:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.1020 OF 2001 APPEAL NO.1020 OF 2001 APPEAL NO.1020 OF 2001 State of Maharashtra ..Appellant Vs. Vs. Vs. Haresh Mohandas Rajput, Age 40 years, 223, Adarshnagar, Pimpri, Pune. ..Respondent Mr.A.R.Patil, A.P.P.for the Appellant. Smt.Sharmila Kaushik, appointed for the Respondent. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL NO.401 OF 2002 APPEAL NO.401 OF 2002 APPEAL NO.401 OF 2002 Haresh Mohandas Rajput, Convict No.C - 12311, Yerawada Central Prison, Pune - 411 006. ..Appellant Vs. Vs. Vs. State of Maharashtra ..Respondent Smt.Sharmila Kaushik, appointed for the Appellant. Mr.A.R.Patil, A.P.P.for the Respondent. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. JUDGMENT JUDGMENT JUDGMENT RESERVED ON 26TH SEPTEMBER,2007 RESERVED ON 26TH SEPTEMBER,2007 RESERVED ON 26TH SEPTEMBER,2007 JUDGMENT JUDGMENT JUDGMENT PRONOUNCED ON 11TH JANUARY,2008 PRONOUNCED ON 11TH JANUARY,2008 PRONOUNCED ON 11TH JANUARY,2008 JUDGMENT JUDGMENT JUDGMENT (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) 1. By filing the above Appeal No.1020 of 2001 the Appellant-State is seeking the enhancement of sentence awarded to the Respondent-original accused by the Additional Sessions Judge,Pune. Whereas, by filing :2: the Appeal No.401 of 2002, the original-accused is challenging the judgment and order of conviction and the punishment of Life Imprisonment awarded for the offences punishable under Section 376 and 302 of the Indian Penal Code by the learned Additional Sessions Judge, Pune. 2. The facts of the case in a nutshell are, as under:- . The family of original Complainant was doing small business of selling of edibles and handkerchiefs & socks on the streets in Pune. Complainant (P.W.No.1) is the mother of victim girl, P.W.No.2 Ashok Kriplani is the husband of Complainant and P.W.3 Nitesh and Madhuri are their children. The accused Haresh Rajput is the neighbour of complainant and he was residing with his son Khushal and his old mother and he was working in a liquor shop and was alleged to be addicted to liquor. 3. On 24th October,1999, Sunday and being a day of "Kojagiri Pournima", the Complainant and her husband had been to Shagun Chowk for their routine business of selling small items and they were also accompanied by their children. However due to irritation caused by the children, the Complainant sent her children back to their home. Accordingly at about 4.00 pm. Nitesh with his two sisters had :3: returned to their home. After returning home, the children were playing in front of their house, and at that point of time, the Respondent-original accused was also there in front of his house which was opposite to the house of the Complainant. The Appellant’s mother and son Khushal had been to Kalyan to bring some medicines to control the alcoholic problem of the Appellant, hence Appellant was alone. After some time Nitesh and his sister Madhuri had realised that their victim sister was not seen around, they searched for some time and thereafter they rushed to their mother and informed about it, accordingly their mother Tara took search of the victim girl and had enquired about her with her relatives and due to failure in search, finally at about 9.30 p.m. on the same day, she had lodged a complaint with the Pimpri Police Station. 4. It is the case of the prosecution that when Khushal and his grand mother returned to their house, the accused was in the house and that the lights were off. After their arrival Khushal had put on the lights, however, accused scolded him and he put off the lights. At that time Khushal saw a hand below the cot and went in the kitchen room for tea. Thereafter the accused followed Khushal in the kitchen and had confessed that he had committed murder of victim girl and had also threatened Khushal not to go out. However Khushal ran out and had directly been to the :4: Police Station and had narrated about the incident to the Police, while the Police were recording the missing complaint of Tara i.e. mother of victim girl. Immediately, thereafter the Police rushed to the house of accused and took search and found the dead body of victim girl below the cot at the house of the accused. The dead body of victim girl was taken out on a hand-cart, her clothes were blood stained and immediately the accused was taken into custody, who was present there. 5. Thereafter the Police Sub-Inspector Ravindra Pawar had visited the spot and conducted spot panchanama, seized the blood stained bed-sheet and cloth pieces, took samples of blood stains on the floor and also had recorded statements of witnesses. One Dr.P.D.Rokade (P.W.No.7) attached to Y.C.M.Hospital had conducted the post mortem of the body of the victim girl on 25th October, 1999 and had opined that the death was caused by asphyxia due to strangulation associated with sexual assault and accordingly Post Mortem report was prepared. P.W.No.12 Dattatraya Indulkar Assistant Police Inspector had registered the offence and further investigated the offence. The clothes of the accused were seized and accordingly prepared a panchanama and thereafter the accused was referred to Sasoon Hospital for a medical examination. On 28th October,1999, the accused while he was in Police Custody made a :5: statement that he will produce a small rope from his house which was kept in between a space of tin-roof and the wall. Accordingly, the said rope had been seized by the Police and thereafter all articles were sent for Chemical Analysis and after completion of investigation, a charge sheet came to be filed against the accused in the Court of Judicial Magistrate, First Class, Pimpri, thereafter the trial was conducted in the court of Additional Sessions Judge, Pune. 6. It appears that to establish the guilt of the accused, the Prosecution had examined P.W.1 Tara mother of victim, P.W.2 Ashok father of victim, P.W.3 Nitesh brother of victim, P.W.4 P.H.C. Gautam More, P.W.5 and P.W.9 Panch witnesses, P.W.6 Police Constable Warpe, P.W.7 Dr.Rokade Medical Officer, P.W.8 Deepak Agarwal relative of victim, P.W.10 Khushal son of accused, P.W.11 and P.W.12 Investigating Officers. 7. Perused the evidence on record and heard Mr.A.R.Patil, the learned A.P.P. for the Appellant-State and Smt.Sharmila Kaushik, the learned Counsel for the accused. 8. To support the case of prosecution the learned A.P.P. for the State pointed out from the evidence certain incriminating and proved circumstances against the accused such as the incident had occurred in the :6: house of accused and the accused was present in front of his house when the rape victim and her sister and brother were playing in front of their house and at that point of time the accused offered chocolates to them and the rape victim also took the chocolate. During the said period the accused had an opportunity to take the victim inside his house. The accused was present in the house when Police had been to the house of accused, and recovered the victim’s body from underneath the cot of the Appellant. There was absolutely no explanation from the Appellant about the dead body of victim girl found under his cot as well as no explanation about the blood stains on the bed-sheet and below on the floor. The medical evidence also fully corroborates the prosecution’s case. 9. It is also further contended by the learned A.P.P. that in the instant case there is no eye-witness and the prosecution case is solely based on circumstantial evidence. It is also contended that presence of the accused after committing the crime in his house, recovery of dead body of victim in the house of accused and production of a rope from the gap between the tin and the wall by the accused himself, which was used for strangulating the victim girl, all the aforesaid circumstances clearly support the case of prosecution to establish the guilt of the accused. :7: 10. The present Appeal for enhancement is filed by the Appellant-State mainly on the ground that in view of the aggravating circumstances prior to commission of offence, at the time of commission of offence and subsequent conduct of the accused, after commission of murder of victim girl who was hardly of 10 years old and subsequent concealing the dead body of the deceased with a view to destroy the evidence, and the manner in which the accused had committed rape on the victim girl who was hardly ten years old, the learned Additional Sessions Judge, Pune ought to have imposed the extreme sentence of death upon the accused, especially when the accused would be a serious menace to the society. 11. The learned A.P.P. Mr.Patil for the State pointed out certain aggravating circumstances to support the case of the prosecution for enhancement of sentence to death sentence. It is contended by Mr.Patil that it is very much relevant to appreciate the injuries sustained by the deceased victim girl to know the gravity of physical and sexual assault on the person of deceased victim girl. P.W.No.7 Dr.Rokade had conducted an autopsy on the dead body of the victim girl on 25th October,1999 and found following injuries on the private part of the deceased : a) Contused abrasions over the labia majora from the junction behind and backward size 1 x 0.24 cms/oblique. :8: b) Crescent mark on the labia majora near the clitoris size 0.24 cms. c) Abrasions with radial from the labia minora behind and backward noted. d) Fourchette torn radially and bruised. e) Posterior commissure torn. f) Hymen lacerated along 3 and 9 o’ clock position with bruised vaginal vault behind it. g) Multiple contused abrasions seen over the left thigh 2 cms. away from perinium of 0.12 to 0.2 cms. h) Vaginal vault with irregular tear upto 2.5cms. 12. The Doctor found following external injuries on the dead body of victim girl:- a) Contused abrasion Lt.frontal eminence size 0.24 x 0.24 cms. single. b) Crescent abrasion right upper lip lateral aspect size 0.5 x 0.25 cms. horizontal. c) Contusion Rt.ala of nose 0.5 x 0.5 cms. d) Contusion Rt.orbital place 2 cms below the outer canthus, size 1 x 0.25 cms. oblique. e) Crescent contused abrasion Rt. angle of mouth 0.25 x 0.25 cm. f) Contused abrasion Rt.cheek 4 in 1 below another with 1 cm apart oblique in direction of size 1.5 x 0.5 cm. g) Ligature mark around the neck over the thyroid cartilage extending from Lt.Sternocnedomastoid upto the Rt.posterior triangle of neck size 15 cm. x 1.5 cm.on Lt. and 1 cm. on Rt. side. h) Ligature mark is 7 cm. below Lt.ear 6.5 cm. below chin and 8 cm.below Rt.Ear and is more prominent on Lt.side. i) Contusion Rt.anterior triangle of neck 2 cm. x 0.5 cm.irregular. j) Crescent abrasion over Rt.forearm and wrist 7 in no. of 0.1 to 0.25 cm. and 1/2 cm. apart. :9: k) Old unhealed seen over the Lt.knee with recent scab removal (granulation tissue seen size 2 x 1 cm and 3 x 2 cm) 13. The Doctor also found the following corresponding internal injuries on the dead body of the victim girl:- a) The brain was soft. Edematous with pretecheal hemorrhage noted. C/s. congested. b) Contusion over the Lt.side of trachea below the cornea of hyoid, thyroid membrane contused internally,larynx and epiglotis congested and haemorrhagic. c) Both lungs were partially collapsed purple, sub-petecheal hemorrhage noted. Out section congested with edematous froth seen. d) Heart was externally normal. Out section of Rt.side was filled with dark blood. Lt. side empty. e) Tongue was in between the teeth, anteriorly bruised. f) All other organs were congested. Organs of generation were contused and hamorrhagic. g) Vaginal vault with irregular tear up to 2.5cm. 14. After having found all the above injuries, the Doctor came to a firm conclusion that the injuries were homicidal and anti-mortem in nature and cause of death was due to asphyxia by strangulation, associated with sexual assault. The external and corresponding internal injuries caused to the neck by strangulation were found to be sufficient in the ordinary course of nature to cause the death of the victim girl. Doctor also gave his firm opinion about the forcible sexual assault having been made on the deceased. :10: 15. The learned A.P.P. appearing on behalf of the Appellant-State submitted that since all the above injuries have been proved by the medical evidence, and as all the necessary circumstances were clearly established, it is sufficient to prove the guilt of the accused and accordingly, the prosecution has proved its case beyond reasonable doubt and therefore contended that considering the act of accused i.e. the accused had in a pre-planned manner committed the crime by resorting to a diabolical method of enticing a young and tender girl hardly ten years old, with chocolates and it was with the clear object to take the victim at a lonely place in the house of accused to execute his dastardly act. It is further submitted by the learned A.P.P. for the State that the accused seems to have acted in a beastly manner since after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others and also with a view to destroy the evidence of his crime the accused had put an end to the life of an innocent victim girl who had seen only ten summers. 16. Mr.A.R.Patil, the learned A.P.P. appearing on behalf of the State strongly contended that the evidence on record clearly shows the fact as to how diabolically the accused had conceived of his plan and brutally executed it and such a calculated, :11: cold-blooded and brutal murder of a girl of a very tender age i.e. 10 years old after committing rape in a very brutal manner, (Eight injuries were seen on the private part of the victim girl) and killing her brutally would undoubtedly fall in the category of rarest of the rare case and therefore it would attract no punishment other than the capital punishment and therefore it is submitted that the sentence of life imprisonment is inadequate in such a case. Mr.Patil also submitted that the accused would be a serious menace to the society also. 17. Mr.Patil, the learned A.P.P. further submitted that in view of the medical evidence and the state in which the dead body of deceased was found, undoubtedly, it is clear that a most heinous type of barbaric rape and murder was committed on a helpless, defenceless and a tender girl of 10 years old. It is further submitted by learned A.P.P. that the offence committed by the accused is not only inhuman and barbaric but it is a ruthless crime of rape followed by cold-blooded murder is an affront to the human dignity of the society and also there are no mitigating circumstances in favour of accused in the present case. 18. Mr.A.R.Patil, the learned A.P.P. for the State referring to the observations made in paragraph No.18 of the judgment of the learned Additional :12: Sessions Judge, Pune vehemently contended that there is no dispute about the occurrence of the incident and the dead body of the victim girl was found in the house of accused. He further contended that taking into account the nature of offence and the act of the accused, this is a fit case where a Death Sentence ought to be imposed. 19. In that behalf, the learned A.P.P. has relied upon a decision of the Hon’ble Supreme Court in the case of State of U.P. Vs. Satish AIR 2005 - SC 1000 State of U.P. Vs. Satish AIR 2005 - SC 1000 State of U.P. Vs. Satish AIR 2005 - SC 1000, wherein the Hon’ble Supreme Court had referred to the following guidelines laid down in Bachan Singh Vs. Bachan Singh Vs. Bachan Singh Vs. State State State of Punjab (1980) 2 SCC 684, of Punjab (1980) 2 SCC 684, of Punjab (1980) 2 SCC 684, will have to be applied to the facts of each individual case where the question of death sentence arises:- i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. ii) Before opting for the death penalty the circumstances of the "offender" also are required to be taken into consideration along with the circumstances of the "crime". iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up :13: and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 20. Mr.Patil further relied upon a decision of the Hon’ble Supreme Court in the case of Kamta Tiwari Vs. Kamta Tiwari Vs. Kamta Tiwari Vs. State State State of of of M.P. (1996) 6 SCC 250, M.P. (1996) 6 SCC 250, M.P. (1996) 6 SCC 250, wherein the Appellant had kidnapped the deceased and after committing rape on her, had strangulated her to death and thrown the dead body in a well. The Hon’ble Supreme Court in the said case had followed the guidelines framed in the case of Bachan Singh Bachan Singh Bachan Singh(Supra) and had dismissed the appeal filed by the Appellant, who was awarded death penalty. 21. The learned A.P.P. for the State also referred to and relied upon a decision of the Hon’ble Supreme Court in the case of Dhananjoy Chatterjee Dhananjoy Chatterjee Dhananjoy Chatterjee Alias Alias Alias Dhana Vs. State of West Bengal, 1994 SCC (Cri) Dhana Vs. State of West Bengal, 1994 SCC (Cri) Dhana Vs. State of West Bengal, 1994 SCC (Cri) 358 358 358, wherein in paragraph Nos.14 & 15 it is observed that; 14. In recent years, the rising crime rate - particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has :14: been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. 22. The learned A.P.P. also referred to and relied upon a decision of the Hon’ble Supreme Court in the case of Molai and another Vs. State of Madhya Molai and another Vs. State of Madhya Molai and another Vs. State of Madhya Pradesh Pradesh Pradesh AIR 2000 SC 177, AIR 2000 SC 177, AIR 2000 SC 177, wherein the Hon’ble Supreme Court has observed that; 37. We have very carefully considered the contentions raised on behalf of the parties. We have also gone through various decisions of this Court relied upon by the parties in the courts below as well as before us and in our opinion the present case squarely falls in the category of one of the rarest of rare cases, and if this be so, the courts below have committed no error in awarding capital punishment to each of the accused. It cannot be overlooked that Naveen, a 16 year old girl, was preparing for her Class 10th examination at her house and suddenly both the accused took advantage of she being alone in the house and committed a most shameful act of rape. The accused did not stop there but they strangulated her by using her undergarment and thereafter took her to the septic tank along :15: with the cycle and caused injuries with a sharp-edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned Counsel for the accused (appellants) could not point any mitigating circumstance from the record of the case to justify the reduction of sentence of either of the accused. In a case of this nature, in our considered view, the capital punishment to both the accused is the only proper punishment and we see no reason to take a different view than the one taken by the courts below. 23. The learned A.P.P. has also relied upon a decision of the Hon’ble Supreme Court in the case of Laxman Laxman Laxman Naik Vs. State of Orissa (1994) 3 SCC 381 Naik Vs. State of Orissa (1994) 3 SCC 381 Naik Vs. State of Orissa (1994) 3 SCC 381, wherein it is held that; 28. The evidence of Dr.Pushp Lata, PW 12, who conducted the post-mortem over the dead body of the victim goes to show that she had several external and internal injuries on her person including a serious injury in her private parts showing the brutality which she was subjected to while committing rape on her. The victim of the age of Nitma could not have even ever resisted the act with which she was subjected to. The Appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the Appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment and consequently we confirm the sentence of death imposed upon the Appellant for the offence under Section 302 of the Penal Code. As regards the punishment under Section 376, neither the learned trial Judge nor the High Court have awarded any separate and additional substantive sentence and in view of the fact :16: that the sentence of death awarded to the Appellant has been confirmed we also do not deem it necessary to impose any sentence on the Appellant