CC/4/2005 1/100 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No. 4 of 2005 WITH CRIMINAL APPEAL No. 1221 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE H.B.ANTANI ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 To be referred to the Reporter or not? 3 Whether Their Lordships wish to see the fair copy of the judgment? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to the Civil judge? ============================================================== CRIMINAL CONFIRMATION CASE No. 4 of 2005 STATE OF GUJARAT – APPELLANT Versus RAMESHBHAI CHANDUBHAI RATHOD - RESPONDENT (ORIGINAL ACCUSED IN SESSIONS CASE NO. 79 OF 2000) CRIMINAL APPEAL No. 1221 of 2005 RAMESHBHAI CHANDUBHAI RATHOD - APPELLANT Versus STATE OF GUJARAT – RESPONDENT ============================================================== Appearance: MR KT DAVE, ADDITIONAL PUBLIC PROSECUTOR, FOR THE STATE. MR US BRAHMBHATT, FOR THE ACCUSED. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI CC/4/2005 2/100 JUDGMENT Date : 16/02/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) 1. Confirmation Case No. 4 of 2005 arises pursuant to submission of proceedings of Sessions Case No. 79 of 2000 made under Section 366(1) of the Code of Criminal Procedure (“the Code”, for short) by the learned Additional Sessions Judge, Fast Track Court No 9, Surat, who by his judgment dated July 18, 2005, has sentenced the respondent No. 1 i.e. Rameshbhai Chandubhai Rathod to death for commission of offence punishable under Section 302, whereas Criminal Appeal No. 1221 of 2005, filed under Section 374(2) of the Code, is also directed against the same judgment, by which the appellant therein is convicted for commission of offences punishable under Sections 363, 366, 376, 397 and 302 IPC and sentenced to RI for 7 years and fine of Rs. 500, in default SI for 1 month for commission of offence punishable under Section 363 IPC as well as RI for 10 years and fine of Rs.500, in default SI for 1 month for commission of offence punishable under Section 366 IPC and RI for life and fine of Rs. 1,000/-, in default SI for 2 months, for commission of offence punishable under Section 376 IPC as CC/4/2005 3/100 JUDGMENT well as RI for 7 years for commission of offence punishable under Section 397 IPC and death for commission of offence punishable under Section 302 IPC. 2. In view of law laid down in Bhupinder Sharma Vs. State of Himachal Pradesh, (2003) 8 SCC 551, the name of the victim is not referred to in this judgment. 3. The facts emerging from the record of the case are as under: The complainant i.e. Nareshbhai Thakorebhai Patel is residing in flat No. A/2 of Sanudip Apartment, located on Rander Road of Surat City, with his family. On the Ground Floor of the apartment, he is running a grocery shop as well as a STD PCO Booth. The name of his wife is Ms. Kailashben. Ms. Kailashben gave birth to two children during subsistence of her marriage with the complainant. The eldest is boy named Brijesh who was aged about 16 years at the time of incident. The deceased was student of IVth Standard, in Ankur School, situated near Sardar Circle, Surat, whereas son of the complainant was prosecuting studies in Swaminarayan Gurukul and was staying in hostel of Swaminarayan Temple. The appellant was employed as Watchman of Sanudip CC/4/2005 4/100 JUDGMENT Apartment and was residing with his wife Savita and two children in a room of the apartment which is opposite Sanudip Apartment. The incident took place on December 17, 1999. The complainant with his wife, Ms. Kailashben, went to Udhana at about 8 PM to attend a religious ceremony. After return from Udhana, the complainant did not find the victim. Therefore, he made inquiries about the victim with his relatives. Those staying in the apartment informed the complainant that sometime before his return from Udhana, the deceased was playing racket and shuttlecock, but they were not knowing as to where she had gone. The complainant made extensive search about his daughter of tender age but in vain. At about 2.30 AM on December 18, 1999, he lodged complaint with Rander Police Station, stating that the victim was missing. The information given by the complainant was recorded by Head Constable Ramdas Barko Borde, who was PSO of the Police Station. Head Constable Borde handed over investigation of complaint lodged by the complainant to ASI Mr. Ashokbhai H. Patil. After lodging the complaint, the complainant continued search of the victim. On December 18, 1999, one Mr. Bipinbhai Bhandari, who is a friend of the complainant, came to the house of the complainant and informed the complainant that his old servant, Vishnubhai, had informed him that CC/4/2005 5/100 JUDGMENT he had spotted the appellant taking the deceased with him on his cycle. Mr. Bipinbhai also informed the complainant that he was told by Vishnubhai that he had shouted at the appellant but the appellant had not stopped. On learning these facts, the complainant started search of the appellant, who was employed as Watchman of the apartment. The complainant also informed the police as to what was conveyed to him by his friend Mr. Bipinbhai Bhandari. Extensive search about the victim and the appellant did not yield any result on December 18, 1999. Mr. Chandravadan Naginbhai Patel, who is brother-in-law of the complainant, stayed at the house of complainant in the night of December 18, 1999. In the morning of December 19, 1999, while going home to take a bath, Mr. Chandravadan Patel spotted the appellant sitting in an open space near vegetable market. Mr. Chandravadan asked the appellant as to where the victim was. Thereupon, the appellant informed Mr. Chandravadan that he had raped the victim and killed her. Therefore, Mr. Chandravadan brought the appellant to the house of the complainant. On being asked, the appellant informed the complainant and others, who had collected near the house of the complainant, that he had taken the deceased on December 17, 1999 with him on his bicycle and raped her and as he had feared that she would disclose the CC/4/2005 6/100 JUDGMENT incident to others, he had killed her. Thereupon, the complainant informed the police, who arrived at the house of the complainant within no time. The appellant took the complainant and police to the place of incident where dead body of the deceased was found lying. The complainant, thereupon, lodged First Information Report about rape of his daughter and her murder, against the appellant on December 19, 1999. On the basis of complaint of the complainant, offences were registered against the appellant. The complaint of the complainant was investigated by PI Mr. SA Desai. PI Mr. Desai held inquest on the dead body of the deceased and made arrangements for sending the same to hospital for post- mortem examination. From the place of incident, a broken bottle containing Castor Oil, and a knife, were recovered. The appellant was arrested and pursuant to disclosure statement made by him, the cycle used by him, for carrying the deceased to the place of incident, and school-bag of the deceased, containing gold and silver ornaments, were recovered. Silver and gold ornaments recovered from the school-bag were identified by mother of the deceased as belonging to the deceased. PI Mr. Desai recorded statements of those persons who were supposed to be conversant with the facts of the case. Incriminating articles seized during the course of CC/4/2005 7/100 JUDGMENT investigation were sent to Forensic Science Laboratory (FSL) for analysis. The post-mortem examination of the body of the deceased indicated that the deceased was subjected to rape and was, thereafter, murdered. The appellant, who was arrested, was forwarded to Dr. Meghrekhaben Mehta for Medical Examination. Before Dr. Megrekhaben Mehta, the appellant stated that he had sustained injuries while committing rape and murder. On completion of investigation, the appellant was chargesheeted in the Court of learned Chief Judicial Magistrate, Surat, for commission of offences punishable under Sections 363, 366, 376, 302 and 397 IPC. As the offences punishable under Sections 366, 376, 397, 302 are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Surat for trial, where it was numbered as Sessions Case No. 79 of 2000. 4. The learned Additional Sessions Judge, to whom the case was made over for trial, framed necessary charge against the appellant at Exh. 4. It was read-over and explained to him. He pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (i) Mohd. Illiyas Ishaq Mohd. Shaikh as PW 1, at Exh. 8; (ii) Complainant Nareshbhai Thakorebhai Patel as PW 2, at Exh. 22; (iii) Ms. Kailashben i.e. mother of CC/4/2005 8/100 JUDGMENT the victim and wife of complainant Nareshbhai Patel as PW 3, at Exh. 29; (iv) Mr. Chandravadan Naginbhai Patel as PW4, at Exh. 30; (v) Bipinbhai Babubhai Bhandari as PW 4, at Exh. 31; (vi) Shankarbhai Shivprasad Mainali as PW 5, at Exh. 32; (vii) Jagdishbhai Thakorebhai Patel as PW 7, at Exh. 33; (viii) panch Surekhaben Sureshbhai Desai as PW 8, at Exh. 34; (ix) Arvindbhai Jagjivandas Patel as PW 9, at Exh. 36; (x) panch Naresbhai Keshavbhai Patel as PW 10, at Exh. 37; (xi) panch Ashokbhai Jasvantbhai Bhandari as PW 11, at Exh. 43; (xii) panch Pravinbhai Madhubhai Patel as PW 12, at Exh. 44; (xiii) panch Jayantilal Ishwarlal Shah as PW 13, at Exh. 49; (xiv) panch Iswarbhai Ganpatbhai Patel as PW 14, at Exh. 50; (xv) Devendra Kantibhai Patel as PW 15, at Exh. 53; (xvi) Bhaveshbhai Arvindbhai Patel as PW 16, at Exh. 54; (xvii) child-witness Darshanaben Chandravadanbhai Patel as PW 17, at Exh. 71; (xviii) Mr. Hiralkumar Bipinbhai Patel as PW 18, at Exh. 72; (xix) panch Kalyanbhai Laxmanbhai Patel as PW 19, at Exh. 73; (xx) panch Kishorebhai Bachubhai Patel as PW 20, at Exh. 75; (xxi) panch Sandipkumar Vasantbhai Tailor as PW 21, at Exh. 81; (xxii) panch Maheshbhai Chotubhai Patel as PW 22, at Exh. 82; (xxiii) panch Dipakkumar Parbhubhai Patel as PW 23, at Exh. 86; (xxiv) Vishnu Bahadur Narbahadur Pariyar as PW 24, at Exh. 89; (xxv) Police Constable Arvindbhai CC/4/2005 9/100 JUDGMENT Budhiyabhai Patel as PW 25, at Exh. 90; (xxvi) Head Constable Ramdas Barku Borde as PW 26, at Exh. 94; (xxvii) Circle Inspector Dalpatbhai Dayalbhai Patel as PW 27, at Exh. 99; (xxviii) ASI Ashokbhai Bhilalbhai Patil as PW 28, at Exh. 103; (xxix) PSO Rameshbhai Govindbhai Nikwade as PW 29, at Exh. 104; (xxx) Dr. Meghrekhaben Hasmukhbhai Mehta as PW 30, at Exh. 105; (xxxi) PSI Abdul Rahim Ahmed Shaikh as PW 31, at Exh. 112; (xxxii) Dr. Sanjeevkumar Thakorelal Garasiya as PW 32, at Exh. 114; (xxxiii) Scientific Assistant in Forensic Science Laboratory i.e. Hitesbhai Natvarlal Trivedi as PW 33, at Exh. 116; and (xxxiv) Investigating Officer Mr. Sunderbhai Ambaram Desai as PW 34, at 119. The prosecution has also produced documentary evidence, such as: (i) post-mortem notes of the deceased- victim, at Exh. 9; (ii) complaint lodged by Nareshbhai against the appellant for committing rape of his daughter and murder of his daughter on December 19, 1999, at Exh. 23; (iii) complaint lodged by Nareshbhai on December 18, 1999 wherein it was mentioned that his daughter was missing, at Exh. 25; (iv) Inquest Report, at Exh. 35; (v) panchnama of place of incident and seizure of blue pant put on by the victim, her chappels, broken bottle containing Castor Oil, etc., at Exh. 38; (vi) panchnama CC/4/2005 10/100 JUDGMENT of seizure of clothes of the appellant, at Exh. 45; (vii) panchnama of recovery of cycle belonging to the appellant and find of school-bag belonging to the deceased from where anklets and two gold earrings were recovered, at Exh. 51; (viii) panchnama indicating seizure of blood stained earth from the place of incident and blood stained hair-pins, at Exh. 74; (ix) panchnama of seizure of clothes of the deceased, at Exh. 83; (x) panchnama of recovery of semen by doctor from dry grass found at the place of incident, at Exh. 87; (xi) entry made in the Police Station Diary indicating that the complaint lodged by Nareshbhai on December 18, 1999 was registered, at Exh. 95; (xii) entry from Police Station Diary indicating that the complaint of Nareshbhai against the appellant was registered, at Exh. 97; (xiii) Map of place of incident prepared by Circle Inspector Mr Patel, at Exh. 102; (xiv) Medico-legal case papers of the appellant prepared by Dr. Mehta, at Exh. 107; (xv) Certificate indicating the result after Medical Examination of the appellant, at Exh. 110; (xvi) Report of semen analysed of the appellant, at Exh. 115; and (xvii) Report of Forensic Science Laboratory, at Exh. 129, etc. in support of its case against the appellant. 5. After recording of evidence of prosecution CC/4/2005 11/100 JUDGMENT witnesses was over, the learned Judge of the Trial Court explained to the appellant the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement, as required by Section 313 of the Code of Criminal Procedure, 1973. In the further statement, the case of the appellant was that of total denial. However, in answer to last question, he expressed his desire to file his written statement in the case. The learned Additional Sessions Judge granted the permission and accordingly, the appellant filed his written statement at Exh. 133. In his written statement, the appellant mentioned that he was staying with his family, consisting of his wife and two daughters, out of whom one was aged about 10 years. He further said stated he was working as a Watchman in Sanudip Apartment since years and had no enmity with anyone nor any of the occupants had any grievance against him nor any complaint was filed against him. According to him, the deceased, from her tender age, was playing with his daughters and was often coming to his room. It was stated by the appellant in his written statement that the deceased was also playing with other girls of the apartment and no grievance was made that he had committed misconduct with any of the girls. It was asserted by the appellant that after learning that the victim was missing, he had CC/4/2005 12/100 JUDGMENT searched about the victim with others and had also visited house of the complainant where he had dined and that he was present in the flat occupied by the complainant when policemen had come to the flat of the victim in connection with the complaint lodged by the complainant on December 18, 1999. It was mentioned by him that he had always cooperated with the police and others. According to him, he had not made any extra- judicial confession either before the residents of the society or police nor had shown the place where dead body of the deceased was lying nor admitted guilt of the offence before panch-witnesses nor was he taken by the police to the place of incident nor had he taken out any article from school-bag of the deceased and the entire evidence was concocted to implicate him falsely in the case. What was asserted by the appellant in his written statement was that he had not taken the deceased to any place on his cycle and that a false case was lodged against him to save skin of close relatives of the complainant. By filing written statement, the appellant emphasised that he was totally innocent. However, it is relevant to notice that no defence evidence was adduced at all by the appellant to substantiate the claims advanced by him in his written statement. CC/4/2005 13/100 JUDGMENT 6. After scrutinising the oral and documentary evidence in the case, the learned Additional Sessions Judge noticed that the whole case against the appellant was based on circumstantial evidence. On critical analysis of evidence of (i) Ms. Darshnaben Patel and (ii) Mr. Sandipkumar Tailor, the learned Judge concluded that the deceased was last seen playing badminton with the appellant, in the apartment where the complainant is residing. The learned Judge noticed that testimony of witness Vishnu Bahadur was reliable, as he was not related to any of the relatives of the deceased nor had any animosity with the appellant, but was serving with the Nepal Army and had come to India specially for the purpose of tendering evidence. On critical examination of evidence of (i) Vishnubahadur Narbahadur and (ii) Shankarbhai Mainani, the learned Judge held that the first incriminating circumstance, namely, that the deceased was last seen alive in the company of the appellant near Adajan Patia, Surat, was satisfactorily established. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved beyond reasonable doubt that the appellant had enticed the victim, who was aged 10 years, out of the keeping of her lawful guardian with intent to force her to illicit intercourse and, therefore, commission of offences CC/4/2005 14/100 JUDGMENT punishable under Sections 363 and 366 IPC were established. The learned Judge further held that extra- judicial confession made by the appellant was proved by the reliable testimony of: (i) complainant Nareshbhai, PW 2, examined at Exh. 22; (ii) witness Chandravadan, PW 4, examined at Exh. 30; (iii) Bipinbhai, PW 5, examined at Exh. 31; and (iv) witness Arvindbhai Patel, PW 9, examined at Exh. 36. According to the learned Judge, the evidence of abovereferredto witnesses did not indicate that extra-judicial confession was made by the appellant in presence of police nor it was made by the appellant under coercion or duress. The learned Judge further noticed that the appellant had close relations with family of the deceased and, therefore, taking undue advantage of his position, the appellant had taken the deceased to a secluded place and murdered her after committing rape on her. The learned Judge further concluded that find of bottle containing 5 Mg of Castor Oil exhibited bad intention of the appellant. The learned Judge noticed that the appellant had injuries which could have been sustained by him while committing rape and murder of the deceased and this was also an incriminating circumstance against him. The learned Judge deduced that the case of the prosecution, that the appellant had committed murder of the deceased by means CC/4/2005 15/100 JUDGMENT of knife, was inspiring confidence because the appellant was a Watchman and knife was handy to him. According to the learned Judge, over and above the extra-judicial confession made by the appellant before the witnesses, who had collected in the apartment of the complainant, and the complainant, the appellant had also made extra- judicial confession before Dr. Meghrekhaben in the form of narrating history when he was presented before Dr. Meghrekhaben for Medical Examination, which established involvement of the appellant in rape and murder of the deceased. According to the learned Judge, place of incident was pointed out by the appellant whereas cycle belonging to the appellant and school-bag belonging to the deceased were discovered by the appellant and these circumstances were also incriminating in nature. The learned Judge noticed that, from the school-bag belonging to the deceased, which was discovered by the appellant, silver and gold ornaments were recovered which were identified by mother of the deceased as belonging to the deceased and, therefore, commission of offence punishable under Section 397 IPC was established. The learned Judge noticed medical evidence produced by the prosecution and concluded that homicidal death of the deceased and rape on her were established beyond reasonable doubt. The learned Judge found that the chain of circumstances was CC/4/2005 16/100 JUDGMENT complete and it was proved by the prosecution that in all human probability, rape on and murder of victim was committed by the appellant alone and alone and none else. The learned Judge noticed that the circumstances established were consistent only with the guilt of the appellant and were not consistent with his innocence at all. In view of abovereferredto conclusions, the learned Judge has convicted the appellant for commission of offences punishable under Sections 363, 366, 397, 376, 302 IPC and imposed different punishments enumerated earlier, including that of death sentence vide judgment dated May 18, 2005, giving rise to abovenumbered Confirmation Case and Conviction Appeal. 7. Mr. U. S. Brahmaputra, learned Counsel of the appellant, contended that Dr. Shaikh, who had performed autopsy on the dead body of the deceased, has not stated that because of rape committed on the deceased, she had died or the injuries inflicted on her were sufficient in the ordinary course of nature to cause her death and, therefore, unwarranted conviction of the appellant under Section 302 is liable to be set aside. The learned Counsel emphasised that the medical evidence does not point out as to when the death of the deceased had taken place nor the age of injuries is mentioned in the post- CC/4/2005 17/100 JUDGMENT mortem notes and, therefore, the case of the prosecution that after kidnapping the victim on December 17, 1999, she was subjected to rape and thereafter, murdered between 22-00 Hours of December 17, 1999 and 8.00 AM of December 19, 1999, should not have been accepted by the Court. The learned Counsel argued that causing of punctured wounds to the victim is not possible with muddamal knife produced by the Court and as the prosecution has failed to establish as to how punctured wounds were caused to the deceased, the case of the prosecution should have been disbelieved. It was emphasised that nail examination of victim of rape is necessary in a rape case, but as admitted by Dr. Shaikh, he had not carried out examination of nails of the victim and as this lapse has prejudiced the appellant in his defence that he was falsely implicated in the case, the judgment impugned in the appeal should be set aside. The learned Counsel argued that the testimony of Dr. Shaikh makes it very clear that he had conducted post-mortem examination after reading inquest report and as post- mortem report was prepared on the basis of inquest report, the same should not have been acted upon by the Trial Court while deciding guilt or otherwise of the appellant. The learned Counsel referred to the testimony of complainant Nareshbhai in detail and pointed out that CC/4/2005 18/100 JUDGMENT in his testimony, he has stated that extra-judicial confession was made by the appellant before him and others, but in the complaint lodged by him, it is stated that extra-judicial confession was made by the appellant when police was present and in view of this discrepancy in evidence, the Trial Court should not have concluded that it was proved by the prosecution beyond reasonable doubt that the appellant had made extra-judicial confession before complainant Nareshbhai. The learned Counsel pleaded that even at the time of filing information report on December 18, 1999 before police that his daughter was missing, the complainant had neither mentioned description of his daughter nor described the clothes put on by her nor had stated that she was wearing gold / silver ornaments nor raised accusing finger at anyone and as the case of the prosecution against the appellant is based on suspicion, the appeal should be allowed. Similarly, after referring to the evidence of Chandravadan Patel, it was argued that it was claimed by the said witness that the appellant had made extra-judicial confession before him but the so- called confession was not referred to at all by the witness in his police statement and, therefore, the claim advanced by him that the appellant had made extra- judicial confession before him should have been CC/4/2005 19/100 JUDGMENT disbelieved by the Court. The learned Counsel referred to the testimony of witness Bipinbhai Bhandari in detail and argued that his claim that witness Vishnu had informed him that he had seen the appellant with victim on