.Accused No.2 Pradip Chandaliya was present.Mobile was seized from Accused No.2 under seizure Panchanama.Accused No.2 Pradip Chandaliya was interrogated regarding possession of mobile with him.Accused No.2 informed police that his son Mayur had given a simcard to him and a customer Jawedkhan @ Tingrya gave him the mobile towards a bill of his hotel.Information in respect of mobile purchased by Mansi as per the receipt exactly tallied with the mobile seized from Accused No.2 Pradip Chandaliya.Before arrest, Investigating Officer confirmed from Jawedkhan whether he had given the mobile to Pradip Chandaliya.Jawedkhan admitted that he gave mobile to ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 13 Cri.Appeals 516, 281 n 468 of 2012.odt Pradip Chandaliya.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::After arrest Accused Jawedkhan was interrogated.During interrogation it could be revealed that gold ring of Aniket which was found missing from the house was given by Jawedkhan to Accused No.3 Ram Bodkhe against some dues which Accused Jawedkhan owed to Ram Bodkhe.Accused No.1 Jawedkhan was referred to Ghati Hospital for medical examination.Medical Officer was requested to take his blood, pubic hair, semen sample and nail clippings.Investigating Agency could recover the clothes of Jawedkhan at his instance which clothes he was wearing at the time of commission of offence.Those clothes were concealed in garbage just in front of the spot of incident.Accused No.3 Ram Bodkhe gave statement to recover gold ring received by him from Accused Jawedkhan.At the instance of Accused No.3, gold ring of Aniket was recovered from a room of electric motor near Tulsi Chambers.Its seizure Panchanama was recorded.It appears that after the incident Accused Jawedkhan changed his clothes and wore clothes of Aniket.He had shown his readiness to produce those clothes hidden in the garbage near Tapadia Natyagraha.Memorandum of Accused Jawedkhan was accordingly recorded and clothes of Aniket were recovered at the instance of Accused Jawedkhan.In the present case to prove homicidal death Prosecution has placed strong reliance on medical and circumstantial evidence.So far as factum of homicidal death is concerned, evidence of PW-25 Dr. Anand Bassaiya Mugadalimath and PW-30 Dr. Sachin Gade is important.On 12th June, 2009 Dr.Mugadalimath was attached to Forensic Science Department Government Medical College and Hospital, Aurangabad.Dead body of Mansi Deshpande was brought to the hospital by Jinsi Police.5) Stab wound over neck anteriorly over mid line irregularly slit shaped, horizontally placed of size 3.5 cm x 0.5 cm x cavity deep on approximation 3.9 cm, margin irregular, contused blood infiltrated both angles blunted.9) Two contusions over upper medial of quadrant of left breast, upper contusion have 2 arches of size 4.5 cm each with concavity downwards & distance between two arches is 2 mm.Lower contusion have single arch with concavity upwards and 5 cm long.Both contusions are reddish in colour.10) Contusions over both ala of nose, irregular in shape and reddish.11) contusions over both lips whole length, irregular in shape and reddish.12) Laceration of frenulum of upper lip, margins irregular contused & blood infiltrated.13) Two stab wounds over right side of chest laterally of size 2 cm x 1 cm x cavity deep and 4 cm x 1 cm x cavity deep, on approximation 2.4 cm and 4.4 cm in length, irregularly oval in shape, margins - irregular contused and blood infiltrated with tailing posteriorly and anterior angles rounded and both placed horizontally.Direction of stab wound - Anteriorly downwards.19) Two stab wounds over left gluteal region laterally of size 0.5 cm x 0.5 cm x cavity deep and 0.2 cm x 0.2 cm x cavity deep, separated by 0.3 cm, irregularly oval, on approximation 0.8 cm x 0.3 cm in length, margins irregular, contused and blood infiltrated, both angles blunted.On dissection tract of stab wound - skin - subcutaneous tissue.Direction of stab wound - Anteriorly downwards.20) Two stab wounds over left gluteal region ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 22 Cri.No evidence of fractures of Hyoid bone.No evidence of fractures to cricoid and thyroid lactilages except stab injury as mentioned in injury no. (5).On internal examination and dissection of neck, doctors found evidence of haemorrhage in all strap muscles.Petechial haemorrhage above and below Epiglottis and larynx was noticed.Appeals 516, 281 n 468 of 2012.odt Hymenal remnants seen at places.There was loss of rugosity of vaginal wall.There was also found contusion on the vaginal wall anteriorly lower 1/3rd reddish in colour.On internal examination they noticed as follows -"Uterus of size - 6 cm x 4 cm x 2.5 cm of weight 50 grams.On opening blood clots seen.Cervix closed transversly slit like.Ovaries and fallopian tubes normal."The entire evidence of Dr. Mugadalimath and Dr.Mugadalimath, could not bring on record anything adverse affecting the reliability of medical evidence.In addition to medical evidence, prosecution has relied upon uncontroverted inquest panchanama (Exhibit 31), photographs (Exhibits 35/1 to 35/5) of the spot taken by PW-3 Baburao Sitaram Batade and spot panchanama (Exhibit 29).So far as inquest panchanama is concerned, PW-32 P.I. Borse deposed that P.S.I. Akmal had drawn inquest Panchanama (Exhibit 31) and seized various articles from the spot vide seizure Panchanama (Exhibit 30).In respect of photographs, evidence of PW-3 Baburao Sitaram Batade would be relevant.Baburao Batade (PW-3) was running Paras Photo Studio at Kailashnagar, Aurangabad.She answered her examination and being holidays was staying alone when Aniket was attending his office.It is stated by Aniket that on 11th June, 2009 at around 09:00 am he left for the office.Mansi was alone in the house.He was to return home at about 07:00 pm.Due to some problem in a machine, he was required to over stay and came home at around 05:00 am on the next day.Before coming home Aniket called Mansi on her mobile phone.The mobile was switched off.After reaching home he knocked the door for 5 to 10 minutes.Thinking that Mansi might be fast asleep he went to the house of his friend Vivek in Bhagyanagar at Aurangabad and slept there.He woke up at 09:00 to 09:30 am.By that time Vivek had already left for the work.He locked the door of the house of Vivek and came to ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 28 Cri.The flat of Aniket was on the first floor.He came down stair to the house of owner Bankar Patil and told him that he has to enter his house by climbing the grill of their Varandha.Then he climbed the grill and went to the gallery of his flat.He saw door of room of balcony opened.Then he entered the drawing hall and bedroom of Mansi.He found that hands of Mansi were tied with wire of headphone of mobile.Her legs were tied with a big scarf.Her face was covered with a bed-sheet.He removed bed-sheet and saw that body of Mansi was stiff and she was not talking.No clothes were found on her body.He also saw injury to her neck and profused bleeding.Many articles in the house were lying scattered.A screw driver and scissor were lying there.He got frightened and immediately rushed to neighbourer Mrs. Soni.Aniket then states that Mrs.Soni accompanied him.After seeing Mansi she started calling Mrs. Bankar.Aniket phoned his friends Vivek and Vishal for help.He requested Mr. ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 29 Cri.Appeals 516, 281 n 468 of 2012.odt Khadke residing in front of the house and who was providing tiffin to them to call the doctor immediately.Mr. Khadke came with doctor within 10 minutes.Police also reached the spot.Doctor examined Mansi and declared her dead.Vivek Agrawal was serving in Sterlight Company, MIDC Waluj, Aurangabad as Deputy Manager.Complainant Aniket was serving in the same company.It appears from the evidence of PW-1 Vivek that on 11 th June, 2009 he had been to company in the morning.Aniket also joined duty at about 09:30 am.It is further stated by PW-1 Vivek that on the next day at around 05:30 am Aniket rang the door bell of his house.He opened the door.Thereafter, Aniket went to sleep in a room.PW-1 Vivek also went to sleep in his room.According to Vivek at around 08:45 am he left the home for office.That time Aniket was sleeping.At 09:30 am he received phone call from Aniket informing that his sister Mansi was raped.PW-1 Vivek then rushed to the house of Aniket.He saw people gathered near his house.He also saw that both the hands of Mansi were tied with wire of headphone and legs were tied with clothes.Many household articles were lying scattered in the room.Appeals 516, 281 n 468 of 2012.odt She stated that on 12th June, 2009 at around 09:00 am she heard that Mansi was murdered.She had gone to the house of Mansi and learnt that mobile phone, gold ring, cash and pant of brother of Mansi were stolen.Mansi was student.From the evidence of PW-2 Vaishali it can be seen that Aniket and Mansi only two persons were residing in the house and incident of theft and murder had taken place.This witness was not cross-examined by the Accused.Next important witness is PW-4 Shanta Rameshwar Soni to whom Aniket had rushed for help after seeing Mansi lying injured in pool of blood.According to PW-4 Shanta Soni on 12 th June, 2009 at around 05:30 am she opened the door of her house.She saw Aniket knocking the door of his house.She asked Aniket not to knock the door as his sister would get up.Aniket told PW-4 Mrs. Soni that he returned home after attending night duty in the office.PW-4 Mrs. Soni told Aniket that he should wait for some time as Mansi might be sleeping.She asked Aniket to sit in her house and went for plucking flowers.PW-4 Mrs. Soni stated that when she returned after collecting flowers she saw that Aniket was not in her house.It is then stated by PW-4 Mrs. Soni that at about 11:25 am again Aniket came and knocked the door of her house.She opened the door.Aniket asked her to come to his house and see whether his sister Mansi is alive or not.PW-4 Mrs. Soni accompanied Aniket.She went to his house.She saw that hands and legs of Mansi were tied.Blood was oozing from her mouth.She checked her veins and pulse and then called Bankar Patil from the gallery of house.(I) (a) Recovery of mobile of Mansi from AccusedAs stated by Investigating Officer, P.I. Borse (PW-32) on 19th June, 2009 supplementary statement of Aniket was recorded.From the supplementary statement it was revealed that Mansi had purchased a mobile of Sony Erikson company.The ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 38 Cri.Appeals 516, 281 n 468 of 2012.odt statements of shop owner and salesman of mobile shop came to be recorded and receipt of purchase of mobile Exhibit 39 was collected.On recovery of mobile of Mansi, prosecution examined PW-7 complainant Aniket, PW-6 Sheetal Sonawane, PW-11 Amirkhan - a Panch, PW-16 Mohammed Mubin - a witness on test identification parade in respect of mobile handset of Mansi, PW-18 Abdul Rauf - owner of mobile shop, PW-19 Ravindra Bahule - a police constable in the team of detection of stolen mobile, PW-20 A.P.I. Gautam Patare and PW-24 Shaikh Nadeem - a salesman at the mobile shop.34. PW-6 Sheetal Satish Sonawane was college mate of Mansi.They were studying in MGM college in I st year B.C.S. and were together in one class since XIIth standard.Mansi was her best friend.She stated that Mansi was calm and quiet.Mansi told her that her marriage was arranged with Dinesh residing in America.Appeals 516, 281 n 468 of 2012.odtAccording to Sheetal in 2009 Mansi called her on phone and told her that she wanted to purchase a mobile phone.This happened before 15 days of incident.Sheetal stated that both then went to Nirala Bazaar, 'Z' Corner at Aurangabad.Sheetal identified receipt Exhibit 39 and mobile phone seized in the crime from Accused No.2 Pradip Chandaliya as the same mobile which was purchased by Mansi.Witness Sheetal has not been cross-examined by Accused persons.Prosecution had examined PW-11 Amirkhan a Panch on seizure of mobile from Accused No.2 Pradip Chandaliya, but this witness did not support the prosecution and his evidence needs to be kept out of consideration.Another witness Assistant Police Inspector Gautam Keshav Patare (PW-20) was attached to Jinsi Police Station at the relevant time.He conducted investigation in the case.On 21st June, 2009, A.P.I. Patare received information that stolen mobile ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 40 Cri.The next witness Shaikh Nadeem Sk.Saleem (PW-24) was a salesman working at Zee Corner mobile shop.He stated that on 28th June, 2009 at 06:30 pm owner of the shop Abdul Rauf called him on phone and asked him to attend Jinsi Police Station.He went to Jinsi Police Station.Police had shown him a photograph of a girl who came to purchase mobile from their shop.He identified the photograph as of the same girl who purchased mobile from their shop.He also identified the receipt regarding purchase of mobile which bears his signature.According to this witness receipt Exhibit 39 and mobile article 25 were the same.He states that mobile was purchased by Mansi Deshpande a girl in the photograph.Mr. Datta Narhari Bharaskar (PW-22) was Naib Tahsildar attached to Tahsil Office, Aurangabad.On 28th June, 2009, letter Exhibit 90 was received by him from P.I. Borse of Jinsi Police Station for conducting identification parade of Muddemal.The evidence of this witness shows that he conducted identification parade in respect of gold ring, clothes and mobile.The evidence of Naib Tahsildar is corroborated by PW-16 Mohammed Mubin Mohammad Abbas.The other important witnesses on recovery of mobile are PW-31 Ganesh Pawar and PW-33 Sachin Bhadange.PW-31 Ganesh Ramrao Pawar was serving in Bharti Air-Tel company as Nodal Officer.The company was providing mobile services to customer.It is stated by Ganesh Pawar that on 2nd July, 2009, Aurangabad Police demanded certain information on E-mail.He stated that IMEI number is of 15 digits.Last digit '0' is common in all IMEI number, whereas first fourteen digits are unique.Information regarding IMEI number was also given to Police by them.It was a computerized information.Mobile call details Exhibit 131, certificate thereon Exhibit 132 and certificate regarding information of mobile Exhibit 130 have been proved by this witness.(PW-33) Sachin Shantaram Bhadange was a Nodal Officer in Vodafone company.He stated that mobile No.9764079190 was of their company.Last call from said mobile was made on 12th June, 2009 at 01:54 hours.He stated that after ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 45 Cri.Appeals 516, 281 n 468 of 2012.odt 12th June, 2009, no telephone call was made from said mobile.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::It can be further seen from the evidence of A.P.I.Patare that before arrest he interrogated Pradip Chandaliya regarding possession of mobile and Pradip Chandaliya disclosed to him that mobile was given to him by his customer Jawedkhan i.e. Accused No.1 towards payment against the bill of hotel.Through the evidence of above witnesses, prosecution could establish beyond reasonable doubt that -(i) Mobile recovered from Accused No.2 Pradip Chandaliya belonged to deceased Mansi.(ii) The said mobile identified at article 25 was given by Accused No.1 Jawedkhan to Accused No.2 Pradip Chandaliya towards the payment against hotel bill.The testimony of Damodhar thus inspires confidence.The next witness on recovery of gold ring is PW-29 Ashok Kesharlal Chopra, Manager working in the shop of R.C.Bafna.This witness was examined to show that PW-8 Damodhar had purchased gold ring from the shop of R.C.Bafna.Appeals 516, 281 n 468 of 2012.odt from the shop.He identified gold ring article 26 as the same ring sold from their shop.The evidence of PW-29 Ashok could not be shattered in the cross-examination.He showed his readiness to produce gold ring.Memorandum of Accused Ram Bodkhe was recorded vide Exhibit 64 in the presence of Panch witnesses.Then at the instance of Accused Ram Bodkhe gold ring was recovered from the room of electric motor in Tulsi Chambers.The gold ring was kept below a brick in the room.Borse has duly proved recovery Panchanama of gold ring and identified the gold ring article 26 as the same ring recovered on the basis of information given by Accused Ram Bodkhe.It is pertinent to note that test identification parade was conducted by PW-22 Naib Tahsildar in respect of gold ring and Aniket identified gold ring Exhibit 26 as the same ring which was gifted by his friend Damodhar.He too supports the identification of gold ring by Aniket at the time of test identification before Executive Magistrate.(IV) Recovery of blood stained clothes of Accused No.1 at his instance.It is the case of prosecution that on 23 rd June, 2009 Accused No.1 Jawedkhan made a memorandum to discover his clothes concealed in garbage in front of the building in which incident took place.PW-15 Asif Mohammad Akbar was the Panch witness on recovery of clothes of Accused No.1 Jawedkhan.It is stated by Asif that in his presence Accused Jawedkhan had shown his readiness to discover the clothes which he was wearing at the time of incident.Memorandum Exhibit 61 was drawn in his presence.At the instance of Accused No.1 Jawedkhan his blood stained clothes were recovered from the heap of waste material.Discovery Panchanama was recorded vide Exhibit 62 in the presence of PW-15 Asif by PW-32 P.I. Borse.It further appears from the evidence of Investigating Officer that seized clothes of Accused No.1 Jawedkhan were sent for chemical analysis.The blood sample of Mansi was also sent for chemical analysis to find out the blood group of the deceased.C.A. report Exhibit 119 shows that blood group of deceased was AB.Another C.A. report Exhibit 117 indicates that T-shirt of Accused Jawedkhan was having blood stains of blood group AB.Accused Jawedkhan was also sent for medical examination after his arrest.PW-21 Dr.She was Casualty Medical Officer at Ghati Hospital at the relevant time.The evidence of Medical Officer shows that blood sample of Accused was collected and it was sent for DNA and chemical examination.It can be seen from C.A. report Exhibit 115 that on examination blood group of Accused Jawedkhan was found as A.The blood stains found on the shirt of Accused Jawedkhan were of blood group AB which was the blood group of the deceased.Since no plausible explanation is coming forth from the side of Accused No.1 we have no hesitation to rely upon this circumstance too.It was revealed during investigation that Accused Jawedkhan had changed his clothes after the incident and put on the clothes of complainant Aniket.The clothes of Aniket were recovered at the instance of Accused Jawedkhan.On 24th June, 2009 during interrogation Accused Jawedkhan had shown his readiness to produce the clothes of Aniket hidden below garbage near Tapadiya Natya Graha.As per memorandum accused led the police and Panch witnesses to the place where clothes of Aniket were kept concealed in garbage near Tapadiya Natya Graha.In pursuance to the information given by Accused Jawedkhan clothes of Aniket were recovered ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 56 Cri.The clothes of Aniket were also sent for chemical analysis.No blood stains were found on the clothes of complainant.The blood stains which were found were only on the shirt of Accused Jawedkhan.During test identification parade Aniket identified the clothes recovered at the instance of Accused Jawedkhan as the clothes belonging to him (Aniket).This is another clinching circumstance to indicate that Accused Jawedkhan after the incident had changed his clothes and wore the clothes of Aniket which were available in the house.(VI) Medical evidence showing that girl was forcibly raped and then done to death.The evidence of Medical Officer Dr.Mugadalimath (PW-25) and Dr. Sachin Gadge (PW-30) has been elaborately discussed herein above.By the said judgment and order Accused No.1 Jawedkhan, Accused No.2 Pradip Chandaliya and Accused No.3 Ram Bodkhe were convicted and sentenced for various offences as under :Accused No.1 Jawedkhan :of Rs.300/- in default Simple Imprisonment for ten days.457 Rigorous Imprisonment for three years and fine of Rs.300/- in default Simple Imprisonment for ten days.458 Rigorous Imprisonment for three years and fine of Rs.300/- in default Simple Imprisonment for ten days.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::default Simple Imprisonment for ten days.376 Rigorous Imprisonment for ten years and fine of Rs.300/- in default Simple Imprisonment for ten days.201 Rigorous Imprisonment for one year and fine of Rs.300/- in default Simple Imprisonment for ig ten days.Accused No.2 Pradip Chandaliya :::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Learned Additional Sessions Judge found that Accused were not guilty of some of the offences alleged against them and accordingly acquitted the Accused as under :Criminal Appeal No.281 of 2012 is by the State of Maharashtra for enhancement of sentence awarded by the Trial Court.Criminal Appeal No.468 of 2012 is also by the State of Maharashtra against the order of acquittal.The instant case reveals a sordid story in which the alleged brutal sexual assault on a young helpless girl followed by merciless murder by dastardly act of the Accused is said to have been committed.Most disgusting feature is that an innocent college going girl of 21 year fell a prey to the unbridled lust of the Accused.The story sends shocking waves to everyone having slighted sense of human value and dignity.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::v. Aniket was frightened and immediately rushed to his neighbour Mrs.Soni.Soni accompanied ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 9 Cri.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::The shirt of Accused Jawedkhan was stained with ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 14 Cri.Appeals 516, 281 n 468 of 2012.odt blood.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Investigating Agency then forwarded clothes of Accused Jawedkhan and clothes of Aniket recovered at the instance of Accused No.1 to Forensic Science Laboratory for analysis.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt xvii.On 25th June, 2009, original simcard of Vodafone company which was in the mobile of Mansi was recovered from the shutter of godown of Tulsi Chamber at the instance of Accused Jawedkhan.Identification parade in respect of gold ring and clothes of Aniket was held before the Executive Magistrate.Aniket identified that gold wring and clothes were belonging to him.An opinion was also sought from Medical Officer Ghati whether Accused Jawedkhan was capable to perform sexual intercourse or not.Several witnesses were examined in the course of investigation.After completing investigation charge-sheet was submitted to the concerned Magistrate who committed the case for trial to the Court of Sessions.Their defence was of total denial.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odtProsecution examined in all 33 witnesses during trial.After going through the evidence adduced in the case, the learned Additional Sessions Judge convicted and sentenced the Accused and also acquitted in respect of some of the offences as stated in paras 1 and 2 above.We have heard the learned counsel for parties in extenso.With the assistance of the learned counsel for parties, we have carefully gone through the evidence of prosecution witnesses.After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned advocates for parties, reasonings recorded by Trial Court and the evidence on record, for the reasons stated below we are of the opinion that the judgment and order of conviction and sentence recorded by the Trial Court against the Accused in respect of various offences as stated in paragraph No.1 above, except sentence awarded for the offence punishable under Section 302 of the Indian Penal Code is just and proper and needs to be upheld.So far as order of sentence in respect of offence punishable under Section 302 of the Indian Penal Code is concerned, we find that in the facts and circumstances of the case ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 17 Cri.Appeals 516, 281 n 468 of 2012.odt life imprisonment imposed by the Trial Court would be an inadequate sentence and capital punishment is the only punishment which is adequate punishment.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Dr. Mugadalimath stated that history of alleged assault was given by police in the inquest Panchanama.Dead body was identified by Aniket Deshpande brother of Mansi.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt On external examination the team performing postmortem including Dr. Mugadalimath noticed the following injuries -1) Crescentic abrasion over lower part of cheek with concavity anteriorly right side of size 3 cm, reddish in colour.2) Two linear scratch abrasion over lower part of cheek right side of size 7 cm and separated by 0.2 cm anteriorly and 0.5 cm posteriorly and reddish in colour.3) Three crescentic abrasions over mandibular area right side of size 4 cm, 4.5 cm and 5 cm each, 5 cm, 5.5 cm and 6 cm.below and lateral to chin with concavity downwards reddish in colour.4) Two crescentic abrasions over right side of neck of size 2 cm and 3 cm with concavity backward and 5.5 cm and 6 cm below and forward to right mastoid, reddish in colour.Stab wound in 10 cm from chin and 8 cm from supra sternal notch.On dissection tract of stab wound - skin - subcutaneous tissue - platysma - deep cervical fascia - thyroid cartilage - vocal cord - left carotid sheath - Left common carotid artery - left ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 19 Cri.Appeals 516, 281 n 468 of 2012.odt internal jugular vein.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Direction of stab wound - backwards -downwards - laterally.6) Stab wound over neck anteriorly over midline, irregularly oval in shape, horizontally placed of size 3 cm x 0.5 cm x cavity deep on approximation 3.4 cm in length, margin irregular, contused and blood infiltrated and both angles blunted.Stab wound is 13 cm from chin and 5 cm from supra sternal notch.On dissection tract of stab wound - skin - subcutaneous tissue - deep cervical fascia - tracheal rings - oesophagus.Direction of stab wound - backwards and downwards.7) Stab wound over right side of neck 15 cm below and laterally to chin, 8 cm from right mastoid with lower margin, anteriorly of size 1 cm x 0.5 cm x cavity deep.On approximation 1.4 cm in length and irregularly oval in shape, margin irregular, contused and blood infiltrated, both angles blunted.On dissection tract of stab wound - skin- subcutaneous tissue - platysma - deep cervical fascia - right side strap muscles.Direction of stab wound - downwards - backwards and medially.8) Two stab wounds over neck right side of size 0.6 cm x 0.6 cm and 0.3 x 0.3 cm, both cavity deep and 4 cm x 6 cm below right mastoid.On ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 20 Cri.Appeals 516, 281 n 468 of 2012.odt approximation 0.8 cm and 0.5 cm in length and both irregularly oval in shape, margins irregular contused and blood infiltrated with both angles blunted.On dissection tract of wound - skin - subcutaneous tissue - platysma - deep cervical fascia - sternocleido mastoid muscles.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Direction of stab wound - backwards, downwards and medially.On dissection tract of stab - skin -::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt subcutaneous tissue.Direction of stab wound - Anteriorly and downwards.14) Contusion over right thenar aspect of palm of size 4 cm x 4 cm, irregular and reddish.15) Contusion over left thenar aspect of palm of size 4 cm x 3 cm, irregular and reddish.16) Contusion over right foot medial aspect of size 6 cm x 5 cm, irregular and reddish.17) Contusion over left foot medial aspect of size 6 cm x 4 cm, irregular and reddish.18) Stab wound over left side of chest laterally of size 0.5 cm x 0.5 cm x cavity deep on approximation 0.7 cm in length, irregularly oval in shape, margins - irregular, contused and blood infiltrated both angles blunted.On dissection tract of stab wound - skin - subcutaneous tissue.Appeals 516, 281 n 468 of 2012.odt posteriorly of size 0.5 cm x 0.5 cm x cavity deep and 0.2 cm x 0.2 cm x cavity deep separated by 0.3 cm.On approximation 0.8 cm x 0.3 cm in length, irregularly oval in shape, margins irregular, contused and blood infiltrated, both angles blunted.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::On dissection tract of stab wound - skin - subcutaneous tissue.Direction of stab wound - Anteriorly downwards.21) Evidence of multiple contusions over left side of neck of sizes varying from 6 cm x 0.2 cm to 0.5 cm x 0.5 cm, irregular and reddish.On neck dissection - evidence of hemorrhages in all strap muscles.Evidence of petechial hemorrhages above and below epiglottis and larynx.All the above injuries were found ante-mortem.Further on external examination of genital organs doctors noticed Labia minora contused along the whole length, reddish in colour.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::The evidence of Dr. Mugadalimath shows that viscera was preserved, blood, pubic hair, nails, vaginal swab and smear, swab from left breast, matted vaginal hair, aspirated vaginal fluid of the deceased were collected for chemical analysis.Those samples were forwarded to FSL, Aurangabad for analysis.For DNA test samples were sent to FSL, Mumbai.Medical Officers opined cause of death due to multiple penetrating wound over neck with transection of carotid vessels associated with signs of strangulation and smothering with injury over external genitals.It was also noticed by doctors that injuries over external genitals mentioned in column No.21 of the postmortem report were ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 24 Cri.Appeals 516, 281 n 468 of 2012.odt pointing forcible sexual intercourse with the victim.Dr. Mugadalimath further stated that injuries 1 to 21 in column No.17 could be possible by pointed blunt edge weapon like screw driver, scissor etc. It is stated by Dr. Mugadalimath that he along with Dr.Sane and Dr.Gadge performed postmortem.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::It is then stated by Dr. Mugadalimath that they received DNA test report and CA reports from concerned laboratories i.e. Mumbai and Aurangabad.After receiving DNA report and CA reports doctors had opined final cause of death of Mansi as multiple penetrating wounds over neck with transection of carotid vessels associated with signs of strangulation and smothering with and forceful sexual intercourse.Dr. Mugadalimath had stated that injury on neck of victim could be possible by hands, nails and blunt tipped weapon.The ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 25 Cri.Appeals 516, 281 n 468 of 2012.odt smothering could be possible by shutting the mouth and nostrils by palm.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Accused have not disputed genuineness of inquest Panchanama (Exhibit 31).From inquest panchanama it can be seen that multiple injuries were found on the dead body of Mansi.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odtOn 12th June, 2009 he was called by Police to take photographs of the scene of offence.Accordingly, he took 14 photographs and handed over the photographs and its bill to Police.PW-3 Baburao has not been cross-examined by the Accused.Further it can be seen from the evidence of Investigating Officer (PW-32) P.I. Borse that he visited the scene of offence and recorded spot Panchanama in the presence of Panch witnesses.Several articles mentioned in Panchanama (Exhibit 29) were seized from the spot.Accused have not disputed genuineness of spot Panchanama (Exhibit 29).It shows that articles in the house were lying scattered.Accused did not cross-examine the Investigating Officer in respect to the factual position of scene of offence clearly indicative of the fact that victim was done to death by the assailants.Before we advert to each of the circumstances enumerated above it would be essential to evaluate the evidence ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 27 Cri.Appeals 516, 281 n 468 of 2012.odt regarding occurrence of incident.PW-7 Aniket Shankarrao Deshpande is a crucial witness.He is complainant and brother of victim Mansi.Father was in Government service and posted at the relevant time at Shrinagar.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt his house at around 10:00 am.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::He knocked the door and also called Mansi on phone.But he did not receive any response.He waited for 5 minutes and then suspected something wrong.Then Aniket lodged FIR.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Police seized articles lying on the spot.Aniket noticed that his clothes and gold ring were missing.He identified those articles before the Court.Accused Nos.2 and 3 did not cross-examine him.Nothing substantial could be elicited in the cross-examination of Aniket to disbelieve his testimony.The evidence of Aniket is thus consistent, trustworthy and believable.Another witness examined by prosecution is PW-1 Vivek Chandrakant Agrawal.PW-1 Vivek came home at 07:30 pm.At around 08:00 - 09:00 pm Vivek called Aniket on phone.Aniket ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 30 Cri.Appeals 516, 281 n 468 of 2012.odt informed him that he was in company.Then Vivek asked him when would he return home.Aniket told him that there was major fault in the machine and he would be late in returning home.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::He could see bleeding injuries on her neck and blood on the bed-sheets.Police had already reached the house.Accused have not cross-examined PW-1 Vivek and we do not find any reason to disbelieve his testimony.PW-2 Vaishali Vivek Khadke used to provide tiffin to Aniket and Mansi.She was residing in front of Purwa Apartment.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::She thought that Mansi might have ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 32 Cri.Appeals 516, 281 n 468 of 2012.odt opened the door and Aniket might be inside the house.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Mrs. Bankar immediately came.She asked to call the Police.Thereafter, Police were informed.This witness is also not cross-examined by the Accused.26. PW-5 Manoj Sajan Mali, a medical practitioner was running Shree Clinic at Kailashnagar, Aurangabad at the relevant time.On 12th June, 2009 at about 10:30 am he was in his clinic and received a phone call from his patient Mr. Khadke residing in front of Purwa Apartment informing him about the incident and asking him to attend the girl.As PW-5 Dr. Mali was not aware of residential address, he told Mr. Khadke to come and take him to the place.Accordingly, Mr. Khadke came on bike and Dr. Mali attended Mansi.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt It is stated by PW-5 Dr. Mali that articles in the house were scattered.He saw hands of Mansi tied with wire and legs tied with clothes.He also noticed profused bleeding around her neck.He could gather from the circumstances that it was a case of murder and so he expressed his inability to examine Mansi and told Aniket to call Police before touching the body of Mansi.Aniket asked him that he had already informed the Police and requested PW-5 Dr. Mali to see whether there is any chance of survival of Mansi.On the request of Aniket, he examined Mansi and found that her respiratory system and pulses were not functioning.Body was stiff.PW-5 Dr. Mali told Aniket that Mansi was no more.Accused did not cross-examine this witness.The next witness Shobhana Deelip Patil (PW-9) was the owner from whom Aniket sought permission to climb the staircase to go to his house.She stated that on 12 th June, 2009 at around 11:15 am Aniket came to her house and asked her son Abhikshekh that he was not having the key of his flat and wanted to go to his flat through their iron ladder.Abhikshekh allowed him ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 34 Cri.Appeals 516, 281 n 468 of 2012.odt and accordingly Aniket climbed the ladder and went to his house.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Thus from the evidence of PW-25 Dr. Mugadalimath and PW-30 Dr. Sachin Gade, postmortem report (Exhibit 32), final cause of death certificate (Exhibit 112), spot Panchanama (Exhibit29), seizure Panchanama (Exhibit 30), the manner of incident and circumstances brought on record as discussed above an irresistible conclusion must follow that death of victim girl was homicidal in nature.Prosecution case exclusively rests on the circumstantial evidence.The principal fact or "factum probandum" may be proved indirectly by means of certain ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 35 Cri.Appeals 516, 281 n 468 of 2012.odt inferences drawn from "factum probans" i.e. evidentiary facts.To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence on various other facts in issue that taken together forms a chain of circumstances from which the existence of a principal fact can be legally inferred or presumed.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::iii) The circumstances should be of a conclusive ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 36 Cri.Appeals 516, 281 n 468 of 2012.odt nature and tendency.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::iv) They should exclude every possible hypothesis except the one to be proved.v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probability, the act must have been done by the accused and the accused alone.Keeping in view the settled law we shall examine the circumstantial evidence on which reliance is placed by the prosecution.In the case on hand prosecution has relied upon the following incriminating circumstances which according to the prosecution prove the guilt of the Accused beyond reasonable doubt.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::(VIII) Failure of the Accused to offer plausible explanation to the incriminating circumstances against him.The said receipt contains details of mobile purchased by Mansi.P.I. Borse formed separate squad for further investigation.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Both Sheetal and Mansi were often visiting each others house.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Mansi purchased a mobile phone of Soni Erickson company having simcard of Vodafone company for Rs.7,000/-.After purchasing mobile Mansi was given a receipt.Appeals 516, 281 n 468 of 2012.odt was in possession of owner of hotel Pancham.So along with Panch witness and other staff he went to hotel Pancham on Jalna Road and gave information at the counter of hotel about purpose of his visit.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Accused No.2 Pradip Chandaliya was available on the counter.A.P.I. Patare asked Pradip Chandaliya whether he was possessing mobile.Pradip Chandaliya told him that he was having mobile handset of Soni Ericson company which was given to him by his customer Jawedkhan on 14th June, 2009 towards a bill of hotel.Pradip Chandaliya also stated that simcard in the mobile was given to him by his son Mayur.Pradip Chandaliya handed over the mobile to A.P.l.A.P.I. Patare identified the mobile and the simcard before the Court.The evidence of A.P.I. Patare is consistent throughout and nothing otherwise could be elicited in his cross-examination to disbelieve his testimony.In order to ascertain whether mobile seized from Accused No. 2 belonged to Mansi, reliance is also placed on the evidence of PW-18 Abdul Rauf and PW-24 Shaikh Nadeem.PW-18 Abdul Rauf Mohammad Yakub was running Zee Corner ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 41 Cri.Appeals 516, 281 n 468 of 2012.odt mobile shop at Nirala Bazar, Aurangabad.Accused did not cross-examine this witness.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::In the cross-examination by Accused No.1, nothing substantial could be brought on record to doubt his testimony.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtAnother witness (PW-19) Ravindra Murlidhar Bahule was a police constable in the team formed for detection of stolen mobile.He identified mobile article 25 and supported Panchanama of recovery of mobile.Since Accused No.2 Pradip Chandaliya has not seriously disputed that mobile was recovered from him by Police the evidence of P.C. Bahule is not of much importance.According to prosecution, mobile which was seized from Accused No.2 Pradip Chandaliya was identified by complainant PW-7 Aniket as of Mansi.Test identification parade in respect of mobile was conducted by PW-22 Datta Bharaskar.Aniket identified gold ring and clothes belonging to him and mobile as of Mansi.TIP Panchanamas were duly proved by Mr. Bharaskar.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt He was cross-examined at length by Accused.Except some minor contradictions and omissions, the evidence of Mr.Bharaskar remained consistent throughout on TIP.E-mail was received from the office of Commissioner of Police, Aurangabad.Accordingly details were given to Police pertaining to said mobile.This witness had given detailed information in respect of the calls made, from which number calls were received, time of ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 44 Cri.Appeals 516, 281 n 468 of 2012.odt conversation traceable from IMEI number and simcard number.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::(iii) IMEI number mentioned on the receipt of purchase of mobile (Exhibit 39) exactly tallied with IMEI number visible on the mobile seized from Accused No.2 Pradip Chandaliya.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt(iv) Receipt Exhibit 39 shows that the said mobile was purchased by Mansi.(v) Accused No.1 Jawedkhan did not explain possession of mobile with him.On the recovery of simcard in the mobile phone of Mansi prosecution examined PW-12 Mukram Khan Abdul Gaffar Khan, PW-23 Vinod Kharat, PW-26 Mayur Chandaliya, A.P.I.Patare (PW-20) and P.I. Sopan Borse (PW-32).PW-12 Mukram Khan did not support the prosecution and his evidence needs to be kept out of consideration.PW-23 Vinod was working in Hotel Pancham owned by Accused No.2 Pradip Chandaliya.He was examined to show that simcard given by PW-26 Mayur to his father Pradip was ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 47 Cri.Appeals 516, 281 n 468 of 2012.odt inserted in the mobile by him.According to PW-26 Mayur he purchased three simcards from a mobile shop.One was given by him to his friend Mayur Jain.He handed over two simcards to PW-23 Vinod Kharat who was working in their hotel.He denies that he had given simcard to his father.To that extent contradiction is proved through the evidence of Investigating Officer.Mayur however admits that simcard which was given to his father was purchased by him.The evidence of this witness suggests that simcard which was found in the mobile recovered from Accused No.2 Pradip Chandaliya given by Accused No.1 Jawedkhan was purchased by Mayur and it further suggests that mobile handset given by Jawedkhan to Pradip Chandaliya was without simcard.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::The next important witnesses on recovery of simcard are PW-20 A.P.I. Patare and PW-32 P.I. Borse.It is stated by A.P.I. Patare that he interrogated Accused No.2 Pradip Chandaliya regarding possession of mobile handset with him and during interrogation Pradip Chandaliya stated that simcard in the said mobile was given to him by his son Mayur.A.P.I. Patare seized the simcard under Panchanama.The said simcard was ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 48 Cri.Appeals 516, 281 n 468 of 2012.odt given by PW-26 Mayur to his father Pradip Chandaliya for being used in the mobile seized from Pradeep Chandaliya.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Further link in the circumstances has been established through the evidence of PW-32 P.I. Borse.P.I. Borse interrogated Pradip Chandaliya regarding possession of mobile.Pradip Chandaliya told him that simcard was given to him by his son Mayur and mobile handset was given to him by Jawedkhan @ Tingarya s/o Habib Khan a customer of his hotel towards the bill of hotel.P.I. Borse then interrogated Mayur who admitted that he had given the simcard to his father for being used in the mobile handset.This evidence clearly establishes that while handing over mobile to Accused No.2 simcard was removed by Accused No.1 Jawedkhan.Now the crucial question which is to be answered is regarding the simcard used by Mansi.In this connection P.I.Appeals 516, 281 n 468 of 2012.odt given by Accused Jawedkhan simcard was recovered from the place stated by him.It was seized and it's Panchanama Exhibit 54-A was drawn in presence of Panchas.Article 21 simcard has been identified by P.I. Borse as the same.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::True, Panch witnesses do not support the prosecution on recovery of simcard.In our view that alone would not be enough to discard the testimonies of police officers whose evidence is otherwise found to be trustworthy and believable.On the basis of their evidence we hold that prosecution has proved this clinching circumstance against Accused Jawedkhan beyond doubt.It can be seen from the evidence of PW-7 Aniket that gold ring gifted to him by his friend on his birthday was found missing from the house.PW-8 Damodhar Manik Ghuge was doing welding work in Sterlight company where Aniket was serving.Damodhar and Aniket were working in the same ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 50 Cri.Appeals 516, 281 n 468 of 2012.odt department.He stated that in March 2008 he had attended birthday of Aniket and offered him a gold ring weighing 5½ grams.He purchased the gold ring from the shop of R.C.Bafna at Aurangabad.He came to know that gold ring given by him to Aniket was stolen.Police called him to identify the gold ring.He went to Police Station and identified the gold ring as the same given by him to Aniket.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::This witness was cross-examined on identification of gold ring.Damodhar stated that gold ring was containing name of R.C.Bafna and white imitation stone.Despite cross-examination at length, evidence of Damodhar has remained unshaken and consistent throughout.PW-29 Ashok stated in his evidence that gold ring seized in the crime was having monogram of their shop.The same was sold ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 51 Cri.Through his evidence prosecution could prove that gold ring article 26 given to Aniket was purchased from the shop of R.C.Bafna.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::According to prosecution gold ring article 26 was recovered at the instance of Accused No.3 Ram Bodkhe.During investigation Accused No.3 Ram Bodkhe was interrogated.Another witness PW-15 Asif Mohammad Akbar was examined on recovery of gold ring at the instance of Accused No.3 Ram Bodkhe.He sticks up to his evidence regarding ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 52 Cri.Nothing could be elicited in his cross-examination to disbelieve his testimony.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Further it was revealed during investigation that Accused Jawedkhan had to pay some dues to Ram Bodkhe and against the payment of dues Accused Jawedkhan had given gold ring article 26 to Ram Bodkhe.Prosecution through the evidence of Complainant, Panch witnesses and Investigating Officer has proved that gold ring recovered at the instance of Accused No.3 Ram Bodkhe was given to him by Accused No.1 Jawedkhan and the said ring was gifted to Aniket by his friend Damodhar.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtP.I. Borse fully supported memorandum and discovery Panchanama of the clothes of Accused Jawedkhan and identified T-shirt article 28 and Jeans Pant article 27 as the clothes which were recovered on the basis of information given by Accused No.1 Jawedkhan.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtThis is a strong clinching circumstance against Accused Jawedkhan confirming his presence on the spot and tilting the ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 55 Cri.Appeals 516, 281 n 468 of 2012.odt needle towards him and him alone to show that he is the culprit.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt and recovery Panchanama Exhibit 57 was drawn by P.I. Borse.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::On examination of genital organs Medical Officers found that the girl was sexually assaulted.Postmortem Report Exhibit 32 duly proved by Medical Officers shows clear evidence of forcible sexual intercourse with the victim.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtAccused Jawedkhan was sent to Ghati Hospital for medical examination as stated above.PW-21 Dr. Heena Khan examined the Accused and found that he was capable of performing sexual intercourse.She proved the certificate ExhibitDuring examination Dr. Heena Khan collected blood, public hair, semen samples and nail clippings of Accused Jawedkhan.Accused Nos. 2 and 3 did not cross-examine PW-21 Dr. Heena Khan.There was no effective cross-examination of this witness from the side of Accused No.1 Jawedkhan.In respect of DNA test of Accused Jawedkhan it was revealed during investigation by P.I. Borse that special kit was required for taking blood and semen samples of the Accused.The special kit was available only at FSL, Kalina, Mumbai.Head Constable Hiwale was deputed by P.I. Borse for calling the special kit from FSL Mumbai.He then sent the special kit along with Accused Jawedkhan to Medical Officer Ghati Hospital, Aurangabad and wrote a letter Exhibit 147 to take blood and semen samples of Accused Jawedkhan in special kit for performing DNA test.The samples were accordingly collected ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 58 Cri.Appeals 516, 281 n 468 of 2012.odt and forwarded to FSL Mumbai for DNA test of Accused Jawedkhan.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::The opinion of expert on examination was as under :"For all the 17 genetic systems analysed with the PCR using male specific Y STR system the male haplotypes obtained in Semen stains detected on bed sheet (FSL ML Case No. DNA 356/09 - Exh.1) exactly matched with male haplotypes in control blood sample of accused Jawedkhan."On the basis of the results of analysis it is crystal clear that Accused Jawedkhan had committed rape on Mansi as male haplotypes of Jawedkhan were found in the aspirated vaginal fluid of Mansi clearly indicative of the fact that it was Accused Jawedkhan who committed rape on victim girl.Further from DNA report Exhibit 119 it can be seen that in the DNA extracted from the semen stains on the bed sheet in the house of Mansi, male haplotypes in control blood sample of Accused Jawedkhan were found.This makes it clear that Accused had committed sexual intercourse with victim Mansi.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt From another report Exhibit 120 it can be seen that blood stains detected on the bed-sheet, T-shirt of the Accused and the control blood stains of deceased were of same biological individual.In this background, it can be safely concluded that prosecution could successfully prove that Accused No.1 Jawedkhan sexually assaulted victim Mansi.(VII) Motive.In a case based on circumstantial evidence, motive assumes pertinent significance as existence of motive is an enlightening factor in a process of presumptive reasoning in such a case.The absence of motive however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that surmises and conjectures do not take place of legal proof.From the incriminating circumstances discussed here-in-above motive of the Accused in the present case has been established i.e. to commit theft, satisfy the unbridled lust of the Accused and then to cause death of victim girl so that his acts can be simply buried forever.As motive is apparent, prosecution does safely cross this hurdle too.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt(VIII) Failure of the Accused to offer plausible explanation to the incriminating circumstances against him.The last circumstance against the Accused is his failure to offer plausible explanation to the incriminating circumstances against him.In his statement under Section 313 of the Code of Criminal Procedure Accused has not given any explanation whatsoever for any of the clinching circumstances brought on record by the prosecution against him.We consider the silence of Accused as an additional link to complete the chain in the circumstantial evidence and on the close and critical examination of the evidence on record we hold that all the circumstances proved by the prosecution clearly indicate that accused and accused alone is responsible for the acts attributed to him.On the contrary, the same are of exclusive nature consistent only with the hypothesis of the guilt of the accused and conclusively lead to an irresistible conclusion that it is Accused No.1 who ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 61 Cri.Appeals 516, 281 n 468 of 2012.odt committed lurking house trespass with an intention to commit theft and then committed rape on the victim and done her to death.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::In response to the submissions made on behalf of Appellant Jawedkhan, learned APP Mr. Sonpawale strenuously submitted that considering the nature of offence, manner in which it was committed and its impact on the society at large it is a rarest of rare case in which capital punishment needs to be awarded and life imprisonment would be an inadequate sentence.On the point of death sentence learned APP relied upon the following authorities:::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::C.R.(Cri.) 744 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 63 Cri.a) Accused was 21 years old at the relevant time.The hard facts of the present case are that Accused Jawedkhan entered the house in the odd hours to commit theft, brutally and sexually assaulted victim girl who was sleeping alone in the house and then mercilessly caused her murder.Such an act of the Accused in our view has to be dealt with stern hands.The circumstances established by the prosecution listed above show how a precious life of a young girl was taken away by Accused in a most cruel, barbaric and inhuman manner.Further how brutal and diabolical act of causing sexual assault and death of victim was, is apparent from the modus-operandi of Accused proved through various circumstances brought on record.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtIt would not be out of place to mention here that at all levels may be International, National, State or local commitment has been made that women have an inherent right to life which includes right to live with dignity, honour and respect.Any leniency in our view would result into an inadequate punishment.It was revealed from his past antecedents that Accused Jawedkhan was involved in five offences relating to housebreaking and two offences of theft.The extracts of crime registers (Exhibits 152 to158) were proved by the Investigating Officer clearly indicating that past antecedents of Accused Jawedkhan were not clean and clear.In this background and considering the nature of offence, manner in which it was committed and upon evaluating the aggravating and mitigating circumstances according to us this is a case which falls in the category of rarest of rare case.We have therefore no hesitation in awarding sentence of death to Accused No.1 Jawedkhan.So far as remaining two Accused Pradip Chandaliya ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 73 Cri.Appeals 516, 281 n 468 of 2012.odt and Ram Bodkhe are concerned they were convicted basically for the offences relating to receiving stolen property.Both did not challenge the order of conviction recorded by the Trial Court against them.It is the State of Maharashtra who came in appeal for enhancement of sentence against all the Accused.On appreciation of the evidence against Accused No.2 Pradip Chandaliya and Accused No.3 Ram Bodkhe we find that the reasons and findings recorded by the learned Additional Sessions Judge are based upon due appreciation of evidence and are consistent with the evidence on record as well as the settled legal principles.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::In respect to the appeal against acquittal under some of the provisions of the Indian Penal Code, we upon evaluation of evidence do not find any perversity, illegality or incorrectness in the findings recorded by the Trial Court.We thus find that appeal against acquittal filed by the State of Maharashtra deserves to be dismissed.In the above premise and in the totality of the facts and circumstances, we proceed to pass the following order -::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt ORDER Criminal Appeal No.516 of 2012 I. Criminal Appeal No.516 of 2012 is dismissed.Criminal Appeal No.281 of 2012 I. Criminal Appeal No.281 of 2012 is partly allowed against Accused No.1 Jawedkhan @ Tingarya s/o Habibkhan.Conviction of Accused No.1 Jawedkhan @ Tingarya s/o Habibkhan under Sections 456, 457, 458, 392 read with 397, 376 and 302 of the Indian Penal Code is maintained.The order of sentence of imprisonment for life in respect of offence punishable under Section 302 of the Indian Penal Code is modified and instead Accused No.1 Jawedkhan @ Tingarya s/o Habibkhan is sentenced to death, he be hanged by neck till he is dead.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt IV.The order of sentence in respect to the other offences mentioned in II above is confirmed.V. Appeal Against Accused No.2 Pradip s/o Askaran Chandaliya and Accused No.3 Ram s/o Sheshrao Bodkhe stands dismissed.Copy of judgement shall be given free of cost to Accused No.1 Jawedkhan @ Tingarya s/o Habibkhan immediately.Criminal Appeal No.468 of 2012 I. Criminal Appeal No.468 of 2012 is dismissed.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::

Cited provisions: Section 302 in The Indian Penal Code; Section 354 in The Indian Penal Code; Section 392 in The Indian Penal Code; Section 457 in The Indian Penal Code; Section 201 in The Indian Penal Code