1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 836 OF 2003 Kachru Baburao Vaidya, ] Age : 28 Yrs, R/o. Andarsul, Tal. Yeola, ] Dist. Nasik. ] Presently confined at, Convict Prisoner ] No. C-3941, Nasik Road Central Prison, Nasik. ] Appellant Vs The State of Maharashtra, ] (Through Yeola Tal. Police Station, ] Dist. Nasik) ] Respondent Mrs. Pranali Kakade, appointed advocate for the Appellant Mrs. P.H. Kantharia, APP for the Respondent - State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 17th MARCH, 2010 ORAL JUDGMENT: (PER SMT. V.K. TAHILRAMANI, J) 1. Through this appeal, the appellant / original accused has challenged the judgment and order dated 28th November, 2002 passed by learned Additional Sessions Judge of Niphad, Dist. Nashik in apeal836-03 2 Sessions Case No.4 of 2002. By the said judgment and order, the learned Sessions Judge convicted the appellant under sections 201, 376 and 302 of I.P.C. For the offence under section 376 of I.P.C., the appellant came to be sentenced to RI for 7 years and to pay fine of Rs. 1000/- in default RI for six months. For the offence under section 302, he came to be sentenced to life imprisonment and to pay fine of Rs. 1000/- in default RI for six months. No separate sentence is awarded under section 201 of I.P.C. The learned Additional Sessions Judge directed both the substantive sentences of imprisonment to run concurrently. 2. The prosecution case briefly stated, is as under: The accused is resident of village Andarsul, Tal. Yeola, Dist. Nashik. He was married to Kalyabai (PW 9) who was the daughter of PW1 Mhalu Mhatarba Kandalkar. PW1 Mhalu is a shepherd. Being a shepherd, he moved in a group from village to village for grazing flock of their sheep. At the relevant time, he was at Mamdapur. On 19.08.2001, the appellant left the house telling his wife Kalyabai that he would bring her sister Radhabai (deceased) to help them in operation of plantation of onion. Thereafter, the appellant apeal836-03 3 went away on bicycle to bring Radhabai. The evidence of PW1 Mhalu shows that on 19.08.2001, his son in law (appellant) came to Mamdapur and requested him to send his daughter Radhabai with him to help in the work of plantation of onion. The appellant promised to reach Radhabai back within about two-three days after completion of the work. PW1 Mhalu agreed to send his daughter with the appellant. At that time, the appellant also demanded dorle and golds beads of his wife which were kept with PW1 Mhalu. PW1 Mhalu handed over the said dorle and golds beads to the accused. Radhabai took some extra clothes in a nylon bag as she was to stay at Andarsul for a few days with the appellant and her sister. Thereafter, at about 9 a.m., the appellant and Radhabai left on his bicycle to go to his house at village Andarsul. In the evening, Kalyabai told her mother in law and others that her husband had not returned. On the next day, she sent a message to her father that her husband and her sister had not come home. That night, her father came at about 9.00 pm on motor cycle and asked her whether her husband and Radhabai had come. She informed in the negative. Thereafter, her father left. On the third day i.e on 22.08.2001, the body of Radhabai was apeal836-03 4 found near Ankai railway station. At that time, identity of the body was not known. On looking to the nature of injuries, the police realized that the girl had been murdered, hence PW7 PSI Prakash Pille attached to Yeola Taluka police station lodged complaint (Exh. 53) on behalf of the State. Thereafter, information was given in the newspaper about finding of dead body. On the next day, father of the deceased i.e PW1 Mhalu came to the police station to make inquiries. PW1 Mhalu identified the body and told it was the body of his daughter Radhabai. On investigation, it was revealed that Radhabai had been raped and thereafter, she came to be murdered and that the appellant was responsible for the same. Hence, charge sheet came to be filed against the appellant under section 376 and 302 of I.P.C. 3. Charge came to be framed against the appellant - accused for offence under sections, 376, 302 and 201 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that of total denial and false implication. After going through the evidence adduced by the prosecution, learned Additional Session Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. apeal836-03 5 4. We have heard learned advocate for the appellant - original accused and learned APP for the State. We have perused the evidence as well as the judgment and order passed by the learned Additional Sessions Judge. After giving our anxious consideration to the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Additional Sessions Judge does not call for any interference. 5. In the present case, undisputedly, the prosecution case is based only on circumstantial evidence. The principles governing such cases are by now well settled. In such cases, the prosecution has to establish chain of circumstances, which unerringly points to the guilt of the accused. The evidence has to be complete and incapable of supporting any hypothesis consistent with the innocence of the accused. The circumstances must be conclusive in nature. All the circumstances should be complete and should be fully proved. The circumstances sought to be relied upon must be closely connected with the principal fact. The cumulative effect of the circumstances must be capable of ruling out any possibility of the innocence of the accused. In the present case, the main circumstances against the apeal836-03 6 appellant are:- 1) The deceased was last seen with the appellant, 2) Absconding by the appellant immediately after the incident, 3) Finding of blood stains on the clothes of the appellant, 4) At the time of his arrest, Dorle and gold beads handed over by his father-in-law were found with him. 6. In this case, there is positive evidence that the deceased and the appellant were last seen together by the witnesses. PW1 Mhalu who is the father in law of appellant and father of deceased Radhabai has clearly stated that on 19.08.2001, his son in law (appellant) came to Mamdapur and requested him to send his younger daughter Radhabai with him to help in the work of onion plantation. The appellant promised to reach Radhabai back within about two three days after completion of the work. PW1 Mhalu agreed to send his daughter Radhabai with the appellant. At that time, the appellant also demanded dorle and golds beads of his wife which were kept with PW1 Mhalu. PW1 Mhalu handed over the said dorle and golds beads to the accused. Deceased Radhabai took some extra clothes in a nylon bag as she was to stay at Andarsul for few days with the appellant and her sister. Thereafter, at about 9 a.m., the appellant and Radhabai left apeal836-03 7 on his bicycle to go to his house at village Andarsul. 7. The evidence of PW1 Mhalu receives corroboration from the evidence of PW8 Waluba. PW8 Waluba has stated that the appellant came to Mamdapur at about 8.30 am. He along with PW1 Mhalu were grazing their sheep. The appellant requested PW1 Mhalu to send his daughter Radhabai to help him in onion plantation. Thereafter, at about 9 a.m., the appellant and Radhabai left the place on bicycle. He had no occasion to see Radhabai thereafter and after three-four days , the dead body of Radhabai was brought to Mamdapur for funeral. 8. The evidence of PW1 Mhalu also receives some degree of corroboration from the evidence of wife of the appellant PW9 - Kalyabai. Kalyabai has stated that on 19.08.2001, the appellant left the house telling her that he would bring her sister Radhabai to help them in operation of onion plantation. Thereafter, the appellant went away on bicycle to bring Radhabai. In the evening, Kalyabai told her mother in law and others that her husband had not returned. On the next day, she sent a message to her father that her husband and her apeal836-03 8 sister had not come home. That night, her father came at about 9.00 pm on motor cycle and asked her whether her husband and Radhabai had come. She informed in the negative. Thereafter, her father left. On the third day, thereafter, she saw the dead body of her sister Radhabai. 9. The evidence of PW4 Bhaginath Kandalkar who is the brother of PW1 Mhalu also supports the evidence of PW1 Mhalu on the aspect of last seen. On the day of the incident, PW1 Mhalu was residing at Mamdapur whereas this witness was at Narkhede. This witness has stated that at about 1.00 pm, the appellant and the deceased came to Narkhede on bicycle. When this witness saw the appellant, he gave a call to the appellant and called him for a cup of tea, however, the appellant refused by saying that he was in a hurry as he wanted to go for plantation of onion and the appellant went away towards Andarsul side. Next day, he received a message that the deceased and the appellant did not reach the house of the appellant and two days thereafter, he saw dead body of his niece Radhabai. 10. The evidence of PW12 Bhausahib also lends credence to the apeal836-03 9 prosecution case. This witness has stated that he owns a tractor. He knew PW1 Mhalu. Mhalu paid him Rs. 2000/- in advance for doing the work of leveling of land of his son-in-law i.e the appellant at Andarsul. On 19.08.2001, he went to the land of the appellant. He worked there till about 1/1.30 p.m.. The appellant was not at home. The wife of the appellant told him that the appellant had gone to bring her sister but he did not return back, therefore, she asked him to give a message to her father PW1 Mhalu. He conveyed her message. Thus, the evidence of this witness shows that on the relevant day, the appellant went to Mamdapur to bring his sister in law Radhabai with him to Andarsul and thereafter, Radhabai was not seen alive. Not only was Radhabai not seen alive thereafter, but thereafter the appellant also absconded. 11. All these witnesses i.e PW1, PW4, PW8 and PW9 have remained unshaken in their cross-examination. No dent could be created in their testimony. Hence, we have no hesitation in relying on the testimony of these witnesses and coming to the conclusion that the circumstances of "last seen" has been proved against the appellant. The last-seen theory comes into play especially in cases of this nature where the time apeal836-03 10 gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is not much and the other circumstances are such that possibility of any person other than the accused being the author of the crime become impossible. In this case, there is positive evidence that the deceased and the appellant were seen together by witnesses PW4 and PW8 in addition to the evidence of PW1. 12. Besides the evidence of "last seen", the prosecution has also brought on record the circumstance that when the appellant came to be arrested, his clothes came to be seized. The said clothes bore human blood stains. The learned advocate for the appellant argued that since the report of the serologist does not determine the blood group of the stains on the clothes of the appellant, the mere finding of human blood on these articles is of no consequence whatsoever. However, in our view, the finding of "human" blood on the clothes of the appellant and the fact that no explanation has been furnished by the accused for the presence of blood stains lends corroboration to the prosecution case. In taking this view, we are supported by the decision of the Supreme Court in the case of Khujji V/s. State of M.P., AIR 1991 SC 1853. In the said decision, the Supreme Court has observed that it apeal836-03 11 cannot be said that in the absence of determination of blood group the finding of human blood on the weapon or garment of the accused is of no consequence. We, therefore, find no substance in this contention urged by learned advocate for the appellant. 13. PW1 Mhalu has stated that when the appellant came to take Radhabai with him, at that time, appellant demanded gold Dorle and beads belonging to his wife from his father-in-law i.e PW1 Mhalu. Mhalu gave the said Dorle and gold beads to the appellant. It is pertinent to note that when the appellant came to be arrested, Dorle and gold beads came to be found with the appellant. This circumstance lends further corroboration to the prosecution story as well as the evidence of PW1 Mhalu. 14. After the appellant took Radhabai with him, he absconded. There was no reason for the appellant to not come home on the same day. The very fact that he disappeared and that the police had to search for him and lay a trap for the appellant and ultimately, apprehend him on 23.08.2001 on Yeola road also points out to his complicity in the offence. apeal836-03 12 15. Moreover, it is seen that the custody of minor Radhabai was handed over to the appellant, he has not given any explanation as to what happened to Radhabai and how she came to sustain injuries and died though Radhabai was supposed to be in his custody. In the facts and circumstances of this case this non-explanation by the appellant would also go against him. 16. Lastly, learned advocate for the appellant stated that there is no evidence to show that the rape was committed on Radhabai. In support of this contention, she has pointed out that no semen was found on the clothes of Radhabai or her body. As far as this aspect is concerned, the evidence of PW6 Dr. Laturkar and postmortem notes (Exh 51) clearly show that the hymen was torn. Radhabai was a young unmarried who was hardly about 15 years of age. In such case, during postmortem, finding of torn hymen assumes great significance which clearly strengthens the prosecution case. Mere absence of sperm cannot lead to the conclusion that no rape was committed. In State of Himachal Pradesh Vs. Raghubir Singh; (1993)2 SCC 622, the Supreme Court has observed that absence of spermatozoa cannot be fatal to the prosecution case. Hence, we do not find any merit in this apeal836-03 13 submission. 17. The circumstances established by the prosecution give rise to the only inference that the appellant has committed murder of his sister in law Radhabai after committing rape on her. As the initial burden is discharged by the prosecution, it is for the appellant to explain the circumstances which were within his special knowledge in view of section 106 of the Evidence Act. The fact that the appellant has not given any explanation under section 313 of Cr. P.C. regarding death of Radhabai despite Radhabai being in his custody further strengthens the conclusion that the appellant is the perpetrator of the offence. 18. Taking overall view of the circumstances established by the prosecution, in our considered opinion, no fault can be found with the conviction and sentence recorded by the learned trial Judge. In result, the appeal must fail and is accordingly dismissed. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] apeal836-03 14 apeal836-03