- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.672/2008 Kailash s/o Shanker Nawekar, age 26 yrs., occu.driver, r/o Shahanshah Nagar, Beed. Tq. & Dist.Beed. ...Appellant.. Versus The State of Maharashtra. ...Respondent... ..... Shri S.S. Panhale, Advocate for applicant. Shri N.R. Shaikh, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR , JJ. DATE: 26.08.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : - 2 - 1] The appellant, who stands convicted for offences punishable u/ss.302, 363, 364, 376 and 201 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/-, in default of which to undergo further rigorous imprisonment for three years; rigorous imprisonment for three years and to pay fine of Rs.2,000/-, in default of which to undergo further rigorous imprisonment for six months; rigorous imprisonment for five years and to pay fine of Rs.3,000/-, in default of which to undergo further rigorous imprisonment for one year; rigorous imprisonment for 10 years and to fine of Rs.5,000/-, in default of which to undergo further rigorous imprisonment for one year; and rigorous imprisonment for three years and to pay fine of Rs.2,000/-, in default of which to undergo further rigorous imprisonment for six months; by the Sessions Judge, Parbhani, by judgment dated 17.6.2008, in Sessions Trial No.4/2007, by this appeal questions the correctness of his conviction and sentence. 2] Facts in brief as are necessary for the decision of this appeal may briefly be stated thus: PW 4 Dattarao Dudhare, father of the unfortunate child Anjali, lodged a missing report at Exhibit 14, which was registered as Missing Report No.17/2006. He had produced a photograph of Anjali, which is at Exhibit 23. The report of PW 4 Dattarao Dudhare came to be recorded by PW 2 Qadeer Khan, Head Constable. The missing report came to be handed over to Police Head Constable Bakkal No. 275 for inquiry. Wireless message was forwarded to all the Police Stations in the District. Copy of the wireless message is at Exhibit 15. PW 1 Tukaram Shingane, - 3 - who was working as an agricultural labour in the land of one Salim Siraj Rangrej, noticed the dead body of a girl among the brinjal plants. He accordingly intimated the owner of the land and lodged a report with the Police at Exhibit 12. PW 8 Mohd.Salim Siraj Rangrej was informed on 15.7.2006 by his employee PW 1 Tukaram that the dead body of a girl was found in the field. He along with PW 1 Tukaram went to the Police Station and had accordingly informed the Police. PW 4 Dattarao, father of Anjali, received a message on telephone from his friend one Ghanshyam that dead body of Anjali was found at village Kaudgaon. He had accordingly gone to the field and noticed the dead body of Anjali. Her school bag was lying near the dead body. He accordingly submitted a report at Exhibit 24 regarding the homicidal death of Anjali. PW 30 P.I. Adate, who was attached to the Police Station, Parbhani, recorded the complaint of PW 1 Tukaram regarding finding the dead body of a girl in the field. On the basis of the said report, A.D.No. 27/2006 had been registered. PW 30 P.I. Adate along with the staff visited the field and noticed the dead body of a girl, aged about 8 to 9 years. Inquest panchanama of the dead body came to be drawn in the presence of panchas at Exhibit 18. The dead body was referred for post mortem examination. PW 33 API Jadhav, who was attached to Police Station, Kotwali, Parbhani, recorded the report of PW 4 Dattarao at Exhibit 24 and registered an offence vide Crime No.82/2006. The scene of the offence – panchanama came to be recorded at Exhibit 46 and the articles viz. one note book, school bag and two other school books came to be seized. About 21 articles, which were lying helter-skelter, came to be seized under the said panchanama. Further investigation came to be handed over to PW 35 PI - 4 - Nimmanwad. He accordingly visited the scene of the offence on 16.7.2006 and recorded statements of witnesses. On minute examination of the seized note books, he noticed certain writing about killing of Heena at Beed, murder of one girl at Ahmedpur and murder of Uma Vikas Kulkarni at Udgir. He accordingly deputed PSI Lokhande to verify if the aforesaid crimes had been committed. Accordingly, PW 31 PSI Lokhande proceeded to Beed and received information about Crime No.110/2006, which was registered u/s 363, 376, 506 of the Indian Penal Code and also about Crime No.304/2005, which was registered u/s 376, 302 and 201 of the Indian Penal Code. On further inquiry, it was disclosed that the appellant – accused was alleged to be involved in the said offence. He obtained copy of the photograph of the appellant from the LCB office at Beed and collected the copies of the first information reports in the said offences, which are at Exhibit 93 to 95. PW 35 PI Nimmanwad thereafter recorded the statements of witnesses, who had seen deceased Anjali prior to her disappearance. Sketch of the appellant was shown to them, which was identified by them. The sketch had been drawn on the basis of the description given by the witnesses. Accordingly, the appellant came to be apprehended at Parali on 2.8.2006 on the basis of the posters, which were published and custody of the appellant-accused was secured in this crime. On 18.8.2006, the appellant - accused came to be arrested. During custodial interrogation, it transpired that the appellant had sold one electric cutter machine and the said machine came to be seized in the presence of panchas. Another cutter machine also came to be seized in the presence of panchas at Jalna on the basis of the information by the appellant. Natural handwriting of the appellant - 5 - came to be obtained at B-1. The natural handwriting was forwarded by PI Shevgan, LCB, Beed, along with the report at Exhibit 97. Specimen handwriting of the accused came to be obtained in the presence of panchas at Exhibits 50 to 55. The panchanama of obtaining the specimen writing of the accused is at Exhibit 89. On 2.9.2006, the natural handwriting, the specimen handwriting and the disputed writing in the note book, were referred to the handwriting expert at Aurangabad along with the memo at Exhibit 114. The clothes on the person of the accused came to be seized vide seizure memo at Exhibit 70 in the presence of panchas. On 24.7.2007, viscera, clothes of deceased, swab and the articles seized at the time of the scene of offence – panchanama, were forwarded to the Chemical Analyser along with the requisition at Exhibits 42 and 44. On 13.11.2007, the report of the handwriting expert was received and accordingly, the Tahsildar, Parbhani, was requested to arrange for identification parade. The identification parade came to be conducted on 31.8.2006 by PW 7 Jairam Pawar. Exhibit 36 is a memorandum of the identification parade and Exhibit 35 is the panchanama of the test identification parade. The Chemical Analyser’s report was received on 28.8.2006 at Exhibit 117. The charge-sheets of the other offences alleged to have been committed by the appellant-accused came to be obtained and are at Exhibits 118 and 119. Further to the completion of investigation, a charge-sheet against the appellant-accused came to be filed. 3] Post mortem on the dead body of deceased Anjali came to be performed by PW 5 Dr.Hamid-Ul-Karim. PW 5 Dr.Karim noticed that the dead body was - 6 - decomposed and rigor mortis was present. Maggots were found in the mouth, nostrils and perineum. On account of decomposition, there were no visible signs of injury to the external genital. Hymen was found torn admitting two fingers easily. Vaginal swab was taken for being referred to the Chemical Analyser. Anal opening was also dilated admitting two fingers easily. Anal swab was also taken for being referred to the Chemical Analyser. He noticed a broad ligature mark around the neck – 3 cms. wide and complete around the neck. He noticed the said injury to be ante mortem. On internal examination, he found both lungs congested and left heart was found full of blood clots. All other organs like abdominal organs etc. were congested. He, therefore, opined that cause of death was cardio respiratory arrest due to asphyxia due to strangulation. The post mortem report is at Exhibit 26. At Exhibit 27, an opinion expressed by him on the basis of queries made by the Police, he opined that cause of death was strangulation and the victim was raped. Rape had been committed before the death of the victim. PW 6 Dr.Rajeshwar Mokashe had examined the appellant – accused on the basis of the requisition at Exhibit 29. He obtained the blood sample and found that the blood group of the appellant was “O +ve” and he, therefore, opined, on examination of the accused, that he was able to perform sexual intercourse. The report of examination is at Exhibit 38. 4] The case against the appellant rests on circumstantial evidence. PW 4 Dattarao, father of deceased Anjali, states that he runs a hotel near the Bus Stand, Parbhani. Anjali, his daughter, was aged 6 years and 9 months at the time of the - 7 - incident. Deceased Anjali was studying in Gandhi Vidyalaya, Parbhani, in the 2nd Standard. He further states that Anjali was attending the school and after attending the school, Anjali was returning to his hotel. Thereafter, she used to go to his house at Shriram Nagar, Parbhani. He states that on 13.7.2006, Anjali had gone to attend her school at 11-00 a.m., wearing her school uniform, which consisted of white top and green skirt. He also states that Anjali was carrying her school bag with her, a small umbrella of green and yellow colour. Anjali, however, did not return back from her school and her classmate Vaishnavi, who was residing in the neighbourhood, on inquiry by the wife of PW 4 Dattarao, informed mother of Anjali that Anjali may return home. PW 4 Dattarao had gone to the school in order to search for Anjali, but Anjali was not found in the school or on the road. PW 4 Dattarao searched for Anjali at the house of his relatives, but still there was no trace of Anjali. Since whereabouts of Anjali were not known, he submitted a missing report at Police Station, Kotwali, and had also tendered photographs of Anjali along with his report. On 15.8.2006, he had received a message from his friend Ghanshyam that dead body of Anjali was found in the agricultural field at village Kaudgaon. He accordingly had gone to the said field where he noticed the dead body of Anjali with her school bag lying near her. He accordingly submitted his report at Exhibit 24. In cross examination, he states that he has been in the hotel business from his childhood. He has admitted that the locality where the hotel is situated, is a crowded locality. He has stated that the dead body of Anjali was found by the side of the boundary mark among bushes in the agricultural field. He has denied the suggestion that on account of decomposition of the body, he - 8 - could not identify the dead body. 5] PW 1 Tukaram Shingane and PW 8 Mohd.Salim state about noticing the dead body of deceased Anjali lying in the field of PW 8 Mohd.Salim and informing the Police accordingly. PW 9 Shivaji Shinde, servant of PW 4 Dattarao, states that on 13.7.2006, Anjali had gone to attend her school as usual. PW 4 Dattarao came to his house in the evening and enquired whether Anjali had come to his house and on his informing him that Anjali had not come to his house, Dattarao went back. PW 9 Shivaji also searched for Anjali. He identified a note book as the one belonging to Anjali, which had been purchased by him for Anjali just two days before disappearance of Anjali. He has identified the said note book has Article 5. In cross examination, he has admitted that he can not recall the name of the Stationery Store from where he had purchased the note book. The said note book does not bear the name of Anjali nor is there any specific mark on the basis of which this witness could have identified the said note book. According to us, therefore, the evidence of PW 9 Shivaji in respect of identification of the said note book is not reliable. 6] PW 10 Manik Lohat, Head Master of the school, states that Anjali was a student studying in 2nd Standard and states that he had seen Anjali in the school on 13.7.2006. After the school was over, Anjali left for her home. Though he has been cross-examined, nothing of importance has been elicited in his cross examination to doubt his statement that Anjali had attended the school on - 9 - 13.7.2006. 7] PW 25 Varsha, a child witness and friend of Anjali, states that she was studying in Gandhi School. She states that she was knowing Anjali as Anjali was also studying in the said school. On the day of the incident, she had gone to her school and she and Anjali had taken their lunch at 3-00 p.m. The school was over by 5-30 p.m., and she and Anjali were returning home. When they had reached up to Aboli Hospital, they noticed a person standing near Aboli Hospital and the said person enquired from Anjali as to what her name was. Anjali informed him her name and the person said that he was residing near her house. Varsha told Anjali to come to the house of her paternal aunt Vandana and that Anjali should not go along with that person. Anjali, however, declined and Varsha, therefore, asked Anjali to come to her house. Anjali also declined. The person, who had accosted name, offered Anjali 20 rupees note for purchasing chocolates. Anjali told that person that she did not like chocolates, but accepted the said note. Anjali thereafter went ahead and the said person followed her. Varsha described that person as a person of fair complexion wearing black jeans pant and shirt having checks. She identified the appellant as the same person. Varsha states that she returned home and thereafter had attended the tuition till 7-00 p.m. and on the next day, father of Anjali had come to her house and had enquired about Anjali. Varsha states that she told father of Anjali that Anjali had gone along with a person. Varsha further states that she had identified the appellant as the same person in the test identification parade. In cross examination, she has admitted that the - 10 - house of her grand-mother and house of Anjali are adjacent. She states that her father is a milkman supplying milk to the hotel of father of Anjali. In cross examination, she has admitted that two days prior to her evidence, father of Anjali had come to her and told her about the evidence to be given in the Court. Varsha states that she told the facts before the Court as were told to her by father of Anjali. Omission has been proved that Varsha had not stated in her previous statement that the accused had asked Anjali her name and that the accused had told Anjali that he was her neighbour. 8] Though this witness is a child witness and has been cross-examined at length on behalf of the appellant – accused, we find that this witness is a reliable witness. Nothing has been elicited in the cross-examination, which would discredit the version of this witness. The immediate disclosure made by this witness on the next day to the father of Anjali that Anjali had accompanied an unknown person, lends support to her evidence in the Court about the appellant enticing Anjali along with him by offering her a 20 rupees note. Though this witness has stated that prior to her evidence, father of Anjali had informed her about what was to be stated by her, yet no significant omissions or contradictions have been elicited in her cross-examination to come to the conclusion that this witness is a tutored witness. This witness is of sufficient maturity and understanding and had given the description of the appellant-accused to the Police on the basis of which the sketch of the appellant-accused came to be drawn. The appellant-accused had accosted deceased Anjali and this witness in the evening in the month of July and since - 11 - there was adequate natural illumination, we see no reason to doubt the identification of the appellant by this witness. The identification by this witness in the Court is corroborated by the identification of the accused in the test identification parade. We, therefore, find that the trial Court has rightly placed reliance on this witness. 9] Prosecution has examined PW 27 Sharda Chandak. Sharda states that on the day of the incident, she had gone to Gandhi School in order to escort her daughter home. She states that when she was returning with her daughter, she had noticed one person talking with Anjali and that time, PW 25 Varsha was present near Anjali. She had noticed an unknown person talking to Anjali near Aboli Hospital. The said person was aged between 30 to 40 years and was wearing black colored jeans and a brown shirt having design of checks. She further states that the person had asked Anjali her name. Since son of Sharda was crying, she did not pay much attention to the said unknown person. Sharda has identified the appellant-accused as the same unknown person. She further states that she had identified the appellant in the test identification parade. In cross examination, she has admitted that she could not state the exact place where she had seen the unknown person talking with Anjali. She has further admitted in cross examination that at the time of test identification parade, no police personnel were present. She further states that when she had gone for identification parade, she had seen the persons in the parade present and standing in the hall. She states that apart from those persons, she herself and - 12 - Tahsildar were present in the hall. Omission has been proved that she had not stated in her police statement that the appellant-accused had asked Anjali her name. She has also admitted that father of Anjali had come to her house two days prior to her deposition requesting her to depose before the Court. 10] Though this witness had seen the appellant-accused talking to deceased Anjali for a very brief period, yet this witness had immediately given the description of the appellant-accused to the Police. On the basis of the description given by this witness, a sketch of the appellant-accused was drawn, which ultimately led to arrest of the accused. The identification of the appellant-accused in the Court has been amply corroborated by the identification of the accused in the test identification parade. Nothing has been elicited in the cross examination to doubt that this witness had seen the appellant-accused talking to deceased Anjali. Though father of Anjali had requested her to depose, there is nothing to indicate that this witness is a tutored witness on whom no reliance could be placed. We, therefore, find that implicit reliance can be placed on the testimony of this witness. 11] Prosecution has examined PW 7 Jairam Pawar, Tahsildar, who had conducted the test identification parade. PW 7 Jairam Pawar states about receiving a request letter from Police Station, Kotwali, for holding the test identification parade. He states about arranging the dummies in the identification parade and the presence of the appellant-accused in the identification parade. He also states about the precautions taken by him to ensure that the identifying - 13 - witnesses had no occasion either to see the dummies or the appellant-accused prior to the test identification parade. He also states about offering the accused a choice of standing wherever he wanted in the parade and of changing his clothes. He states about the identifying witnesses - Sharda and Varsha identifying the appellant-accused. Though in the cross-examination, an attempt was sought to be made that precautions had not been observed by this witness while conducting the test identification parade, this witness has emerged unskilled after a lengthy cross examination and, therefore, according to us, the identification parade has been conducted in accordance with the rules and no defect or shortcoming can be found in the conduct of the test identification parade. This witness has proved the memorandum of the test identification parade at Exhibit 36 and the panchanama at Exhibit 35. 12] PW 3 Sanjay Kathar, a handwriting expert attached to the office of CID at Aurangabad, states about receiving the letter at Exhibit 20 and the documents along with the letter. He marked the questioned documents as A-1 to A-5 and the specimen handwriting received by him came to be marked as C-1 to C-23. The natural writing came to be marked as B-1 and B-2. He states that he examined all the documents and came to the conclusion that the questioned writing A-1 to A-6 was written by the person, who had written C-1 to C-23 and B-1 and B-2. He has given his reasons as to why he has come to that conclusion and the statement of reasons is at Exhibit 78. Nothing has been elicited in the cross examination to doubt the credibility of the opinion expressed by this witness. - 14 - 13] Thus, on the basis of the evidence discussed above, the fact that the appellant-accused had lured deceased Anjali to a secluded spot in the agricultural field and had committed heinous offence, stands proved. A note book was found at the scene of the offence in which there was certain reference to the other crimes. The said handwriting in the note book has been identified as that of the appellant-accused. The aforesaid fact, therefore, further corroborates the presence of the appellant-accused at the scene of the offence. The learned counsel for the appellant has sought to urge before us that the evidence in respect of identification of the appellant is extremely weak and fragile and no reliance could be placed on the said evidence. We have already given reasons as to why we find that the evidence of the witnesses viz. PW 25 Varsha and PW 27 Sharda is found by us to be reliable and inspires the confidence of the Court for accepting the aforesaid evidence. According to us, therefore, there is overwhelming evidence, which connects the appellant with the commission of the offence and the offences alleged against the appellant are proved beyond reasonable doubt. The appeal, being sans merit, deserves to be dismissed. 14] Before parting with the judgment, we wish to place on record our appreciation for the assistance rendered to us by Shri S.S. Panhale, learned counsel appointed on behalf of the appellant and Shri N.R. Shaikh, learned APP on behalf of the respondent – State. We quantify the fees payable to the learned counsel appointed on behalf of the appellant – accused at Rs.5,000/- (rupees five - 15 - thousand only). The appeal, which is sans merit, is, therefore, dismissed confirming the conviction and sentence against the appellant. (A.V. Potdar , J.) (P.V. Hardas, J.) ndk/cr26810