32.judg.cc.2-09&cra.379-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CONFIRMATION CASE NO.2 OF 2009 (Reference made by the Additional Sessions Judge, Vasai, Dist.Thane) IN SESSIONS CASE NO.197 OF 2007 The State of Maharashtra. ..Appellant. [Orig.Complainant] Versus Shri Virendra @ Shahrukh Khan Vasudeo Sada. ..Respondent. [Orig.Accused] WITH CRIMINAL APPEAL NO.379 OF 2009 Virendra @ Shahrukh Khan Vasudeo Sada, Age : 24 years, residing at Achola Dongri Adarshanagar, Padkhalapada, Nalasopara(East). (the accused is in Nagpur jail) ..Appellant. [Orig.Accused] Versus The State of Maharashtra, at the instance of Nalasopara police station. ..Respondent. [Orig.Complainant] .......................... Ms.Sarojini Upadhay, Advocate for the Appellant in Cri.Appeal No. 379 of 2009. Mr.P.A. Pol, Public Prosecutor with Mrs.S.D. Shinde, A.P.P., for the Respondent - State. .......................... 32.judg.cc.2-09&cra.379-09 2 CORAM : BILAL NAZKI AND A.R. JOSHI, JJ. DATE : 08TH OCTOBER, 2009. JUDGMENT (Per Bilal Nazki,,J.) :- 1. This is a reference made by the Additional Session Judge, Vasai seeking confirmation of the conviction and sentence passed by her in Sessions Case No.197 of 2007. The accused has also filed an Appeal against the judgment of the trial Court. Both these matters are heard together. We have heard the learned Counsel for the appellant/accused as well as the learned Public Prosecutor for State and perused the record. 2. Before going to discuss the evidence in the case, we find it important to observe that there is no glory in awarding death sentences and the Judges should not have some sense of achievement if they award punishment of death. Life is a precious thing to be preserved and not to be ordered to be taken away without compelling reasons. The law is well settled and recognizes that death sentences is a necessary evil 32.judg.cc.2-09&cra.379-09 3 and, therefore, is awarded in rarest of rare cases. We find in this case that the sentence of death has been given by the learned Judge in a case which was a case of acquittal; and if the Judges award death sentences in cases where there is no evidence against the accused, then we feel that the whole judicial system will collapse and people will loose faith in the Courts. This is a case in which either the investigating agency was not able to find the real culprit or knew the real culprit but did not want to proceed against him and proceeded against a poor man who came from the State of Bihar and was working as a labourer. The man is so poor that even after he was sentenced to death, nobody from his family in Bihar could afford to come even to see him at Mumbai. Therefore, the police must have thought that if this man goes to gallows there would be nobody to even weep for this poor helpless man. 3. While awarding death sentence or for that matter while awarding any sentence, a Judge has to ensure that he has sufficient evidence and that the law supports him. There are 32.judg.cc.2-09&cra.379-09 4 sentences which after reversal can undo damage but there are sentences which are irreversible. Therefore, if a person is executed and the judgment is found to be erroneous, the damage done cannot be reversed. Therefore, Courts are expected to take much more care in handling cases where the Judges award death sentences. If a life is finished or ended, it cannot be brought back. It should also be remembered that granting life or taking life is a divine function and if a man is bestowed by the almighty with the power he has reserved for himself, then a Judge is expected to discharge this responsibility with the seriousness and also with sincerity. Now with these observations, we come to the facts of this case. 4. The prosecution case was that the accused came to the complainant's house, offered him liquor as they were neighbours. The complainant refused to take liquor but provided glass to the accused and also provided water so that the accused could drink liquor in the complainant's house. Later on, after having drink the accused asked the complainant that he would take his daughter, who was 7 & 32.judg.cc.2-09&cra.379-09 5 1/2 years old and son who was slightly younger, to a shop and will provide them biscuits. The complainant readily agreed. The accused took the two children with him to a shop and gave them biscuits. The boy returned to the house, but, the girl did not. This happened on 4.1.2006 and the body of the girl was found on 10.1.2006 near bushes after discovery was made by the accused who had been arrested on 7.1.2006. On the basis of these allegations, charges were framed against the accused under Section 363, 376(2)(f), 376(2)(g), 302 and 201 r/w. 34 of Indian Penal Code. The prosecution had also claimed that after the complainant left the house of the complainant with two children, another man was waiting for him outside the house of the complainant. The accused, his friend namely Vijay Zha committed rape and murder of the child. Vijay Zha was absconding and did not face trial. 5. Although the child did not return to her house on 4.1.2006, no report was filed by the parents of the child till 7.1.2006. The accused pleaded not guilty and claimed to be tried. The prosecution examined eight witnesses in all. The defence did 32.judg.cc.2-09&cra.379-09 6 not examine any witness. 6. The prosecution tried to establish the guilt of the accused on the basis of three circumstances. The first circumstance was that the child was last seen with the accused and had left the house in the company of the accused. The second circumstance was that the child was seen by the shopkeeper in the company of the accused from where the accused had purchased biscuits for the child, and the third circumstance was that the body of the deceased child was recovered on a statement of disclosure made by the accused. 7. As far as the first circumstance is concerned, the prosecution examined mother and father of the deceased. PW-1 is the father. He stated that the accused was residing adjacent to his house at Nalasopara. On 4.1.2006 at about 7:30 p.m. there was Pooja in his house. Accused came to his house and asked him whether he would like to have some liquor. The complainant told him that he will not take liquor as there was Pooja in the house. The accused brought liquor and demanded glass and water. The complainant served him water and glass. 32.judg.cc.2-09&cra.379-09 7 The accused took the liquor. Thereafter the accused asked the complainant whether he wanted a cigarette as he was going to the shop. The witness agreed to have a cigarette . Thereafter the accused asked his daughter Saraswati and son Bharat whether they wanted to have biscuits and accordingly his both children accompanied him. After some time, Bharat returned back with biscuits. Witness inquired Bharat about Saraswati. But Bharat stated that Saraswati was with the accused. He waited for 10 minutes, but, Saraswati did not return. He asked his wife to search for Saraswati at the shop. He also went to the house of the accused. The accused was not in his shop nor at the house. After some time, wife went accused's house and met him. At that time, he himself had gone to police chowki. When the wife inquired with the accused about Saraswati, he replied that he did not know anything about her daughter and he also threatened his wife to kill as he showed knife to her and then ran away. Thereafter witness searched his daughter but was not able to find her. Same statement was given by his wife PW-2. Now, 32.judg.cc.2-09&cra.379-09 8 these statements create certain doubts. The incident, according to them happened on 4.1.2006 and PW-1 stated that he had gone to the police chowki on the same day, but, the report is registered by police only on 7.1.2006. There is no explanation either by these two witnesses or by the Investigating Officer as to for what purpose PW-1 had gone police station on 4.1.2006, and if he had made any report why it was not registered. There is no explanation as to why the report was not filed for three days after the incident, particularly when the accused had threatened to kill the mother i.e. PW-2 when she made inquiries about her child. Hence, it is hard to believe these two witnesses. 8. PW-3 is the shop keeper from whom allegedly the accused purchased biscuits for the deceased. He has been declared hostile, but, we do not find that he is in any way being hostile to the prosecution story. He stated in his statement that he was running grocery shop in the area for 10 years. He knew the accused. He also knew PW-1 and also knew the deceased child and her brother. He stated that on 4.1.2006 at about 32.judg.cc.2-09&cra.379-09 9 8:30 p.m. Saraswati came to his shop to purchase two packets of biscuits. Nobody accompanied her. She then went away from the shop. After some time, PW-2 came in search of Saraswati and he told her that Saraswati left the shop after purchasing biscuits. According to this witness deceased was not with accused. Therefore, the second circumstance that the accused was last seen with the deceased is also not proved. 9. PW-4 however supports the case of the prosecution and submitted that he was working in front of the shop of PW-3. He saw the accused, deceased and her brother Bharat at the shop of PW-3. Accused purchased two packets of biscuits and 2 cigarettes from that shop. Thereafter the accused told Bharat to go ahead to his house. Accused carried Saraswati towards the base of Achola dongar (hill). Vijay also accompanied accused at that time. 10.PW-5 is the child Bharat who allegedly accompanied the deceased. He also narrated the same story as narrated by PWs. 1 & 2. 11.Now the last circumstance relating to recovery of the body 32.judg.cc.2-09&cra.379-09 10 will be considered. In this connection, first we will refer to the evidence of the Investigating Officer (PW-8). He stated in his statement that on 7.1.2006 he was attached to Nalasopara police station. A case was registered under Section 363 of Indian Penal Code. On the same day, he arrested the accused. Surprisingly in his statement he stated that during the supplementary statement of the complainant, he stated to him that his neighbour Virendra Vasudeo Sada might have kidnapped his daughter Sarbati @ Saraswati. That supplementary statement has not seen light of the day. We have only seen the first FIR. In the first FIR itself the complainant had stated that the child was accompanied by the accused. That raises doubt whether this FIR is the supplementary statement to which the reference has been made by the Investigating Officer. If that is so, then the first First Information Report is missing. He further stated in his statement that on supplementary statement having made, he made an application before the J.M.F.C. Vasai for adding offences punishable under Sections 364, 365 r/w. Section 34 32.judg.cc.2-09&cra.379-09 11 of Indian Penal Code. Whereas we have observed that these offences were in FIR from inception. Therefore, a report was perhaps filed before Exh.6, which has not been brought to the notice of the Court. On 10.1.2006, according to this Investigating Officer, the dead body of Saraswati was found at Adarshnagar, Barkhalpada Nalasopara. The dead body was completely decomposed. Inquest panchanama was drawn. Inquest panchanama was marked as Exhibit-13. He also seized the clothes of the deceased and prepared seizure panchanama which was marked as Exhibit-19. After finding the dead body he made an application for adding offences under Sections 302, 201, 376 (2)(f)(g). He also seized certain articles from the place of occurrence. Dead body of the deceased, according to him, was recovered as the accused had made a statement while he was in police custody. A memorandum was shown to this witness who identified the signature on it. It was marked as Exhibit-37. This Exhibit-37 shows that the statement was made by the accused in presence of Shri Rajesh Lalji Kanojia and Shri Kuroshwar 32.judg.cc.2-09&cra.379-09 12 Anandlal Sharma. Allegedly the accused made the following statement : "I am ready to show the spot of the incident and dead body, you accompany us." 12.Both the witnesses shown in the panchanama were not produced in Court. And therefore even this panchanama was not proved. On the other hand, PW-6 was produced who stated in his statement that the police called him on 11.1.2006 for spot panchanama under a tree near one old building adjacent to Achola hill, Nalasopara. One dead body of a girl was lying on the ground which was decomposed. Thereafter he stated that certain other articles were found. According to the Investigating Officer a discovery was made on 10.1.2006 and body was also found on 10.1.2006. But there is no explanation why the body was still there on 11.1.2006. Why the body was kept for one day at the place even after it was found, has not at all been explained. Therefore, recovery of body at the disclosure of the accused is also not proved. 13.Neither the prosecution proved that the accused was last seen 32.judg.cc.2-09&cra.379-09 13 in the company of the accused nor the prosecution proved that the body of the deceased was recovered at the disclosure of the accused. Therefore, in our view there was no evidence to connect the accused to the offence for which he was charged. We have also found certain observations of the learned Sessions Judge which are clearly misplaced and are not expected by a senior Sessions Judge. In para-12 of her judgment, she stated that : "12. Defence Counsel Vaishali Patil argued that said statement is not admissible and said recovery is not proved by examining panch witnesses. It is true that panchas are not examined. It is worthy to note here that inquest panchas and panchas of memorandum statement and recovery panchas are same. The then defence counsel Shri Patel admitted inquest panchanama and hence said witnesses were not called and hence they could not be examined to prove said statement and recovery. However, there is no law which says that testimony of I.O. is totally inadmissible to prove such panchanamas. I found that the I.O. is quite reliable and trust worthy and he carried out investigation impartially. Hence, I believe his version on the point of recovery of dead body." Although the learned Sessions Judge was of the view that the panchanama was not proved and was not admissible, still she relied upon this panchanama for convicting the accused. 32.judg.cc.2-09&cra.379-09 14 14.Similarly the police have claimed that from the scene of the offence shoes was recovered which according to the prosecution belonged to the accused. The learned Judge took it upon herself to prove whether the shoes belonged to the accused or not. She asked the accused in the Court to put on the shoes and came to the conclusion that the shoes fitted the feet of the accused therefore the shoe must have been of his. We wonder if the defence counsel has suggested the Judge to put on the shoes to herself or to anybody else in the Court and had it fitted the feet of the Judge, what would have been the consequence. The Judge observed that ".... In order to know as to whether the said shoes were of the accused Virendra Sada, I called him in my chamber and the Court duty police constable Shri.Bhere and the peon Shri.Shelke. In their presence I asked the accused to wear said shoes and I find that those shoes were fit in his feet. Though accused Virendra Sada complaining that those were not of his and they are tight in his feet, I am of the firm opinion the those were quite fit in his feet, but he was falsely complaining that they were not fit. Thus the finding of the said articles at the said place confirmed the fact that it was the same place of offence which is disclosed by the accused." 15.Since the dead body was decomposed, medical evidence also 32.judg.cc.2-09&cra.379-09 15 could not confirm that the child had been raped before murder. PW-7 was of the view that "I noticed perineal tear" which may not conclusively mean that the girl had been raped. Since admittedly the girl had met a violent death and her body was in a pool for a number of days after death and in a decomposed state and maggots were found on her body everywhere. Therefore, the perineal tear could not be solely attributed to the act of rape. 16.For these reasons, we allow the Appeal of the accused. Refuse the confirmation to sentence awarded by the Sessions Judge. Acquit the accused of the charges and direct that he be released forthwith if not required in any other case. [BILAL NAZKI,J.] [A.R.JOSHI,J.]