-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CONFIRMATION CASE NO. 01 OF 2006 CONFIRMATION CASE NO. 01 OF 2006 CONFIRMATION CASE NO. 01 OF 2006 (Reference made by the 9th Ad-hoc Additional Sessions Judge, Bombay) The State of Maharashtra .. Appellant. (Org. Complainant) V/s. Arjun Laxman Jogadiya alias Abdul Rehman Shaikh .. Respondent. (Org.Accused) --- Mrs. A.S. Pai, Addl.P.P. for the Appellant- State. Smt.Sushma Nair, Advocate for the Respondent-Accused. --- WITH WITH WITH CRIMINAL APPEAL NO. 243 OF 2006 CRIMINAL APPEAL NO. 243 OF 2006 CRIMINAL APPEAL NO. 243 OF 2006 Arjun Laxman Jogadiya ) .. Appellant. alias Abdul Rahman Shaikh ) (Org.Accused) at present in the Yerwada - ) Central Prison, Pune, ) r/o. Room No.10,Indira Nagar ) Near Junior Artist Office, ) Dr.E.Moses Road, Sat-rastha ) Dhobighat, Mumbai - 400 011. ) V/s. The State of Maharashtra ) .. Respondent. at the instance of Agripada ) (Org.Complainant) Police Station, vide ) C.R.No. 194/04, C.c.No.7/PW/05 ) Sessions Case No. 158/2005. ) --- Smt. Sushma Nair, Advocate for the Appellant-Accused. Mrs. A.S. Pai, Addl. P.P. for the Respondent -State. -: 2 :- --- CORAM : D. G. DESHPANDE CORAM : D. G. DESHPANDE CORAM : D. G. DESHPANDE S. A. BOBDE, JJ. S. A. BOBDE, JJ. S. A. BOBDE, JJ. DATED : 11TH AUGUST, 2006. DATED : 11TH AUGUST, 2006. DATED : 11TH AUGUST, 2006. ORAL JUDGMENT .: ORAL JUDGMENT .: ORAL JUDGMENT .: (Per Bobde,J.) 1. The learned Sessions Judge, Greater Bombay at Sewree, in Sessions Case No. 158 of 2005, has convicted the accused -Arjun Laxman Jogadiya alias Abdul Rehman Shaikh for offences punishable under sections 364, 366, 376, 377 and 302 as also under section 201 of the Indian Penal Code. The accused has been sentenced under section 302, to be hanged till death. The learned Sessions Judge has, therefore, referred the matter for confirmation to this court under section 366 of the Criminal Procedure Code. 2. Against the conviction and sentence, the accused has preferred Criminal Appeal No. 243/2006. Both have been heard together by us. 3. The case of the prosecution is that on 10.11.2004, the accused kidnapped an eleven year old girl by name Bhagyashree and then after having sex with her against the order of nature, raped her and then murdered her. -: 3 :- 4. The prosecution story is that at around 19.30 hours, Smt. Vaishali Nakase, mother of the deceased, visited her mother alongwith her children - Bhagyashree (deceased) and Santosh to see preparation for the Diwali festival which had begun. At about 23.00 hours Smt. Vaishali Nakase sent her daughter to bring some food articles. Her daughter Bhagyashree brought the articles and told the mother -Vaishali that she would come back in five minutes. Since she did not return till 23.30 hours, the mother went in search of her (Bhagyashree); initially to the house of her sister Nandini. Since she was not found there and in fact was nowhere to be found; at about 1.30 a.m.,after midnight, she lodged a complaint with Agripada Police Station, Mumbai that Bhagyashree was missing. 5. Later on when she inquired with her son Santosh, he told her that when Bhagyashree was returning, the accused known to the children as Arjun-Mama offered Chinese rice to them. Thereafter, the accused asked Santosh to proceed home and he proceeded with Bhagyashree towards the dog office. 6. On 11.11.2004, the complainant’s sister Manisha who resided in front of the Municipal Dog Office, -: 4 :- reported that some boy had noticed a leg of a female on the terrace of the dog office. Vaishali alongwith her sister Laxmi therefore, proceeded to the dog office. The police arrived at the spot. On the terrace, Laxmi identified the body as that of the deceased Bhagyashree. The body was brought down and identified by Vaishali also, who noticed some rice in her mouth and blood- stains on her frock and on the private parts. It was obvious that Bhagyashree had been raped and then murdered and her body was thereafter hidden on the terrace of the dog office. Soon thereafter, the Police treated Vaishali’s complaint as a part and parcel of the F.I.R. and registered an offence against an unknown person at about 17.45 hours. 7. During the course of investigation, the police drew inquest panchanama and sent the body for post- mortem. They seized several things including the frock and shoes of the deceased. They also seized a piece of bamboo mattress, some blood stained earth and chinese rice etc. from the spot. They recorded the statement of the accused u/s. 27 of the Evidence Act about the confession, seized clothes i.e. his pant, T-shirt and under- wear. They forwarded those articles to the chemical analyser. After receiving the C.A. report and on completion of the investigation, and producing the -: 5 :- accused persons before the Chief Metropolitan Magistrate, a charge-sheet was filed by the police. The case was then committed for trial to the Sessions Court. 8. The accused was charged. He pleaded not guilty. 9. Upon considering the entire evidence led by the prosecution and hearing the accused, the learned Sessions Judge, found the accused guilty and convicted him for the offence punishable under the following sections of the Indian Penal Code :- i) For the offence punishable u/s. 364 of IPC and sentenced to suffer imprisonment for life and fine of Rs. 500/- in default to suffer two months R.I.. ii) For the offence punishable u/s.366 of IPC and sentenced to suffer imprisonment for ten years R.I. and fine of Rs. 200/-, in default to suffer two months R.I.. iii) For the offence punishable u/s. 376 of IPC and sentenced to suffer ten years R.I. and fine of Rs.200/- in default to suffer two months R.I.. -: 6 :- iv) For the offence punishable u/s. 377 of IPC and sentenced to suffer life imprisonment and fine of Rs.200/-, in default to suffer two months R.I.. v) For the offence punishable u/s. 302 of IPC and sentenced to suffer death. He be hanged till his death. He is further sentenced to pay fine of Rs. 500/- in default to suffer two months R.I.. vi) For the offence punishable u/s. 201 of IPC and sentenced to suffer seven years R.I. and fine of Rs. 200/- in default two months R.I.. vii) These punishments were directed to run concurrently. 10. What falls for our consideration is whether the sentence imposed by the learned Sessions Judge is liable to be confirmed; and the Appeal filed by the Accused. 11. There is no eye witness to the actual act of -: 7 :- rape, the unnatural offence and murder. The evidence as to the complicity of the accused is circumstantial, mainly, comprising of the fact that he was last seen with the deceased. The other kind of evidence in regard to the complicity of the accused comes from the chemical analysis of all things recovered by the prosecution, particularly in relation to the blood of the deceased found on the clothes of the deceased and the accused. 12. In determining the complicity of the accused in such a case, the question with whom the deceased was last seen, assumes importance. The prosecution has examined four witnesses who testified that the deceased was last seen with the accused. They are the complainant-P.W.1 Vaishali Anand Nakashe, who is the mother of the deceased; then P.W.2-Manisha, the complainant’s sister and aunt of the deceased, who resides near the dog house; P.W.3-Sambhaji Ramji Pawar, the person who runs a Chinese Rice Stall and P.W.4- Santosh, the younger brother of the deceased. 13. The mother of the deceased Vaishali deposed that on 10.11.2004 when the deceased Bhagyashree told her at about 10.00 p.m. that she would come back within five minutes, but did not; she went out in search of the deceased. She inquired with her sister Nandini and with -: 8 :- other relatives, but did not find the deceased. She, therefore, lodged a complaint with the Agripada Police Station at 1.00 a.m. that her daughter Bhagyashree was missing. After she came home, she again asked her son Santosh about his sister. He told his mother -Vaishali that when Bhagyashree brought flour, she met the accused who was known to them as Arjun Mama. He (accused) told her (the deceased) that he would treat her to Chinese rice and he then took her. She then went looking for the accused in his house. She found the accused frightened and in an intoxicated condition. This witness identified the accused before the court also. Santosh has in his own deposition elaborated on the events. Later on some children who were playing near the dog house which appears to be a hospital for dogs, noticed a leg of a small female child on the terrace. The leg was actually protruding from under the garbage and debris. Vaishali’s sister Manisha, who was residing near the dog hospital, learnt about the incident and informed Vaishali. When Vaishali visited the dog hospital the police also arrived on the scene. They went to the terrace of the dog hospital and found the body of a female child, which was identified by this witness as her daughter -Bhagyashree from her chappals, bangles etc.. The mother Vaishali also noticed some chinese rice in the mouth of her daughter and blood on -: 9 :- her private parts and on her frock and scratches on her neck. 14. The mother deposed that her daughter used to call the accused as "Arjun Mama" and he used to call her as "Lale, Pade" affectionately. She also stated that the accused frequently gave her money and sweets. 15. The sister of PW-1 -Smt.Manisha Jadhav, who is aunt of the deceased resides near the dog hospital. She found that around 11 p.m. her niece, i.e. the deceased Bhagyashree, and her brother Santosh were with the accused near a rice stall. They had purchased some rice and were standing near the dog office. She told the court that around 11.30 p.m.her sister Vaishali had come, inquired about Bhagyashree and they then together went to the house of the accused - once at 12.00 at night and then at 2.00 a.m.. On the later occasion, the accused got annoyed and had a quarrel with them. On the next day, she received information that some children were playing and noticed a leg of a female child on the terrace of the dog office. She saw the body and identified it. There was some chinese rice in the mouth of the deceased and her frock was stained with blood and there were blood stains on her underwear. -: 10 :- 16. The brother of the deceased deposed before the court that at 11.30 p.m. when he was with his sister Bhagyashree near the dog office, the accused who was known to them as "Arjun Mama" came there and asked the deceased if she would have chinese rice. Then both of them alongwith the deceased went towards the chinese stall. There the accused purchased two plates of chinese rice. The accused then asked this boy to go to his house and he then took his sister Bhagyashree towards the dog house. This witness has denied the suggestion that he was tutored by his mother and the police. 17. Regarding the evidence of P.W.1- Vaishali Anand Nakashe, P.W.2- Manisha Maruti Jadhav and P.W.4- Santosh Anand Nakashe, Mrs. Nair, the learned counsel for the accused contended that there are discrepancies in their evidence regarding the happening on that night. The cumulative evidence of the three is that P.W.1 had gone to her mother’s house for making preparation for the Diwali. Deceased Bhagyashree and Santosh P.W.4 were with her, from there she sent Bhagyashree to home to bring some flour. Then Bhagyashree brought flour, and then went away about which Santosh P.W.4 says he saw Bhagyshree going along with Arjun Mama-the accused and Manisha P.W.2 also saw Bhagyashree in the company of -: 11 :- accused, which according to the prosecution is the evidence for last seen together. According to Mrs. Nair, firstly, from the house of Manisha or house of the mother of P.W.1, the shop of P.W.3 who sold Chinese rice to the accused was not visible, secondly, according to her there was no explanation that Santosh did not narrate to his mother about Bhagyashree going with the accused at the first instance. 18. We do not find any anomaly in the evidence of these three witnesses, it has to be remembered that Santosh is a boy of eight years of age and he might have not understood the significance of seeing Bhagyashree with the accused. The fact that in the first missing complaint name of the accused is not disclosed, clearly shows that till the missing complaint was lodged, P.W.1 was not knowing that Bhagyashree had gone with the accused. About evidence of Manisha P.W.2 that she saw the accused and Bhagyashree near the stall of P.W.3 Sambhaji, nothing has been brought in the cross examination of these three important witnesses about the distance, situation and location of their respective houses and the stall of P.W.3. Therefore, these arguments of Mrs. Nair, are required to be rejected. 19. A crucial piece of evidence was brought before -: 12 :- the court through witness Sambhaji Pawar-P.W.3, who runs the chinese stall, referred to by the other witnesses. This witness PW-3 deposed that he runs a chinese stall, which serves chinese rice. The stall is at about 14 to 15 feet away from the dog house. On that day, he closed the stall at about 12 at night. At about 11 p.m., the accused Arjun Jogadia, whom he knew for the last 10 years, came to the stall alongwith the deceased Bhagyashree and her brother Santosh. The accused ordered two plates of half chicken rice. He categorically deposed that then the accused proceeded alongwith Bhagyashree towards the dog office. The credibility of this witness was sought to be shaken by the learned counsel for the accused on the ground that he visited the police station on 13.11.1004 when the incident was discovered on 11.11.2004. We see no merit in this criticism since this witness has clearly stated that he was called by the Police to the police station on 12.11.1004, but he could not meet the police on that day and he visited on 13.11.2004. 20. Regarding the evidence of PW-3 - Sambhaji Pawar, Mrs.Nair, the learned counsel for the accused also contended that if this witness was busy in looking after his customers at that night, then it was impossible that he noted Bhagyashree with the accused. She also stated -: 13 :- that the delay of two days in recording the statement creates strong suspicion. We are not convinced by this argument. The witness has explained in his cross examination that even though the police had called him he used to be busy in business from 6 p.m. to 12 p.m. and therefore he could not contact the police on 11.11.2004 and 12.11.2004 and then gave statement when the police contacted him on 13.11.2004. We also do not find any substance in the submissions that this witness had no reason to note Bhagyashree with accused at the relevant date and time because witness was knowing the accused since more than 10 days. He was also knowing Bhagyashree as she was residing in his neighbourhood, and, therefore, if the accused went there with a girl not related to him, then it was natural for this witness to remember having seen accused and Bhagyashree at the relevant time and place. 21. From the above evidence there is no doubt that the deceased was last seen in the company of the accused on the night of 10.11.2004 at around 11.00 p.m. and furthered the accused to the chinese rice stall and then the accused proceeded with the deceased towards the dog house, on the terrace on which the body of the deceased was found. -: 14 :- 22. The learned counsel for the accused submitted the circumstance of the accused being last seen with the deceased, is not sufficient to implicate the accused. She relied on two decisions of the Supreme Court i.e. in the case of Ramreddy Rajeshkhanna Reddy & Anr. vs. Ramreddy Rajeshkhanna Reddy & Anr. vs. Ramreddy Rajeshkhanna Reddy & Anr. vs. State of A.P., reported in 2006 ALL MR (Cri) 1533 tate of A.P., reported in 2006 ALL MR (Cri) 1533 tate of A.P., reported in 2006 ALL MR (Cri) 1533 (S.C.); and in case of Bodhraj alias Bodha and others Bodhraj alias Bodha and others Bodhraj alias Bodha and others vs. State of Jammu and Kashmir, reported in (2002) 8 vs. State of Jammu and Kashmir, reported in (2002) 8 vs. State of Jammu and Kashmir, reported in (2002) 8 Supreme Court Cases 45. Supreme Court Cases 45. Supreme Court Cases 45. In both these cases, the Supreme Court has held that the last seen theory applies where the time gap, between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. 23. Applying the principles of these two cases, we find no reason to discard the circumstance of the accused having been last seen with the deceased in this case. The time gap between the time the accused was last seen i.e. on 10.11.2004 at 11.00 p.m. and when the deceased was found dead i.e. in the afternoon on 11.11.2004 on the terrace of the dog office, do not suggest that the author of the crime was not the accused particularly, having regard to the other circumstances. It must be noted that the deceased was found dead within -: 15 :- a period of about 12.00 hours after she was last seen with the accused. The body was noticed by PW-8, a boy who climbed onto the terrace at about 11.30 a.m. in search of the cricket ball. Even before that, it must be noticed that the mother of the deceased had found her missing at around 11.30 p.m. on the previous night itself. Having regard to the tender age of the deceased, who was a young girl, there is no reason to imagine that she would wander at night on her own, after having gone with Arjun Mama, the accused, to have rice. We, therefore, reject the suggestion that there is possibility of any other person being author of the crime, keeping in view the circumstances of the case and other evidence which is dealt with later. 24. The body was found by PW-8, a boy whose name is Sahebali Shahabuddin Shaikh, aged about 17 years, who deposed that on 11.11.2004 he was playing cricket near the dog office with some other boys. The ball went on the terrace of the dog office. The boy climbed on the terrace with the help of a grill and noticed a woman’s leg on the terrace. He found some earth on the leg. This boy stepped down from the terrace and shouted and he was there when the police came on the scene. 25. The condition in which the body was found on the -: 16 :- terrace is found in the deposition of PW-10 Sadanand Laxman Rasam, one of the Investigating Officers. He stated that he climbed on the terrace and noticed a leg of one child, hidden under the debris and garbage. They removed debris and garbage, which covered the body, in the presence of the panchas and found the body of the deceased covered by blood stained frock. He noticed that the blood was oozing from the private parts of the body and there was blood in the anus. The body had other blood stains and marks on the neck. The circumstances in which the body was found is a clear pointer to the homicidal nature of the death. 26. The body was sent for post mortem and was examined by doctor Shailesh Chintaman Mohite, PW-7, who deposed that an extreme amount of force has been used at the time of commission of sexual offence on the deceased girl, which apart from rape, included anal intercourse. The doctor noticed several external injuries on the body of the deceased in the form of abrasions on the forehead, on both sides of neck, on the cheeks, over the shoulder near neck, knees, thighs, legs, wrist joint and the buttock. Most of the injuries are ante-mortem. The posterior fourchette was totally lacerated. Vaginal muscles layer was seen. There was a tear in the vaginal muscles. The hymen was totally lacerated from 3’O clock -: 17 :- to 9’O clock. The anal orifice was torn and showed irregular margins. There is nothing in the cross-examination which shakes the testimony of the doctor that extreme amount of force was used at the time of the sexual offence or the doctor’s deposition that the death was due to asphyxia, due to throttling and due to rape and the girl was unable to obstruct the person who committed rape, unnatural intercourse and murder. 27. The medical evidence was criticized by the learned counsel for the accused on the ground that the exact time of death is not mentioned in the post mortem report. However, we find that for the present case this is not of much significance. The learned counsel for the accused also tried to take advantage of the fact that the examination of the stomach of the deceased did not reveal any digested food particles of chicken and pointed out that the chinese rice stall’s owner has stated in his evidence that the accused had ordered chicken rice. It is a fact that digested food particles did not refer to the chicken. That may be simply possible due to the fact that the deceased did not consume chicken. In any case this has no substantive impact on culpability of the accused. The medical evidence clearly points out the fact that the victim was throttled to death with bare hands after anal -: 18 :- intercourse and rape was committed. 28. The main question that requires consideration is as to the evidence which implicates the accused. The investigating officer, PW-9 -Ashok Sahebrao Salunkhe, seized from the terrace chinese rice, shoes, clothes and mattress. The investigation officer also seized at the instance of the accused from his house his clothes, T-shirt, half pant and underwear which was kept below the cot in his house. This also found to be stained with blood. A panchanama Exh. 26 was drawn in that regard. The investigation officer also seized a frock, white underwear, mattress (chatai), black shoes, piece of cloth and identified them before the court. A panchanama at Exh. 28 was drawn in this regard. These items were also identified by the other investigation officer Sadanand Laxman Rasam. 29. Mrs. Nair also launched attack on the evidence of the prosecution relating to discovery of the clothes of the accused at his own instance. For proving these discoveries, the prosecution examined PW-5 -Raghunath Krishan Vulmukhe. He is a panch witness. He was called by the police to hear what the accused is going to show. He identified the accused in the court and then stated that the accused told in the police station that he has -: 19 :- kept his clothes in his house and he is ready to point out these clothes. A panchanama was prepared as Exh. 25, which was singed by him and other panchas, police officers, and the accused. Then the accused led them to a house. One person opened the house. He was the brother of the accused and then the accused took out the bag, which was kept below one cot and took out one under- pant, one T-shirt and half pant. There were