Cr.Appln.1390-2010.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1390 OF 2010 IN CRIMINAL APPEAL NO. 872 OF 2010 Sandip Ramesh Gaikwad ...Applicant. Vs. The State of Maharashtra ...Respondent. ---- Mr. A.P. Mundargi, Sr. Adv. with Mr. Amol Patankar, for the Applicant. Mrs. A.S. Pai, APP for the State. --- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. Reserved On: 7th March, 2011. Declared On : 14th March, 2011. P.C.:- 1 The applicant-accused, convicted of the offences punishable under Sections 376(f) and 302 of IPC, 1860 and sentenced to suffer R.I. for ten years as well as life imprisonment on the respective counts in Sessions Case No.27 of 2010, has moved this application for grant of bail. 1 Cr.Appln.1390-2010.sxw 2 According to the prosecution, the applicant-accused was found sleeping at the distance of about 1 and ½ feet from the dead body of the victim Pooja, a six year old girl in the hut of his maternal uncle situate at Macchimar Nagar, Cuffe Parade, Mumbai, in the night between 3rd and 4th September, 2009, more particularly around 3.00 a.m. on 04.09.2009; and the victim was found wearing frock with blood stains and a knicker (chaddi) of the victim was found lying on a bag used for fishing inside the said hut. The scene of offence panchanama recording the observations made by the police in the presence of the panchas in the morning of 04.09.2009 further revealed faecal material lying some ½ feet distance from the said knicker of the victim. Shri Mundargi, the learned counsel for the applicant-accused submitted that the medical evidence read in conjunction with the result of the forensic investigation carried out in the present case failed to reveal any nexus between the applicant-accused and the crime alleged, and the learned trial court was swept by the emotions rather than the cool logic while arriving at the decision in favour of the prosecution merely on a singular fact of the discovery of the dead body of the victim in proximity of the sleeping accused in the hut without door. 2 Cr.Appln.1390-2010.sxw 3 Countering these submissions, Mrs. Pai, the learned APP for the State argued that the involvement of the applicant-accused in the dastardly crime remained patent from the fact that the victim, who was known to him was found dead some 1 and 1½ feet distance from him in the hut belonging to his maternal uncle and her knicker as well as faecal material was found in close proximity of the dead body of the victim. She further argued that it was for the applicant-accused to explain the said circumstances which remained unexplained. Although his medical examination showed no signs of indulgence in sexual abuse by him, might be, she argued, the applicant-accused, after the act, took care to obliterate the tale-tell signs/marks on his person and went to sleep, thereafter. 4 Mrs. Pai, the learned APP, however, conceded that the semen was not detected on the clothes of the deceased and the accused, as well as in anal swab and oral swab collected from the body of the victim, and there was absence of semen or vaginal fluid in the washing of glan penis of the accused, and no blood or semen or vaginal fluid was detected on the pubic hair or nail clippings collected from the person of the accused in course of the forensic investigation in the present case. However, with reference to 3 Cr.Appln.1390-2010.sxw the affidavit dated 23.02.2011, Mrs. Pai, the leaned APP expressed fear of abscondance of the accused in case he being released on bail. 5 The evidence adduced in the present case clearly revealed that the incident had occurred in the area which was alive with the activity of Ganesh immersion at the material time and the victim was found lying dead in the open hut without any door. It is in this context, Shri Mundargi, the learned counsel for the applicant-accused argued that the possibility of the culprit keeping the dead body of the victim as well as her knickers inside the hut cannot be ruled out. 6 The evidence of the parents of the victim girl PW-1 Baban Chavan and PW-2- Rukmini Chavan disclosed that the accused and his maternal uncle were known to them and the hut of the maternal uncle of the accused where the accused was sleeping could be easily accessed from their hut directly as their hut was open from two sides. Spot panchanama (Exh.19) which is undisputed piece of evidence reveals some material circumstances-such as finding of (1) a knicker (half chaddi) with black stain (article-2) on the gunny bags inside the hut and (2) faecal material lying at the distance of half feet from the knicker. Inquest panchanama 4 Cr.Appln.1390-2010.sxw (Exh.18), another undisputed piece of evidence reveals that the victim was wearing blood stained frock (article-1) and blood was oozing from her private parts. There is credible evidence of the fact that the body of the deceased victim was found lying inside the said hut some 1 and 1 and ½ feet away from the sleeping accused at about 3.00 a.m. on 04.09.2009. 7 Autopsy examination done by PW-3 Dr. Nandrantna Paikrao on the body of the deceased victim Pooja revealed that Pooja met her end due to shock resulting on account of vaginal and anal tear with multiple injuries over body. As there is no direct evidence to answer the question raised from the detection of vaginal and anal tear on the body of the deceased victim Pooja one has to seek answers from the circumstances presented through the evidence in the present case. 8 The medical examination of the accused showed: i) absence of injuries on the body of the accused, particularly glan penis, ii) no abnormality with genitals of the accused, iii) absence of smegma. Forensic investigation revealed: i) detection of human blood on the frock (article-1)with stains of blood mostly appearing on the front, ii) absence of blood on knicker (half chaddi)- article-2 of the victim, and half T-shirt and 5 Cr.Appln.1390-2010.sxw jeans pant of the accused, iii) absence of semen on the clothes of the victim and the accused, iv) absence of semen in anal and oral swabs taken from the body of the deceased, v) absence of semen or vaginal fluid in the washing taken from the glan penis and sulcus of the accused, vi) absence of blood in nail clippings of the accused, vii) absence of semen or vaginal fluid in pubic hair of the accused, viii) absence of male specific Y STR DNA in vaginal swab and vaginal smear. However, inquest panchanama showed that the blood was oozing from the private parts of the deceased. Dr. Paikrao in his cross examination revealed that in a case of the person cautious about cleanness, there would be absence of smegma due to washing of penis and there may be number of reasons for disappearance of smegma. 9 On this background, the prima facie revelations in the evidence:- i) the accused was a local person known to the parents of the victim and friendly to the victim, ii) the deceased victim was found lying inside the said hut some 1 and 1 and ½ feet away from the sleeping accused at about 3.00 a.m. on 04.09.2009 with her knicker removed and lying on the gunny bags inside the hut, iii) faecal material lying at the distance of ½ feet from the knicker of the victim, iv) blood oozing from the private parts 6 Cr.Appln.1390-2010.sxw of the victim- make it unsafe, at this stage, to believe that some one else other than the accused could be the culprit. We are, therefore, satisfied that no case has been made out to grant bail. 10 The Criminal Application is, therefore, rejected. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.) 7