1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Confirmation Case No.3 of 2008 With Criminal Appeal No.700 of 2008 The State of Maharashtra, through Police Station Officer, Police Station Kholapur. ... Appellant Versus Rajendra Pralhadrao Wasnik, aged about 28 years, r/o Parlam, Tq. Bhatkuli, District Amravati ... Respondent Smt. B.H. Dangre with Shri Anoop Parihar, Additional Public Prosecutors for Appellant. Shri R.M. Patwardhan, Advocate for Respondent. Criminal Appeal No.700 of 2008 In Criminal Confirmation Case No.3 of 2008 Rajendra Pralhadrao Wasnik, Aged about 28 years, Occupation Labourer, r/o Parlam, Tq. Bhatkuli, District Amravati (In Jail). ... Appellant 2 Versus The State of Maharashtra, through Police Station Officer, Kholapur, District Amravati. ... Respondent Shri R.M. Patwardhan, Advocate for Appellant. Smt. B.H. Dangre with Shri Anoop Parihar,Additional Public Prosecutors for Respondent. CORAM : A.H. Joshi & R.C. Chavan, JJ. Reserved on : 19-3-2009 Pronounced on : Judgment (Per R.C. Chavan, J.) : 1. This judgment disposes of Confirmation Case No.3 of 2008 as also Criminal Appeal No.700 of 2008 arising out of the judgment of the learned Additional Sessions Judge, Amravati, in Sessions Case No.183 of 2007 before him, whereby the learned Judge convicted accused Rajendra Pralhadrao Wasnik of offences punishable under Sections 376(2)(f), 377 and 302 of the Penal Code. The learned Additional Sessions Judge sentenced 3 the appellant to death for offence punishable under Section 302 of the Penal Code, to life imprisonment and fine of Rs.1,000/- for offence punishable under Section 376(2)(f), and to rigorous imprisonment for ten years and fine of Rs.1,000/- for offence punishable under Section 377 of the Penal Code. 2. Facts, which led to prosecution of the appellant are as under : The appellant is a cousin of complainant PW 12 Mahendra Namdeorao Wasnik, resident of Village Asara. Mahendra and his wife PW 2 Kanta had a daughter by name Vandana, who was three years old at the time of incident on 2-3-2007. The appellant visited the house of Mahendra and Kanta in order to meet Mahendra's father Namdeorao, who was ailing. After having a cup of tea, the appellant left and returned again at about 6 p.m. He took Vandana towards S.T. Stand saying that he would purchase biscuits for her. Neither the appellant nor Vandana returned home. Mahendra was not at home and upon 4 his return at about 8 p.m., Kanta informed him that a visitor, whose name she did not know, had taken daughter Vandana and had not returned. Vandana's enquiries led to ascertainment of identity of the visitor as appellant Rajendra. 3. The villagers helped in search of Vandana as well as the appellant and even allegedly visited the appellant's village. Next morning, dead body of Vandana was noticed by people in the field of one Pramod Vitthalrao Mohod. On a report by Mahendra, an offence was registered on 3-3-2007 and investigation commenced. 4. In course of investigation, after performing inquest, police caused dead body of Vandana to be sent for post mortem examination, which revealed that Vandana had been raped as well as sodomized and had died due to asphyxia. A number of injuries were observed on her person. The police caused Vandana's clothes as well as other incriminating articles to be seized. They performed panchanama of spot and recorded statements of 5 witnesses. 5. Search for the accused was launched and eventually on 9-4-2007, the appellant was arrested by Amravati Police under Section 41(1) of the Code of Criminal Procedure. Thereafter his custody was made over to the Investigating Officer from Police Station Kholapur. The Investigating Officer caused the appellant to be medically examined and also caused necessary samples to be taken. He forwarded the property seized to the Forensic Science Laboratory. On completion of investigation, chargesheet was sent up. 6. Upon commitment of the case to the Court of Session, the learned Additional Sessions Judge charged the appellant of offences punishable under Sections 376(2)(f), 377 and 302 of the Penal Code. Since the appellant pleaded not guilty, he was put on trial, at which the prosecution examined in all 13 witnesses. The defence of the accused, as appearing from the cross-examination 6 of the prosecution witnesses and statement under Section 313 of the Code of Criminal Procedure, is that of denial. Upon consideration of the evidence in light of defence of denial raised, the learned Additional Sessions Judge held the appellant guilty of offences charged and convicted and sentenced him as aforementioned. 7. The learned Additional Sessions Judge directed the record to be placed before this Court for confirmation of death sentence awarded by him. 8. The appellant also preferred an appeal taking exception to his convictions and sentences imposed upon him. 9. We have heard Smt. B.H. Dangre, the learned Additional Public Prosecutor for the State, and Shri R.M. Patwardhan, the learned Advocate for the convict. With the help of both the learned counsel, we have gone through the entire 7 record. 10. The case rests solely on circumstantial evidence, since there are no eye-witnesses to the incident. The defence had admitted inquest panchanama, panchanama of spot, seizure of articles from the spot, notes of post mortem examination and documents pertaining to sending the property to the Forensic Science Laboratory, as well as the report received from the Laboratory, requisitions to Medical Officers and arrest memoranda. 11. It may be seen from the inquest panchanama, which was performed on the morning of 3-3-2007, that naked body of 3-year-old child was lying in the field with her clothes kept on her body. She had a number of injuries on her face, chest, back, arms and legs. There was obvious evidence of rape as well as sodomy. Her cheeks and nipples bore bite marks. 8 12. The notes of post mortem examination at Exhibit 17 show that 3-year-old child had a congested face with contused abrasions all over, mud was present in her mouth as well as on her lips. She had injuries to her genitals as described in para 15 of the notes of post mortem examination, which read as under: External vaginal swelling present. Vaginal wall lacerated, wound extending from labia majora to inside vaginal canal in lower 1/3rd on both side 1 ½” x 1/4” x muscle deep. Stains of semen present on inner side of right thigh. Hymen absent. One finger easily pass. Swelling present on anal region. Vaginal swab preserved bottle No.6. Vaginal slide preserved sample No.7. In addition, the following surface wounds have been noted in column No.17 of the notes of post mortem examination : Multiple abrasions with contusions present on body of face, chest, back and both shoulders and knees anteriorly. Bite mark on chest left side around nipple eliphical with diameters 1 ½” x 1 ¼”. 9 The Medical Officers opined that the injuries were ante mortem and certified that the cause of death was due to rape and asphyxia. 13. The Medical Officer had taken various samples from the victim's person and had handed them over to the police. The same were seized vide Exhibit 13. Upon arrest of the accused, he had also been sent for medical examination conducted by PW 9 Dr. Shirsat, who had taken blood, semen and pubic hair samples of the appellant and handed them over vide Exhibit 57 to the police. The same were seized vide Exhibit 15. All these articles were sent to the Forensic Science Laboratory vide Exhibits 19 and 20 in order to enable the Laboratory to answer queries raised in Exhibit 21. The reports of the Laboratory are at Exhibits 76, 77 and 78. As far as the reports in respect of appellant's samples of semen and blood are concerned, they were inconclusive, as may be seen from Exhibit 76. His clothes also did not bear any blood or semen stains as may be seen from report at Exhibit 78. The 10 report in respect of victim's clothing and other samples at Exhibit 77 shows that her clothes had stains of blood group 'O', which was her own blood group. However, neither semen nor spermatozoa were detected on other exhibits including vaginal swab and possibly scraping of semen stain found by the Medical Officer on the thigh of the victim. Thus the reports from the Laboratory are unhelpful to connect the appellant to the crime. 14. PW 2 Kanta is victim's mother. She stated that the appellant had come to her house about six months prior to the incident. She stated that on the day of incident, which happened to be festival of Holi, the appellant had come to her house. After taking tea, the appellant left her house at about 3 p.m. and returned again at 6 p.m. Victim Vandana was playing in front of the house. The appellant told her that he would purchase biscuits for Vandana and picked Vandana up in his arms and took her towards S.T. Stand. Since Vandana did not return for a long time, she went to the S.T. Stand, but could not find her. When her 11 husband returned home, she narrated the incident to him. She stated that she was not knowing the name of the accused, when the accused had come to her house and that she learnt his name from her husband on the next day. She admitted in cross-examination that before the incident, she was not knowing the appellant. She also admitted that she had not been called at the Police Station for the purpose of identifying the appellant. It is not in dispute that no test identification parade was ever held. She could not assign any reason for the fact that her police statement did not mention that the appellant had come to her house six months prior to the incident, as also the description of the clothes, which the appellant was wearing when he came on the incidental day. She denied the suggestion that the appellant had not at all come to her house. She also denied that her husband had not told her the name of the accused or that her husband could not have told her the name of the accused as there were disputes between her and her husband. The disputes seem to have arisen subsequently and have no bearing on the facts of 12 the case. 15. PW 3 Priti is victim's cousin, i.e. niece of Kanta and Mahendra. She stated that Mahendra's house is adjacent to her own house. On 2-3-2007 at about 3.30 to 4 p.m., the appellant came to the house of Namdeorao, i.e. the father of Mahendra. Namdeorao asked PW 3 Priti to serve tea to the accused and accordingly she served tea. The appellant left saying that he would come after seeing his friends. The appellant returned again at 6 p.m. Vandana was playing in the courtyard. The appellant told PW 2 Kanta that he would purchase a packet of biscuits for Vandana and took Vandana with him for this purpose. Vandana did not return thereafter. She stated that Kanta searched for Vandana, but could not find her. Search for Vandana by others in the night was also not fruitful and on the next day, the dead body of Vandana was found in the field of Namdeorao Mohod. PW 3 Priti also stated that she knew the accused, since he had visited to her house about six months prior to the incident to meet 13 Namdeorao. At that time, the appellant's clothes were wet and, therefore, at the instance of Namdeorao, she gave dry clothes of her brother Sandip to the appellant. 16. The statement of PW 3 Priti seems to have been recorded one month after the incident. Her cross-examination also reveals that she had not stated before the police that the appellant had come to her house about six months prior to the incident or that she had given her brother's clothes to the appellant for changing. She too denied the suggestion that the appellant had not at all come on the incidental day or had not picked up Vandana. 17. The learned counsel for the appellant submitted that the identification of the appellant as the person, who picked up Vandana on the incidental day by these two witnesses, is based upon their being told by PW 12 Mahendra that the person, who had come was the appellant. PW 12 Mahendra could fix the 14 identity of the visitor as the accused on the basis of the description of the visitor by these two witnesses as one, who had visited their house six months prior to the incident. The learned counsel submitted that this story of appellant having visited the house of these witnesses about six months before the incident is itself an improvement and not to be found in the police statement of these two witnesses. 18. PW 13 Investigating Officer API Muley has categorically stated that neither PW 2 Kanta nor PW 3 Priti had stated before him about any such visit by the appellant to their house six months prior to the incident. The learned counsel for the appellant submitted that if this part of the version of Kanta and Priti is excluded, there would be no occasion for PW 12 Mahendra to be able to locate the identity of the visitor, who took Vandana away as the appellant. According to the learned counsel, in the absence of test identification parade, the learned Trial Judge was thoroughly unjustified in accepting the word of PW 2 15 Kanta and PW 3 Priti as to the identity of the appellant, which had its origin in improvement. It would have been ideal if the Investigating Officer had arranged for identification parade. However, as pointed out by the learned APP, absence of a parade is not fatal in this case, because the appellant has been named in the FIR. 19. The learned Additional Public Prosecutor submitted that the omission, which are not contradictions and merely amount to improvements in the original story, are not significant. Merely because the witnesses had failed to state before the police that the visitor had visited to the house six months prior to the incident, this version cannot be discarded. She submitted that rather than looking at a piece of evidence in isolation and indulging in “tinkering with burden of proof and chopping little logic”, it may be useful to take a comprehensive view of the entire evidence that has been unfolded. 16 20. Apart from PW 2 Kanta and PW 3 Priti, PW 4 Ravindra Borkar, an auto rickshaw driver and a neighbour of PW 12 Mahendra, and PW 7 Sumeet Ramteke had also seen the appellant with the victim on the incidental day at a time which corresponds with that deposed to by PW 2 Kanta and PW 3 Priti. PW 4 Ravindra stated that on 2-3-2007 at about 6 p.m. when he was at S.T. Stand of Village Asra, he had seen the appellant along with victim Vandana in the hotel of Rajendra Bhojane, which is situated at the S.T. Stand. Vandana was on the lap of the appellant and the appellant had purchased a packet of biscuits for her. He also stated that the appellant then left (presumably with Vandana) by the road going to Amravati. He stated that after half an hour one Vikram Meshram came and told him that the accused had taken the daughter of PW 12 Mahendra Wasnik. He then claims to have searched for the victim, but could not find the victim as well as the appellant. He stated that he learnt the name of the appellant from Vandana's grandfather Namdeorao. This is probable, because the appellant had allegedly come to see Namdeorao. Therefore 17 Namdeorao was bound to know the name of the appellant. PW 4 Ravindra then states that he and others went in search of the appellant at Village Parlam on the basis of the information given by the victim's grandfather. He stated that he returned to the village on the same night. Next morning, again he had visited village Parlam and when he was returning, he came to know that the dead body of Vandana was found in the field of Mohod. 21. Apart from being examined by the police, the Investigating Officer had also caused statement of this witness recorded under Section 164 of the Code of Criminal Procedure before the Magistrate, which the witness has admitted and proved at Exhibit 40. In cross-examination, even this witness had admitted that no test identification parade was held. He could not assign any reason for the omission in his statement that he had seen the appellant along with victim Vandana in the hotel of Rajendra Bhojane, which omission has been duly proved by PW 13 API Muley. However, he had stated before police as well as before 18 the Magistrate that he had seen victim with appellant at S.T. Stand. He could not likewise assign any reason for the omission in his statement that the victim's grandfather Namdeorao had told him the name of the appellant, which omission too was duly proved by PW 13 API Muley. 22. The learned counsel for the appellant sought to falsify the evidence of pW 4 Ravindra by referring to his statement recorded by PW 8 Special Judicial Magistrate Shri Kshirsagar. The statement at Exhibit 40 too does not contain a reference to Vandana's grandfather Namdeorao telling the name of the appellant to PW 4 Ravindra. PW 8 Shri Kshirsagar categorically stated in cross-examination that the witness had not stated before him that the name of the accused or the name of the village of the accused was conveyed to him by Namdeorao. On the other hand, the statement at Exhibit 40 would show that PW 4 Ravindra came to know the name of the appellant from PW 12 Mahendra. 19 23. PW 4 Ravindra denied the suggestion that he was depositing falsely that he had seen the appellant along with victim on the incidental day. The learned counsel for the appellant submitted that if the evidence of PW 4 Ravindra that he learnt about the identity of miscreant as the appellant from the victim's grandfather is excluded, the whole testimony of PW 4 Ravindra would become doubtful as to the identity of the miscreant. 24. PW 7 Sumeet Ramteke is a neighbour of Kanta and Mahendra, the victim's parents. He stated that on 2-3-2007, he was coming to his house from S.T. Stand, Asara and saw the appellant standing in the house of Mahendra with Vandana in his arms. He stated that he saw the appellant going towards S.T. Stand along with Vandana. He stated that thereafter Kanta asked him to search for Vandana, since she had not come back and he, therefore searched for her. On the next day, he came to know that Vandana's dead body was found in the field of Namdeorao Mohod. He stated in cross-examination that police had made 20 enquiries with him on 3-3-2007 and not thereafter. He stated that after the arrest of the accused, the villagers had gone to see the accused and that he had also gone. He admitted that the photograph of the accused was published in the newspaper, but he denied that he had not seen the appellant on the incidental day along with the victim or that he was depositing falsely to that effect. 25. PW 12 Mahendra, the victim's father, stated that upon his return, his wife had informed him that the appellant had taken their daughter and had not come back. He stated that he went with two persons to Parlam in search of the appellant and found that the appellant was not in his house. Next morning, when he was proceeding to Police Station Kholapur to give a report, he found people gathered in the field of Pramod Mohod, where the dead body of his daughter was lying. He proved his reports at Exhibits 71 and 72. 21 26. As rightly pointed out by the learned Additional Public Prosecutor, it is not that PWs 2, 3 and 4 had not stated that the victim had been taken away by a guest. The question is only about fixing the identity of that guest. She pointed out that apart from these three witnesses, PW 7 Sumeet Ramteke had also stated that he had seen the victim with the appellant in the house of PW 2 Kanta herself and then had again seen the appellant and the victim going towards the S.T. Stand. There are no omissions in his statement. 27. The learned counsel for the appellant contended that the identification of the appellant as the person, who had taken victim with him on the incidental day by PW 7 Sumeet, cannot be believed by PW 7 Sumeet cannot be believed because PW 7 admits that there was discussion in the village that Rajendra Wasnik had taken the girl and after arrest of the accused, he too had gone to see the accused, as also that he had seen photograph of the accused in the newspaper. Therefore, according to the 22 learned counsel for the appellant, the identification of the appellant by PW 7 Sumeet is based on subsequent co-relation of the appellant with the incident upon appellant's arrest. This would not negate his word that he had seen victim with a stranger on the incidental evening. 28. The learned counsel for the appellant also submitted that if the appellant was indeed a cousin of PW 12 Mahendra, then PW 2 Kanta and PW 3 Priti would have certainly stated so. They had only referred to the appellant as the guest – possibly a relation, but decidedly had not described him as cousin. He pointed out that in the statement under Section 313 of the Code of Criminal Procedure, the appellant had denied as false the claim of PW 12 Mahendra that the appellant was his cousin. The learned counsel submitted that no independent evidence has been brought on record to show that the appellant was indeed cousin of Mahendra. 23 29. The contentions raised by the learned counsel for the appellant cannot be lightly brushed aside as worthless. All the same, as rightly submitted by the learned Additional Public Prosecutor, they have to be evaluated by reading the evidence as a whole and not in bits. She pointed out that if the miscreant was wrongly identified by PW 12 Mahendra as the appellant on the basis of wrong description given by PW 2 Kanta and PW 3 Priti, it would have been suggested to PW 12 Mahendra that he had wrongly identified the appellant as the person, who took away his daughter. The learned Additional Public Prosecutor pointed out that no reason is suggested as to why PW 12 Mahendra would wrongly identify the appellant as miscreant or give a report against the miscreant for such a gruesome offence. No enmity has been suggested in cross-examination or even in statement under Section 313 of the Code of Criminal Procedure. Thus there was absolutely no reason for PW 12 Mahendra to name the appellant as the miscreant in the FIR on the very next day of the crime. PW 12 Mahendra would not name the appellant in the FIR without 24 there being any strong reason and in the absence of any motive to falsely implicate the appellant, it must be taken that PW 12 Mahendra named the appellant because he bona fide believed the appellant to be a miscreant. This belief is fortified by the identification of the appellant by four witnesses, who saw the appellant along with the victim on the incidental evening. Had it been a case that Mahendra was wrong in inferring that the miscreant was the appellant, PW 2 Kanta and PW 3 Priti would have decidedly pointed out that the appellant was not the miscreant, who had taken away deceased Vandana. They would not be interested in allowing the real mischief monger to go scot free. Same holds good about identification of the appellant by PW 4