1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CONFIRMATION CASE NO.2 OF 2009 The State of Maharashtra ..APPELLANT VERSUS Sunil s/o Damodhar Gaikwad ..RESPONDENT Mr K.B. Chaudhari, Addl. Public Prosecutor for the appellant; Mr N.B. Suryawanshi, Advocate (appointed) for the appellant WITH CRIMINAL APPEAL NO.280 OF 2009 Sunil Damodar Gaikwad, Age : 35 years, Occu.Tailor, R/o Dabhade Lane, Georai Tq. Georai, Dist. Beed ..APPELLANT VERSUS The State of Maharashtra Through Police Station Officer, Police Station, Georai, Dist. Beed ..RESPONDENT Mr N.B. Suryawanshi, Advocate (appointed) for the appellant; Mr K.B. Chaudhari, Addl. Public Prosecutor for the respondent. 2 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. (Date of reserving the judgment : 13.9.2010 Date of pronouncing the judgment : 23.9.2010 ) JUDDGMENT (PER P.V. HARDAS, J.) The accused, who stands convicted for an offence punishable under section 302 and 307 of the Indian Penal Code and sentenced to death and imprisonment for life, by the Sessions Judge, Beed, by judgment dated 7th May, 2009, in Sessions Case No.118 of 2008, has filed an appeal challenging his conviction and sentence. The Sessions Judge, under section 366 of the Code of Criminal Procedure has submitted a reference to this Court for confirmation of the death sentence. The confirmation case and the appeal filed by the accused are, therefore, being decided by this common judgment. 2. Such of the facts as are necessary for the decision of confirmation case and appeal may briefly be stated thus :- P.W.9 P.I. Gopinath Sarode was attached to the Georai police station. On 8th July, 2008 he received a phone call from P.W.7 P.S.I. Raju 3 Kharade. It appears that the appellant/accused went to the police station, Georai on 8th July, 2008, at 5.30 a.m. and confessed to P.W.7 P.S.I. Kharade of having committed the murder of his wife, two sons and having injured his daughter Gayatri. It appears that P.W.7 P.S.I. Kharade recorded the statement of the accused at Exh.29 and on the basis of the said statement, which was treated as the first information report, an offence punishable under section 302 of the Indian Penal Code came to be registered vide Crime No.172/2008. Investigation of the said crime was handed over to P.W.9 P.I. Sarode. P.W.9 P.I. Sarode accordingly reached the police station at 6.05 a.m. and observed that the accused had been taken in the custody and was kept in the police station lock-up. P.W.9 P.I. Sarode thereafter went to the scene of the offence and drew the inquest panchnamas of the dead bodies and referred the dead bodies for post mortem examination to the Primary Health Centre at Georai. P.W.9 P.I. Sarode then prepared the scene of the offence panchnama in the presence of panchas at Exh.18. From the scene of the offence sample of the blood stains were drawn and he seized the quilt which were found stained with blood. He also seized a white pillow cover which was found to be stained with blood. During custodial interrogation, the accused expressed his willingness to point out the place where the weapon, namely scissors were concealed. Accordingly, a memorandum came to be drawn in the presence of P.W.6 Subhash at Exh.26. The accused then led the police and the panchas to his house and produced a pair of scissors, which were kept inside the rolled 4 mattress. The scissors were found wrapped in a piece of cloth which came to be seized under the panchnama at Exh.27. The blades of the scissors are Article no.6. A photographer was deputed to take the photographs of the scene of the offence. Statements of witnesses came to be recorded and the accused was sent to the Medical Officer for drawing his blood sample. On account of transfer of P.W.9 Sarode, the investigation was then entrusted to P.I. Manikrao Varale. He recorded the further statements of witnesses and upon completion of the investigation filed a charge-sheet against the accused. 3. Post mortem on the dead bodies of the wife and two sons of the accused came to be conducted by P.W.3 Dr. Kranti Raut. P.W.3 Dr. Kranti Raut noticed the following external injuries on the dead body of Sangita, wife of the accused :- 1. Stab wound right chest, 2 stabs, (a) upper side of nipple, 1 x 0.25 x 2 cm.; (b) medial to nipple, 1 x 0.25 x 4 cms. at the level of 4th intercostal space , injury to intercostal muscle, 2. Stab wounds, (a) Right side of xiphisternum, 6th intercostal space, 2 x 1 x 2 cm. (b) Right side of xiphisternum just below , 2 x 1 x 8 cm. deep, evidence of haemothorax , evidence of injury to lung lower lobe and evidence of fracture 7th, 8th rib, 5 3. Six stab injuries over left side of chest just lateral : (a) Upper side of of sternum, 1 x 1 x 1 cm. at the level of 2nd intercostal space (b) Just below (a) 1 x 0.5 x 1 cm. at the level of 2nd intercostal space; (c) below (b) at the level of 3rd intercostal space, 0.5 x 0.5 x 0.5 cm. (d) below (c), 1 x 0.5 x 1 cm. at the level of 3rd intercostal space; (e) below (d), at the level of 5th intercostal space, 0.5 x 0.25 x 0.25 cm. (f) below (e) at the level of 6th intercostal, 0.5 x 0.25 x 0.25 cm. 4) Stab injury, left side of chest, above left nipple, 2 x 1 x 8 to 9 cm.; evidence of injury to 4th intercostal space, evidence of injury to upper lobe of lung, evidence of injury to major arteries; 5) Stab injury over right wrist, dorsal, 2 x 1 x 3 cm. 6) Incised wound left hand, 1 x 1 x 1 cm. 7) Incised injury, left cheek, 3 x 0.25 cm. x 0.25 cm. He, therefore, opined that death of deceased Sangita was on account of haemorrhagic shock with heamothorax and haemo peritoneum secondary to multiple stab injuries and injury to vital organs (lungs and major arteries). The post mortem report of Sangita is at Exh.14. Post mortem on the dead body of Akash, son of the accused also came to be 6 conducted by P.W.3 Dr. Raut, who noticed the following external injuries :- 1) Incised wound, right shoulder extending from medial to lateral side, 6 x 3 x 2 cm. 2) Stab wound medially, 2 x 1 x bone deep; 3) Stab (3) in no. on left side of sternum : (a) upper oblique, 2 x 1 x 6 cm. end intercostal space; (b) Middle medial vertical, 2 x 1 x 2 cm.; (c) Just below (b) laterally, 2 x 1 cm. 4) Stab wound Xiphisternum region extending laterally 4 x 2 x 7 to 8 cm., evidence of fracture 9th, 10th rib, evidence of ruptured large vessels and evidence of ruptured left ventricle. She, therefore, opined that death was due to haemorrhagic shock with haemothorax and haemoperitoneum secondary to multiple stab injuries with injury to vital organs ( i.e. heart, lung, etc.) The post mortem of Akash is at Exh.15. Post mortem on the dead body of Onkar also came to be conducted by P.W.3 Dr.Kranti Raut, who noticed the following external injuries :- 1) Incised wound over chin, 3 x 1 x 1 cm. 7 2) Incised wound on left hand, 1 x 1/2 cm. 3) Stab wound on chest : total wound 7 in numbers : Right chest : 3 stab wounds; Left chest : 4 stab wounds; Right Side : (1) Upper chest stab, 2 x 1 x 1 cm. (2) Middle chest stab, 1 cm x 1 cm (3) Lower chest stab. 2 x 1 x 78 cms., evidence of fracture to rib with lung injury; Left Side :- (1) Below suprasternal notch, 2 x 1/2 cm. (2) Supraclavicle, 1 x 1/2 cm. (3) Upper chest left sternum, 3 x 2 x 78 cm. Fracture of 3rd, 4th rib with lung injury (4) Lower chest left lat Xiphisternum, 3 x 2 x 78 cms. Lung injury with heart injury. She opined that death was due to cardio respiratory arrest due to multiple stab wound to chest, causing multi - organ injury with haemorrhagic shock. The post mortem report of Onkar is at Exh.16. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.3 framed charge against the appellant/accused for offence 8 punishable under section 302 and 307 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. Prosecution in support of its case examined 11 witnesses. The defence of the appellant/accused is of denial. The Trial Court upon consideration of the evidence against the accused sentenced him to death for an offence punishable under section 302 of the Indian Penal Code and imprisonment for life for offence punishable under section 307 of the Indian Penal Code. 5. The death sentence came to be referred to this Court by the Trial Court for confirmation of the same. The appellant/accused also filed an appeal. At the time of hearing of the appeal, this Court found that the accused was represented by an Advocate from the Legal Aid Panel, who did not have the requisite proficiency in conducting trials of this magnitude. This Court, therefore, by its judgment rendered on 1.10.2009 remitted the matter back to the Trial Court directing the Trial Court to appoint an Advocate having adequate experience of conducting Sessions Trial of offence punishable under section 302 of the Indian Penal Code. This Court further directed the Trial Court to re-summon P.W.3 Dr. Kranti Raut, P.W.6 Raju Subhash Sutar and summon Sk. Raju Sk. Majid, Shivaji Narayan Chavare and Gautam Baburao Potbhare, who had been cited as witnesses in the charge-sheet. The witnesses who were directed to be summoned and who had been examined, were directed to be summoned only for further cross-examination while the 9 other three witnesses who had not been examined during the trial were directed to be examined. This Court also permitted the Trial Court to resummon the Investigating Officer and thereafter to frame additional questions under section 313 of the Code of Criminal Procedure and examine the accused under section 313 of the said Code. This Court also directed the Trial Court to complete this exercise within three months and to remit the record back to this Court for the decision of the confirmation case as well as the appeal. The appellant/accused , being aggrieved by the order of this Court, it appears, preferred Special Leave Petition to the Supreme Court , which came to be dismissed by the Supreme Court. We have received the record after remand and accordingly additional paper-book has also been prepared. Advocate Shri Nitin Suryawanshi has been appointed as a Counsel to represent the appellant in the confirmation case as well as in the appeal. 6. In order to deal effectively with the contentions raised before us by the learned Counsel for the parties and also looking to the magnitude of the crime, it would be appropriate to refer to the evidence of the prosecution witnesses. 7. Prosecution has examined P.W.1 Gayatri, daughter of the accused. P.W.1 Gayatri is an injured witness and had sustained about 15 injuries, which are detailed below :- 10 1) Incised wound at right infraclavicular region, 1 x .5 x 1 cm. 2) Incised wound infraclavicular region, right side laterally, 1 x .5 x .5 cm. 3) Incised wound supra sternal nose, .25 x .25 x .25 cm. 4) Stab wound, lipoid process, 5 x 2 x 3 cm. 5) Incised wounds, four in number at mid sternal region above, downwards (a), .5 x .25 x 25 cm. 6) Incised wound right elbow joint, 1 x .25 x bone deep 7) Incised wound right forearm, lower 1/3rd, four in number from above downwards (a) 1 x .25 x bone deep, (b) 1.25 x bone deep, (c) 1 x .25 x .25 cm., (d) 1 x .25 x .25 cm. 8) Incised wound right wrist joint two in number (a) 1 x .25 x .25 cm. (b) 1 x .25 x .25 cm. 9) Incised wound left forearm, middle 1/3rd, 2 in number (a) 1 x .5 x .5 cm. (b) 1 x .5 x .5 cm. 10) Incised wound left forearm lower 1/3rd, 1 x .5 cm. x bone deep, 11) Incised wound left wrist joint, lateral side 2 x .25 x .25 cm. 12) Incised wound at the level of 2nd and 3rd metacarpal; 3 x .5 x .25 cm. 13) Incised wound left 2nd finger, .25 x .25 x .25 cm. 14) Incised wound over chin, 1 x .25 cm. x 25 cm. 15) Incised wound left thigh lower 1/3rd, 3 x .5 x .5 cm. The medical certificate of Gayatri is at Exh.17. 11 7. P.W.1 Gayatri states that she had two brothers Onkar and Akash, who were younger to her. She states that the name of her mother was Sangita. She also states that she is fondly referred to as "Pooja". Gayatri further states that she along with her parents and two brothers was staying at the Dabhade Galli, in Georai, in a rented premises comprising of two rooms. The house belonged to her maternal aunt Mangal Vishnu Sonawane. She further states that about 7 to 8 months ago her father assaulted her mother, two brothers and also assaulted her by scissors. She states that her two brothers and mother died on the spot. She states that she was assaulted on her chest, abdomen and both hands and while her father (accused) was assaulting her, she asked her father as to why he was assaulting them, although they had done nothing. The accused thereupon replied that "all of us need to go and he would follow us". She states that her father thereafter gave her water to drink and then took her on his laps and pressed her mouth by pillow. He thereafter went to the police station and while going to the police station, the accused bolted the door from outside. P.W.4 Sakharbai, who was staying in the same house came for help responding to the cries for help of P.W.1 Gayatri. Gayatri states that she told Sakharbai to save them and that they were bleeding. P.W.4 Sakharbai then opened the door and thereafter her uncle arrived there and shifted them to the Government Hospital at Georai for treatment. She states that from the Government Hospital at Georai she was brought to Beed by her 12 uncle and thereafter the police recorded her statement. She states that the accused was working as a Tailor in a shop owned by one Anil. She has identified the scissors as Article no.15. In cross-examination she has admitted that she was brought to the Court by her uncle Anil and he had told her to give her evidence in Court. She has admitted that one Sadashiv, Baban and another Sadashiv Sonawane were residing in adjacent rooms. She has also admitted that the noise from their house can be heard by others. She has admitted that they were financially poor and her father used to work in the shop for the whole day and even during night during the festival season. She has also admitted that at times, he used to return back on the next day. She has admitted that on the day of the incident she had gone to the school and had returned back by 12 noon and thereafter had slept at 9.00 p.m. She has admitted that when she had slept, her father was not at home. She has then admitted "it is true that when I woke up I saw my brothers and mother were lying in a pool of blood". She has then denied the suggestion that she had not heard any sound made by her mother and brothers. She has also denied the suggestion that she had not heard the screams of her mother and brothers. She has also admitted as true that she does not know as to when her father returned back in the night. She has then admitted as true that when she woke up her father had taken her on his laps and had given her water. She has denied the suggestion that she could not state as to who had killed her mother and brothers as she was asleep. She has also admitted that she was deposing as per the instructions of 13 her uncle that her father had taken her on his laps and she had asked him as to why he was assaulting them. She has also denied the suggestion that she was stating a falsehood that her father had assaulted them. She has admitted as true that as per the instructions of her uncle she was deposing that her father had told her that he would follow them. She has then denied the suggestion that she was deposing against the accused as per the instructions of her uncle and police. 8. Prosecution has also examined P.W.4 Sakharbai, who states that she knows the appellant/accused as he is her nephew and was residing in her neighbourhood. She states that the accused was residing in the rented premises with his wife, two sons Onkar and Akash and one daughter Gayatri. She has admitted that Onkar was suffering from Asthma. She states that on the day of the incident she had returned back from Aurangabad at about 8.00 p.m. and was sleeping in her house. She rose at about 5.30 a.m. for washing the utensils and had at that time had heard the cry of Gayatri asking her to open the door and also Gayatri informing her that her father had assaulted them. She states that she went near the room and found the door latched from outside and, therefore, opened the door and went inside. She saw Sangita, Akash and Onkar lying in a pool of blood. All three of them were dead and Gayatri had bleeding injuries. Gayatri told her that her father had assaulted all of them with scissors at night. She accordingly summoned Baban and Anil and thereafter Anil took Gayatri to the hospital. She 14 states that Gayatri is also known as Pooja. Learned Counsel for the appellant has urged before us that P.W.1 Gayatri cannot be said to be an eye-witness in the light of the admission given by her that when she had awakened from sleep she had seen her mother and brothers dead. According to us the stray admission made by P.W.1 Gayatri in her cross- examination that when she awoke she saw her brothers and mother lying in a pool of blood cannot be taken to mean that she had not witnessed the incident. Importantly, P.W.1 Gayatri has denied the suggestion that she had not heard the screams or the cries of her brothers and her mother. Coupled with this, the immediate disclosure made by P.W.1 Gayatri to P.W.4 Sakharbai that her father had assaulted them is of utmost importance. The aforesaid statement which is made by Gayatri soon after the incident is certainly admissible under section 6 of the Indian Evidence Act. The aforesaid statement made to Sakharbai and which Sakharbai has deposed to, corroborates the examination-in-chief of Gayatri that she had witnessed the appellant/accused assaulting her mother and her brothers. We find it most natural that since the house comprised of just two rooms, the cries of Sangita and Onkar and Akash how-so-ever muffled they might be, would have awakened Gayatri from her sleep. Gayatri has also deposed about the assault on her. In such circumstances, therefore, according to us the admission of Gayatri cannot be made use of to this extent of suggesting that Gayatri was asleep during the assault on her mother and her two brothers. Though Gayatri is a child witness and is susceptible to being tutored, yet no contradictions 15 or omissions of any importance have been elicited in her cross- examination. She Is an injured witness who had suffered a murderous assault by the accused and fortunately survived to depose about the same. We, therefore, find that evidence of P.W.1 Gayatri corroborated by the evidence of P.W.4 Sakharbai clearly establishes the offence against the appellant/accused beyond reasonable doubt. Coupled with this, the appellant/accused had gone to the police station and had confessed, though the confession of the appellant/accused is inadmissible in evidence, yet an offence came to be registered against the appellant/accused on the basis of his statement. 9. Prosecution has also examined P.W.5 Sunil, a shop owner from whom the accused had purchased the scissors. P.W.5 Sunil states that he runs a business of selling sewing machines in Dhondipura, Beed, in the name and style of "Gaikwad Sewing Machine". He states that he knows the accused who had come to his shop on 7th July, 2008, at about 1.00 p.m. and purchased scissors for Rs.160/-. P.W.5 Sunil states that he had issued him a receipt at Exh.24. He has identified Article no.15 as the same scissors sold by him to the accused. In cross-examination he has denied the suggestion that he was deposing false as per the instructions of the police. 10. On remand, prosecution has examined P.W.10 Shivaji, brother of deceased Sangita and uncle of P.W.1 Gayatri. P.W.10 Shivaji states that 16 he had received a telephonic message on 8th July, 2008, at about 7.00 a.m. about a quarrel between the accused and deceased Sangita. He accordingly reached Georai and noticed a crowd in front of the house of the accused. He also noticed the dead body of his sister and his nephews Onkar and Akash. He states that one Baban informed him that Pooja was admitted in the hospital at Beed and accordingly went to the Beed hospital. He states that in the hospital Pooja had informed him about the appellant/accused assaulting her mother and her brothers and also assaulting her. In cross-examination he has stated that he could not state as to from when Onkar was suffering from Asthma. Omission has been duly proved that he had not stated that he had again visited the hospital at Beed 21 days after the incident. 11. P.W.11 Shaikh Raju, who has been examined after the order of remand, states that he was working as a Driver with one Ramnath Dabhade who had asked him that one patient was to be carried from Georai hospital to Beed hospital. He states that accordingly he reached the Georai hospital with jeep and carried the patient by his jeep. He states that the name of the said patient was Gayatri, who was aged about 8 to 10 years. He further states that she was accompanied by her uncle and two other persons. He states that he had over-head Gayatri informing her uncle that her father had killed her mother and brothers and had attempted to kill her. In cross-examination he has admitted that his statement was recorded after 1-1/2 months. Even if the evidence of P.W. 17 11 Sk. Raju and P.W.10 Shivaji, uncle of deceased Gayatri is left out of consideration, the prosecution relies heavily on the evidence of Gayatri. 12. A reference may usefully be made to the judgment of the Supreme Court in Sushil Murmu vs. State of Jharkhand, (2004) 2 SCC 338. Supreme Court has observed thus at paragraphs 6, 7 & 8 of the judgment :- "6. Section 302 IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that Parliament is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354 (3). There is another provision in the Code which also uses