1 CONF-1-2009 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.CONFIRMATION CASE NO. 1 OF 2009 (REFERENCE MADE BY ADDL. SESSIONS JUDGE, KOLHAPUR) IN SESSIONS CASE NO. 73 OF 2008 The State of Maharashtra ] through Karveer Police Station ]...Complainant Vs. Babu alias Ravindra Suresh Kamble ] Aged about 23 years, Occ: Labourer, ] R/o Nerli, Taluka Karveer, ] District Kolhapur ]..Accused --- Mrs. Mankunwar Deshmukh APP for the State Mr. Abhaykumar Apte Adv. (appointed) for Accused --- WITH CRIMINAL APPEAL NO. 78 OF 2010 Babu alias Ravindra Suresh Kamble ] Aged about 23 years, Occ: Labourer, ] R/o Nerli, Taluka Karveer, ] District Kolhapur ] At present in Kolhapur Central Jail ]..Appellant Vs. The State of Maharashtra, at the instance ] of Karveer Police Station, CR 222/2007 ]...Respondent 2 CONF-1-2009 .... Mr. Abhaykumar Apte Adv. (appointed) for Appellant-accused Mrs. Mankunwar Deshmukh APP for the Respondent-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE OF RESERVING THE JUDGMENT : AUGUST 13, 2010 DATE OF PRONOUNCING THE JUDGMENT : DECEMBER 10 , 2010 JUDGMENT: [PER SMT.V.K.TAHILRAMANI,J.]: 1 By judgment and order dated 5.3.2009 in Sessions Case No. 73 of 2008, the learned Additional Sessions Judge, Kolhapur convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to capital punishment of death. By the very same judgment and order the accused was also convicted under Sections 363, 376(2)(f) and 201 of IPC. For the offence under Section 363 of IPC the accused was sentenced to RI for three years and fine of Rs.1000/- in default RI for one month. For the offence under Section 376(2)(f) he was sentenced to suffer RI for ten years and to pay a fine of RS.1000/- in default RI for one month and for the offence punishable under Section 3 CONF-1-2009 201 of IPC, the accused was sentenced to RI for three months and to pay a fine of Rs.1000/- in default RI for one month. The learned Sessions Judge directed that all the substantive sentences shall run concurrently. As sentence of death was imposed on the accused, the learned Sessions Judge made a reference to this Court for confirmation of death sentence. The appellant-original accused being aggrieved by the very same judgment and order, preferred Criminal Appeal No.781 of 2010. As both the confirmation case and the appeal were directed against the very same judgment and order, hence, both these matters were heard together. 2 The prosecution case briefly stated is as under: PW 9 Ashok and PW 4 Sangita are the parents of victim girl Chakuli. They resided in village Nerli, District Kolhapur. They had three children i.e. daughter Aparna, son Ajit and daughter Chakuli aged 5 years. The mother of Ashok also resided in the same village but in a separate house. The grand mother of the accused and the mother of PW 9 Ashok were acquainted with each other, hence, the accused used to visit the house of Sangita and Ashok. On 24.10.2007 at about 7.30 p.m. the accused came to the 4 CONF-1-2009 house of Sangita to tell her that she should come for work on the next day. At that time, Chakuli and Ajit were playing outside the house. At about 8.15 p.m. Ajit came inside the house. Sangita enquired with Ajit about the whereabouts of Chakuli whereupon, he said that he did not know as he had gone to view TV programme. Hence, they made announcement on the loudspeaker in the village that Chakuli was missing. Thereafter, Ashok and Sangita searched for Chakuli in the village but they were not able to trace Chakuli. On the next day also they searched for Chakuli but she could not be found. Thereafter, Ashok lodged missing report in Karveer police station. Accordingly, entry no.6 of 2007 was made in the register maintained for missing persons. On 29.10.2007 at about 9.00 a.m. one PW 6 Ravindra Patil was ploughing the field of Anil Patil near the Nerli-Kagal road, where sugarcane crop was standing in some part of the field. At that time, he noticed that a dog had dragged some object upto the embankment of the field and dirty smell emanated from the object. Hence, he went to the spot and he noticed a naked dead body of a girl with bangles on the left hand. He also saw a frock, underwear, plastic bangles, underwear and banyan of a male, one empty liquor bottle and lid lying scattered in the 5 CONF-1-2009 nearby area. He recollected the announcement made on 24.10.2007 about Chakuli being missing, hence, he went to the house of Ashok. At that time, only Sangita was present in the house. Ravindra Patil disclosed the incident to her. Thereafter, all family members of Ashok and others went to the spot and they identified the dead body of Chakuli on the basis of bangles, frock etc. Thereafter police patil of Nerli village informed this incident to the police at about 11.15 a.m. A.D. Case No. 222 of 2007 under Section 174 of Cr.P.C. came to be registered at Karveer Police Station. PW 3 ASI Chigare along with constable proceeded to the spot. By that time, other police personnel also reached the spot. ASI Chigare prepared inquest panchnama and spot panchnama in the presence of panchas. He seized 11 articles found in the nearby area. He sought help of dog squad. The dog squad arrived at about 2.00 p.m. When the dog was given smell of banyan and knicker, the dog led the police to the house of Chakuli and then to the house of accused. On enquiry with Ashok father of Chakuli, ASI Chigare came to know that the accused had come to their house on 24.10.2007 and since then Chakuli was missing. Hence, ASI Chigare inferred that the accused might have raped Chakuli and committed her murder, hence, he lodged complaint on behalf of the State against the accused. Accordingly, CR No.253 of 2007 was registered for the 6 CONF-1-2009 offence under Sections 363, 376, 302 and 201 of IPC. The dead body of Chakuli was sent for postmortem. Dr. Reshma Patil who conducted post mortem noticed that there was tear of hymen with injury to perineum. In the opinion of P.W. 23 Doctor Reshma Patil the cause of death was due to throttling with multiple fractures of ribs. It transpired during the investigation that the accused had kidnapped the minor girl Chakuli, committed rape on her and then committed her murder. After completion of investigation, the charge sheet came to be filed against the accused. 3 Charge under Sections 302, 376(2)(f), 363 and 201 of IPC came to be framed against the accused. The accused pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the accused as stated in para 1 above. 4 We have heard the learned counsel Mr. Abhaykumar Apte for the accused and Mrs. Deshmukh, the learned APP for the State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence on record. 7 CONF-1-2009 After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order of conviction passed by the learned Sessions Judge does not call for any interference. 5 There is no eye witness in the present case and the case depends only upon circumstantial evidence. In order to prove its case, the prosecution has relied on the following incriminating circumstances, which according to the prosecution conclusively prove the guilt of the accused: (a) Chakuli was missing from about 8 p.m. of 24.10.2007 (PW 9); (b) Deceased was last seen in the company of the accused on 24.10.2007 between 8 p.m. to 8.30 p.m. ; (PWs 11, 12, 13 and 16). (c) Previous conduct of the accused and preparation on his part i.e. purchasing bottle of liquor and purchasing chocolate to give the same to Chakuli and thus lure her away; (PW 7, PW 14 and PW 15) (d) Subsequent conduct of the accused i.e. he was seen sweating and in a frightened condition by witnesses (PW 5 and 8). (e) Finding of wrapper of chocolate pursuant to memorandum statement given by the accused; (PW 10) (f) The evidence of PW 18 Dr. Patil who has stated that 8 CONF-1-2009 accused had a 4 to 7 days old scar on his private part; 6 As far as the first circumstance as stated above is concerned, it is not disputed by the defence that from 24.10.2007 Chakuli was missing. However, Mr. Apte submitted that the accused had nothing to do with the disappearance or murder of Chakuli. 7 On the aspect of last seen, the prosecution has examined four witnesses i.e. PW 11 Vandana, PW 12 Gangubai, PW 13 Dipali and PW 16 Suresh. They are all residents of Village Nerli. The house of PW 11 and 13 is situated near the house of Chakuli. PW 11 Vandana is the first witness on the aspect of last seen. She is the neighbour of Chakuli. Vandana has stated that she knew the accused as well as Chakuli. On 24.10.2007 at about 8 p.m. while she was sitting in the doorway of her house, in the light of electric bulb outside her house as well as in the moon light, she saw that her son and Chakuli were playing infront of her house. At that time, accused came from Bhairoba temple side and he called Chakuli towards him saying that he will give her sweetmeat. When Chakuli reached near the accused, accused gave her a chocolate. Thereafter, accused and Chakuli went towards Shirol Nala side. 9 CONF-1-2009 8 PW 12 Gangubai is the next witness on the aspect of last seen. She has stated that on 24.10.2007 at about 8 p.m. to 8.30 p.m. she was answering the call of nature. At that time, she saw one man coming towards that side with a girl. One motorcycle passed by that side and in that light, she saw that the man was the accused and the girl was Chakuli. This witness has stated that the accused was telling Chakuli to walk fast. 9 The next witness on the aspect of last seen is PW 13 Dipali. Her house was near the house of Chakuli. She has stated that on 24.10.2007 at about 8.15 p.m. when she was standing on the road infront of her house, the accused came towards her. Accused enquired with Dipali whether she would accompany him to his house. She did not give any reply. At that time, Chakuli was nearby. Dipali saw the accused proceeding ahead and Chakuli following him. Thereafter, she went to sleep. 10 PW 16 Suresh is a resident of village Nerli. He has stated that on 24.10.2007 at about 8.30 p.m. he was returning back to Nerli on his motor cycle. When he reached near the boundary of his village, he saw accused taking Chakuli with him towards Kagal road. He saw them 10 CONF-1-2009 in the light of his motor cycle. He also saw two ladies who were attending the call of nature by the side of the road. PW 12 Gangubai has stated that when she went to attend call of nature, in the light of a motorcycle which was passing by, she saw the accused and Chakuli coming towards their side. The evidence of PW 16 Suresh thus stands corroborated by the evidence of Gangubai who has stated that when she was answering call of nature, a motorcycle passed by and in the light of the motorcycle she saw the accused and Chakuli. PW 16 Suresh has also stated that when he reached boundary of the village, he saw the accused and Chakuli and at that time, two ladies were answering the call of nature by the side of the road. All these witnesses are residents of village Nerli and being residents of village Nerli, all these witnesses knew the accused as well as Chakuli. Nothing has been elicited in the cross-examination of any of these witnesses so as to disbelieve their testimony that on 24.10.2007 between 8.00 p.m. to 8.30 p.m. they saw the accused and Chakuli together. 11 Mr. Apte stated that as per the prosecution Chakuli was missing from the night of 24.10.2007. He drew our attention to the evidence of Ashok who is the father of Chakuli wherein he stated that an announcement was made that very night in the village from the speaker 11 CONF-1-2009 at Bhairavnath temple about Chakuli being missing. Mr. Apte submitted that in such case, all these four witnesses would have informed Ashok or Sangita that they had seen accused and Chakuli together. The very fact that they did not inform Ashok or Sangita that they had seen accused and Chakuli together on 24.10.2007 means that none of these witnesses had actually seen the accused and Chakuli together on 24.10.2007 and only in order to support the prosecution, they have been set up by the prosecution and their statements were recorded later on. He also pointed out that the statements of these witnesses were recorded belatedly, therefore, they cannot be relied upon. 12 As far as PW 11 Vandana is concerned, she has stated that she did not hear any announcement on the speaker about Chakuli being missing as she had gone to sleep by that time. She has stated that parents of Chakuli had not made any enqiury with her about Chakuli. On the next day, she had gone for Yatra and came back only after four days. Then she learnt that the accused had raped and committed murder of Chakuli. Obviously, as this witness was not available in the village, her statement could be recorded only when she came back to the village. As she had gone for yatra the very next day. She did not know Chakuli was missing till she came back and hence, 12 CONF-1-2009 there was no question of her telling anything to parents of Chakuli. 13 PW 12 Gangubai has also stated that she had not heard announcement on the speaker on the night of 24.10.2007. As far as Suresh PW 16 is concerned, he has stated that he had not heard announcement on the speaker in the night about Chakuli being missing as he was viewing TV programme. On the next day, he had gone to Pune. He came back to the village from Pune on 1.11.2007 only in the night, hence, he did not know Chakuli was missing. It is observed that these witnesses themselves have explained as to why their statements were recorded late by the police. Evidence of PW 13 Dipali does not show that she had heard any announcement. It is also to be noted that none of these witnesses or the Investigating Officer were asked any question categorically on the point of delay in recording their statements. On the point of delay in recording statements, we may make useful reference to a decision of the Supreme Court in State of Uttar Pradesh Vs. Satish, AIR 2005 S.C. 1000, wherein it is observed as under: “As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot 13 CONF-1-2009 gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible there is no reason to interfere with the conclusion”. We may also refer to the case of Raju Raghunath Vs. State of Maharashtra, reported in 2008 All MR (Cri.) 2160 wherein it is observed that “merely because witness had not come forward to give his statement on the very same day that would not be a sufficient ground to discredit his testimony.” Thus, as none of these witnesses has heard about the announcement therefore, there was no question of them informing Ashok or Sangita that they had seen the accused and Chakuli together on 24.10.2007. 14 In any event, accused and his family were well known to Chakuli and her family. This is clear from the evidence of PW 9 Ashok father of Chakuli. Ashok has stated that his mother and grand mother of accused were acquainted with each other and accused used to visit their 14 CONF-1-2009 house frequently. As the family of accused and Chakuli were well known to each other, hence, no one suspected that there was anything amiss when they saw the accused and Chakuli together. They would not find anything strange nor would they suspect anything when they saw the accused and Chakuli together. It was only if they had seen something which according to them, was unusual then they would have gone and informed the parents of Chakuli. For all these witnesses seeing Chakuli with the accused was not an unusual occurrence, hence, they did not find anything strange so as to inform the parents of Chakuli. 15 Mr. Apte contended that a conviction cannot be based on the point of “last seen” and circumstance of “last seen” cannot be said to be an incriminating circumstance. To support this contention, he has placed reliance on the decision in the case of Seth Pal Vs. State of Himachal Pradesh (2003) 12 S.C.C. 169. We have carefully perused the decision. The Supreme Court observed that the conviction of appellant (brother of deceased) was based on circumstances that (i) before recovery of dead body, deceased, appellant and G (brother in law of appellant) were seen together at a tea stall by PW 1 and (ii) appellant was thereafter not seen in the locality. In the said case, as both deceased and accused were closely related, the first circumstance of 15 CONF-1-2009 `last seen’ was , held not an incriminating one and second circumstance in the facts of the case did not amount to abscondence, hence, appellant was acquitted. It is observed that in the peculiar facts of that case, the observations were made that `last seen’ is not an incriminating circumstance. The Supreme Court in the said decision did not lay down by way of universal application that circumstance of last seen is not an incriminating circumstance. 16 On the aspect of last seen, Mr. Apte also placed reliance upon the decisions in the following cases: (1) Eradu and others Vs. State of Hyderabad; AIR 1956 SC 316. (2) Gambhir Vs. State of Maharashtra; (1982) 2 S.C.C. 351; (3) K. Sukumaran Vs. State of Kerala; (2000) 10 S.C.C. 365; (4) Dinesh Borthakur Vs. State of Assam; (2008) 5 S.C.C. 697; (5) State of Uttar Pradesh VS. Ram Balak and another; (2008) 15 S.C.C. 551; In the decision in Eradu (supra) it was observed that “where the accused enticed away the deceased on the evening of the day of murder and the deceased was found hanging in the backyard of his house, these circumstances by themselves, are not enough, without 16 CONF-1-2009 anything more, to connect the accused with the crime.” In the decision of Gambhir (supra), it was observed that “on scrutiny the only thing established is that the accused and other persons used to visit the house of Laxmi during the absence of her husband and that he was again seen in the company of Laxmi on February 26, in the night till before dinner time. This single circumstance by itself is too feeble to connect the accused with the murder of Laxmi and her children”. In both these decisions, it appears that the only circumstance is that of `last seen’ hence, these observations were made. However, in the present case, “last seen” is not the only circumstance against the accused hence, both these decisions would not be applicable. 17 In the decision of K. Sukumaran (supra), it was observed that though circumstance of last seen together was proved, but as a most vital circumstance that is the alleged clothes of the accused on which blood of the same group as of the deceased was found actually belonged to the accused was not established, on facts, it was held that the charge of murder against the accused-appellant could not be proved beyond reasonable doubt, hence, the accused was entitled to acquittal. 17 CONF-1-2009 From the above observations it becomes at once clear that the only circumstance against the accused therein was “last seen” and in the facts of the said case, it was not found to be sufficient. It is reiterated that in the present case, there are many other circumstances besides the circumstance of “last seen”. 18 Reliance was also placed by Mr. Apte on the observations in the decision in Dinesh Borthakur (supra). On going through the said decision, we found that the circumstance of last seen was not relied upon as in that case no proper evidence was brought on record and there was improper and ineffective investigation and prosecution hence, it was held, no suspicion can be raised that the appellant had committed the crime.” This case is entirely distinguishable on facts. As the facts in the case relied upon and the present case are entirely different, this decision would not be applicable to the present case. 19 In the decision in Ram Balak (supra), it was held that “merely because the accused were seen near the place of incident, that cannot be a ground to show their involvement. There was no evidence to show that accused were last seen in the company of the deceased.” In the present case, the evidence of PWs 11, 12, 13 and 16 clearly 18 CONF-1-2009 shows that the accused was `last seen’ in the company of the deceased. The accused has made no attempt to explain where the deceased went thereafter i.e. when and where he and the deceased parted company. Thus, in the facts of this case, the circumstance of `last seen’ is a strong circumstance against the accused. 20 On the aspect of last seen, the learned APP placed reliance on a decision in the case of Barku Bhaskar Vs State of Maharashtra reported in 2006(1) Bom.C.R. (Cri) 353. She has placed reliance on para 10 wherein it is observed as under: " Time gap between last seen and discovery of dead body is immaterial. By larger time gap between last seen and death also the evidence of witnesses need not be discarded in the light of the illustration quoted herein above and the evidence of last seen together can be worthless, only if, defence creates a probability of somebody having seen the victim alive, after the point of time about which the witnesses speak of last seen together. In the matter at hands, there is no such possibility created by the defence. In the circumstances, the evidence of Ranjana and Rajendra, at least, rolls the ball into the Court of the accused and it was necessary for him to explain as to when did he part the company of the victim. On reference to answers to question nos. 7, 8 and 13 during the statement under Section 313 of the Cr.P.C., the accused does not seem to have utilized the opportunity for offering any 19 CONF-1-2009 plausible explanation. We are, therefore, not inclined to accept the submission of the learned Advocate for the appellant that evidence of Ranjana and Rajendra, on the point of last seen together is worthless any utility.” 21 Learned APP also brought to our notice that in the present case, there is no suggestion to any witness that the victim was seen alive by anybody after having parted company with the accused. On the point of