1 Cri.Appeal No.263. of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.263 OF 2010 Shashikant s/o Dilip Badane, Age : 25 years, Occupation Prisoner in Central Jail, Aurangabad R/o Tal. Ambalner, Dist. Jalgaon, At present infront of Wokhard BIOTICH Company, MIDC, Waluj, Aurangabad ..APPELLANT VERSUS The State of Maharashtra, Through Police Station, Waluj, District Aurangabad ..RESPONDENT Mrs Bharti Gunjal, Advocate (appointed) for the appellant; Mrs S.D. Shelke, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 22nd June, 2011 ORAL JUDGMENT (PER P. V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 363, 376 (2) (f) and 302 of the Indian Penal Code and sentenced to R.I. for seven years and to pay fine of Rs.5,000/-, in default 2 Cri.Appeal No.263. of 2010 to undergo further R.I. for one year, R.I. for ten years and to pay fine of Rs.15,000/-, in default of which to undergo further R.I. for three years, and imprisonment for life and to pay fine of Rs.15,000/-, in default of which to undergo further R.I. for three years, with a direction that the substantive sentences shall run concurrently, by the Ad hoc Additional Sessions Judge, Aurangabad, by judgment dated 24.5.2010, in Sessions Case No.163 of 2008, by this appeal questions the correctness of his conviction and sentence. 2. This appeal was presented through jail and, therefore, we had appointed Advocate Mrs Bharati Gunjal to represent the appellant in this appeal. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W. 9 Dy.S.P. Dnyanoba Munde, who was posted at the M.I.D.C. Police Station, Waluj as a Police Inspector, received a telephone call from the Police Station on 8.3.2008, at about 7.30 a.m., informing him that a girl had been murdered and, therefore, he was requested to come to the Police Station immediately. P.W.9 P.I. Munde, as he then was, immediately rushed to the Police Station and noticed that Head Constable Razzak had registered an offence and, therefore, investigation came to be entrusted to P.W.9 P.I. Munde. He, therefore, proceeded to the scene 3 Cri.Appeal No.263. of 2010 of the offence and in the presence of two panchas drew the scene of the offence panchnama at Exh.11. The inquest panchnama came to be drawn at Exh.12 in the presence of panch witnesses. Sniffer Dog Squad and a Finger Print Expert were also called at the scene of the offence. From the scene of the offence the frock of the girl, underwear, empty fertilizer bag, pair of chappals and other articles had been seized. On interrogation of P.W.4 Shivnath, a sketch came to be drawn and accordingly police teams were deputed to search the accused. The name of the accused was disclosed as Shashikant Badane during the inquiry. The police party accordingly went to his house but he was not available. An identity card of Wokhard company had been seized. Teams of police personnel were deputed for searching the whereabouts of the accused and ultimately the accused was traced at the Central Bus Stand at Aurangabad and was accordingly apprehended and brought to the police station. The accused came to be arrested and was sent to the Ghati Hospital for his medical examination. The underwear of the accused came to be seized under seizure memo at Exh.37. During custodial interrogation, the accused expressed his willingness to point out the place where he had hidden the clothes and accordingly memorandum at Exh. 33 came to be drawn. The accused then led the police and the panch to the premises of the company where he had been employed and from beneath a tree produced the clothes which came to be seized under seizure memo at Exh.34. The clothes were soiled with mud stains. On 14.3.2008 since the complainant belonged to Scheduled Caste, 4 Cri.Appeal No.263. of 2010 provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act were applied. The seized articles were referred to the Chemical Analyser along with the requisition at Exh.40. Investigation thereafter was handed over to P.W.10 Deepaksingh Gaur, who was the Assistant Commissioner of Police. The school leaving certificate of the accused was also obtained at Exh.52. The school leaving certificate of the complainant is at Exh.51. A request was made to the Judicial Magistrate First Class, Gangapur for holding the test identification parade of the accused at Exh.23. Accordingly, a letter was issued to the Tahsildar for fixing the date for holding of the test identification parade. Accordingly, on 10.4.2008 the test identification parade had been held. Dead body of deceased Mayuri was referred for post mortem examination and post mortem examination came to be conducted by Dr. Zine, who was attached to the Government Medical College at Aurangabad. The post mortem report came to be admitted by the accused and accordingly came to be exhibited at Exh.14. As per the post mortem report, deceased Mayuri had sustained multiple abrasions and two crescentic nail marks over the neck. She had sustained multiple abrasions on the whole of back with size varying from 0.5 cm. x 0.5 cm. to 4 cm x 4 cm., irregular and reddish in colour. She had thus sustained about ten abrasions. On internal examination multiple contusions involving the entire scalp, varying from 1 cm x 1 cm to 4 cm x 4 cm., irregular and reddish in colour were noticed. The Medical Officer, therefore, opined that cause of death was smothering with forcible 5 Cri.Appeal No.263. of 2010 intercourse with genital and other external injuries (homicidal). The provisional post mortem report about cause of death is at Exh.13. Statements of witnesses came to be recorded under section 164 of the Code of Criminal Procedure and further to the completion of investigation a charge-sheet came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.3 framed charge against the appellant for offence punishable under section 363, 376, 302 of the Indian Penal Code and 3 (1) (x) and under section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The accused denied his guilt and claimed to be tried. Prosecution in support of its case has examined ten witnesses while the defence of the accused is of denial. 4. Prosecution has unfolded its case through the evidence of P.W.1 Deepak, a neighbour of P.W.6 Prakash, father of deceased Mayuri. He states that he knows the accused and also knows P.W.6 Prakash. He states that on 7.3.2008, at about 6.00 to 6.15 p.m. while he was going to the company he had noticed the appellant with Mayuri on his lap. He had also noticed that Mayuri was holding a chocolate in her hand. He then proceeded to the company and Mayuri had called him as "uncle". According to P.W.1 Deepak, Mayuri was then aged about 3 to 4 years. He returned back at about 8.00 p.m. and learnt that Mayuri was missing. He, therefore, went to the house of Dhanraj, maternal uncle of Mayuri 6 Cri.Appeal No.263. of 2010 and inquired from him. He had also asked Dhanraj, if any guests had come and Dhanraj had informed him that no guests had come. He, therefore, searched for Mayuri and informed Dhanraj that he had seen Mayuri with a person. On the next day he learnt that a dead body of a small girl was lying behind the construction site and, therefore, went there. The dead body of the child was identified as that of Mayuri. The dead body was nude and there was bleeding from her vagina. He states that he had identified the appellant as the person who was seen with Mayuri. The examination-in-chief of this witness was partly completed on 14.7.2009 and was again resumed on 22.7.2009. In cross-examination on behalf of the accused he has admitted that the person who had taken the girl was not known to him and he had never seen him before. He has admitted that he did not consider it necessary to check as to why the child had called him. He has admitted that he did not consider it necessary to inform the police about it. He has admitted that the person who was sitting with Mayuri was at a distance of about 1 ft. from him. He has admitted that he had not given description of the person to the police when his statement had been recorded. He has admitted that he could not state the clothes which Mayuri was wearing. The prosecution, however, did not declare this witness hostile after he had been cross- examined on behalf of the accused. 5. P.W.3 Shantilal Kanade, a neighbour of P.W.6 Prakash states that on 7.3.2008 at about 5.30 to 6.00 p.m. he was proceeding for answering 7 Cri.Appeal No.263. of 2010 the call of nature and at that time he had seen one person taking Mayuri with him. He thought that the person must be a relative of P.W.6 Prakash and, therefore, did not question him. The said person was in the age group of 20 to 25 years. When he returned home at about 7.00 to 7.30 p.m. he was informed that Mayuri was missing. He states that he and others searched for Mayuri, however, Mayuri was not found till 10.00 p.m. He states that he accordingly advised the filing of a report that Mayuri was missing. On the next day when in the morning he was proceeding to answer the call of nature, he was informed that the dead body of a girl was found behind the construction site. He had noticed the dead body of Mayuri and there were bleeding injuries and there was profuse bleeding from the private part. He states that on 10.4.2008 he had identified the appellant as the person who was seen taking Mayuri with him. He has admitted that the appellant/accused was unknown to him. He has admitted in cross-examination that he did not consider it necessary to inform Mayuri's parents about having seen a stranger taking Mayuri with him. He has admitted that he had not given the description of the person who was seen taking Mayuri. He has admitted that he had not informed P.W.6 Prakash Nikalje that on the earlier day he had seen a stranger taking Mayuri with him. He has, however, admitted that he had informed about this to one Shri Bhutkar. 6. P.W.4 Shivnath, who runs a grocery shop in Dattanagar area, states that on 7.3.2008 a stranger had come to his shop and had 8 Cri.Appeal No.263. of 2010 purchased chocolate and a Gutkha pouch from his shop. He states that the stranger gave chocolate to Mayuri and then held the finger of Mayuri and took her with him. At about 5.00 to 5.30 p.m. Mayuri's mother came to his shop inquiring whether Mayuri had come to his shop. He states that he informed mother of Mayuri about a stranger giving chocolate to Mayuri and taking her with him. He informed mother of Mayuri that he thought the stranger to be her relative. He states that Mayuri's grandfather Sahebrao had also inquired about the whereabouts of Mayuri and he had informed him also about the stranger. He states that on the next day grand-father of Mayuri informed him about finding the dead body of Mayuri behind the construction site. He states that he had accordingly gone at the site. Subsequently the police arrived and drew the panchnama and then had drawn the sketch on the basis of the description given by P.W.4 Shivnath. He states that on 10.4.2008 he had identified the appellant in the test identification parade. 7. In cross-examination an admission has been elicited that Mayuri was initially playing near his shop and at that time there were no customers in his shop. He has admitted that the stranger had purchased "smooth chocolate" from his shop. He has admitted that he had not given the description of the stranger to Mayuri's mother as well as to her grandfather. He has further admitted that it had not struck him while he was searching for Mayuri that the stranger may have taken away Mayuri. He has admitted that while they were searching for Mayuri there was no 9 Cri.Appeal No.263. of 2010 discussion that she might have been kidnapped by any stranger. He was confronted with portion marked "A" in his statement wherein it is stated that he and Sahebrao identified the dead body of Mayuri at the same time. According to us, the contradiction is not so significant as to affect the credibility of this witness. He has admitted that when the police arrived there he was present at the site. He has admitted that after the incident he had not disclosed the description of the stranger to any one. 8. Learned Counsel for the appellant has urged before us that no reliance can be placed on the testimony of P.W.1 Deepak, P.W.3 Shantilal and P.W.4 Shivnath in respect of these witnesses having seen deceased Mayuri in the company of the appellant/accused. It is urged before us that the appellant/accused was unknown to these witnesses and consequently the fleeting glimpse of the appellant/accused would not affirmatively prove the presence of the appellant at the scene of the offence. The learned Asstt. Public Prosecutor has supported the findings recorded by the Trial Court. 9. It is true that P.W.1 Deepak has admitted that the appellant/accused was unknown to him. Initially, in his examination-in- chief he had stated that the appellant/accused was not known to him. In any event, not much reliance can be placed on the evidence of P.W.1 Deepak for the reason that it was fairly dark when P.W.1 Deepak was proceeding to the company. However, P.W.3 Shantilal and P.W.4 10 Cri.Appeal No.263. of 2010 Shivnath have in clear terms referred to the presence of the accused. In fact, P.W.4 Shivnath gave description to the police, on the basis of which a sketch of the appellant/accused was drawn and which ultimately led to the identification of the appellant/accused. The powers of observations of individuals vary from each other. P.W.4 Shivnath had a close look at the appellant as he had served him the chocolate as well as Gutkha packet. It cannot be said that P.W.4 Shivnath had only a fleeting glimpse at the appellant/accused. Therefore, according to us, on the basis of the evidence of P.W.3 Shantilal and P.W.4 Shivnath, the prosecution has established and has proved the circumstance that Mayuri was last seen alive in the company of the appellant/accused. 10. Prosecution has examined P.W.6 Prakash, father of unfortunate Mayuri, who states that his daughter Mayuri, aged 2-1/2 years, was playing outside the house on 7.3.2008. Thereafter Mayuri was not seen. He states that they had searched for Mayuri but Mayuri was not found. He further states that on the next day at about 7.00 a.m. he was informed that dead body of Mayuri was lying behind the construction site and, therefore, he had gone to the scene of the offence and had seen his daughter Mayuri lying there nude with bleeding injuries. He states that he had gone to the Police Station and lodged his complaint at Exh.30. Nothing of substance has been elicited in his cross-examination. 11. Prosecution has also examined P.W.5 Ratnakar Joshi, who then 11 Cri.Appeal No.263. of 2010 was posted as the Naib Tahsildar of Gangapur Tahsil, states about the identification parade conducted on 10.4.2008. He states that the accused had been produced from jail and the dummies were kept in a separate room. The identifying witnesses were also made to sit in another room. He states that five persons in the age group of 25 to 26 years had been called as dummies. He states that panch witnesses for the identification parade were also available. The dummies and the accused were made to stand in a line in the meeting hall and the panch was then asked to call the first witness. Accordingly, P.W.4 Shivnath identified the appellant/accused in the identification parade. Similarly, the places of the dummies and the accused was changed and the appellant/accused came to be identified by P.W.1 Deepak. The place of the appellant/accused was changed and the appellant/accused came to be identified by P.W.3 Shantilal. Exh.19 is the panchnama while Exh.20 is the memorandum. From the cross-examination of this witness, it reveals that he had not observed the precautions which are required to be taken for conducting the test identification parade. It appears that no steps were taken to verify if the place where the accused was sitting was visible to the identifying witnesses. Similarly, whether the place where the dummies were sitting was visible to the identifying witnesses. He has admitted that in the memorandum at Exh.20 it is not mentioned that the identifying witnesses were asked to sit in a separate room. 12 Cri.Appeal No.263. of 2010 12. Learned Counsel for the appellant has urged before us that no reliance at all can be placed on the test identification parade. According to us, not much reliance can be placed on the evidence of identification of the accused in the test identification parade. In any event, the test identification parade is not a substantive piece of evidence and can only be used as a step in the investigation. As pointed out by us above, P.W. 4 Shivnath had an opportunity of seeing the accused at close quarters and observing his features. Apart from that, on the basis of the description given by P.W.4 Shivnath, the sketch of the appellant/accused came to be drawn, which led to the arrest of the accused. Therefore, according to us, strong reliance can be placed on the identification of P.W.3 Shantilal and P.W.4 Shivnath and the Trial Court, therefore, according to us, has not erred in holding that deceased Mayuri was last seen alive in the company of the appellant/accused. The mud stains which were found on the clothes of the accused tallied with the mud which came to be seized from the scene of the offence. This is evident from Exh.45 which is the report of the Chemical Analyser. 13. Prosecution has also examined P.W.2 Dr. Gadge. He had noticed the following external injuries, apart from the other injuries noticed in column no.17 of the post mortem report :- Labia Majora contused with evidence of blood stains and blood oozing out per vagina. On separation evidence of tear over both 13 Cri.Appeal No.263. of 2010 lateral walls of vagina of size 4 x 3 cm. each and 6 O' clock position, extending upto anal opening. All tears have margins irregular, contused and blood infiltrated. 14. The appellant/accused has not taken any specific defence except bald denial. As pointed out by us above, the prosecution has proved that the deceased Mayuri was last seen alive in the company of the appellant/accused. This was in the evening and the dead body of Mayuri was found on the next day. The mud stains on the clothes of the appellant/accused tallied with the mud which was found at the scene of the offence. All these circumstances, therefore, according to us unerringly point out that it was the appellant and the appellant/accused alone who had committed the crime. In such circumstances, therefore, we find that there is no merit in the present appeal and the present appeal, therefore, deserves to be dismissed. 15. Accordingly, Criminal Appeal No.263 of 2010 is dismissed confirming the conviction and sentence. Fees payable to the learned Counsel appointed for the appellant quantified at Rs.5,000/-. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria263.10