Case: Vasanta Sampat Dupare Vs. State of Maharashtra

2. According to the prosecution case on 3.4.2008 about 9-10 p.m., informant, Krushna Dudhraj Sharma, father of the deceased, lodged a report at the police station Wadi stating that he was staying in a tenanted house with his wife and two daughters, the kidnapped girl aged about 4 years and her sister aged about six months. One Subhash Sonawane was residing along with his wife and son in the neighbourhood of the informant as a tenant of the common landlord, Kushal Bansod. The appellant, Vasanta Dupare, a friend of Subhash Sonawane, was a frequent visitor to the house of Subhash. On the fateful day when the informant, carpenter by profession, returned home about 7.00 p.m., he found his wife weeping and on a query being made, she disclosed that Vasanta Dupare had taken the elder daughter on his bicycle while she was playing in the courtyard of the house and she had not yet returned home. He, being perturbed, searched for his daughter in the vicinity, but it was an exercise in futility. Thus, the initial allegation was that the appellant had kidnapped his minor daughter. On the basis of the aforesaid report, a crime was registered against the accused for an offence punishable under Section 363 of the IPC3. As the prosecution version further undrapes, on the same day, Santosh Ghatekar, PW-13, Assistant Police Inspector, while returning to the police station, received the information that the appellant was moving around Gati Godown located on Khadgaon Road, and he passed on the said information to Police Inspector D.J. Chauhan, PW-16, and eventually the appellant was apprehended and brought to the police station. While in police custody, on 4.4.2008, he took the investigating agency to the spot where he had after ravishing the minor girl child had murdered her. A memorandum of panchnama to that effect was prepared in the morning of 4.4.2008 and thereafter he led the police to the place of incident wherefrom the dead body of the minor girl was recovered. At his instance, the bicycle used was recovered from the godown located in between Khadgaon to Kamleshwar road belonging to one Ashwin Prakash Agrawal. Thereafter, the initial offence registered under Section 363 IPC was converted to offences under Section 376(2)(f), 367, 302 and 201 of the IPC. The Investigating Agency examined number of witnesses under Section 161 Cr.P.C. and completed all the formalities and laid the charge sheet before the competent court which in turn committed the matter to the Court of Session4. The accused-appellant pleaded his innocence and non-involvement and took the plea that he had been falsely implicated due to animosity5. The prosecution, to substantiate the charges levelled against the appellant, examined 17 witnesses. After closure of the evidence of the prosecution, the accused was examined under Section 313 of the Cr.P.C. and he pleaded complete denial and false implication. The defence chose not to adduce any evidence6. The learned trial Judge, on the basis of the evidence brought on record came to hold that the mother of the minor girl, Pinki, PW-1, knew the appellant because of his frequent visits to her neighbour Subhash; that she had seen the accused in the courtyard where the minor girl was playing along with other children; that she had also seen him going on a bicycle from the behind; that Vandana Ramkar, PW-5, had deposed categorically that while she was present outside Chandrawanshi Hospital after finishing her work, she saw the appellant going on the bicycle with the deceased and she had revealed when Pinki had made an enquiry about her daughter; that Baby Sharma, PW-6, and Minal @ Twinkle, PW-3, the child witness, have also unequivocally deposed that they had seen the accused taking the minor girl with him at the relevant time from the locality in question; that Baby Sharma had further deposed that the minor girl had fallen down from the bicycle near her shop and the cyclist had purchased Minto Fresh for the girl who was wearing black top and blue skirt; that she had identified the cyclist and also the photograph of the girl who had accompanied the appellant at the relevant time; that Subhash Sonawane, PW-11, had stated that the accused had been to his house for repairing his tape recorder on that day; that version of Subhash had received corroboration from his wife, Kavita, who has deposed that her daughter Akanksha and the victim were playing in the courtyard and at that juncture the appellant was standing in the courtyard; that the appellant had told Akanksha and the daughter of PW-1 that he would buy chocolates for them and, therefore, they should accompany him; that it had come in the testimony of Kavita, PW-12, that Akanksha, who was not having appropriate clothes on her person came back home and by that time accused took the victim girl on his bicycle; that Manisha, PW-2, who knew the appellant, had deposed that he had come to her house on the bicycle along with the girl and on being asked he had told her name and she was wearing black top and blue midi and the accused had mentioned to her that she was the daughter of his friend; that Baby Sharma, PW-6, had identified the clothes of the deceased which were on her person on the day of the incident and had also identified him that he was the person who had taken the girl; that the panch witnesses Ramprasad, PW-7 and Anand Borkar, PW-8, had stood embedded in their testimony about the recovery wherefrom the girl was taken and the place where the dead body was found, and they had also remained firm in their testimony proving the panchnama to indicate the seized incriminating materials, that is, two stones smeared with blood, blood mixed sample earth, branches of trees having blood stains, minto fresh and empty chocolate wrappers and nikar and other clothes of the accused from the spot; that the other two panch witnesses, namely, Purushottam Gore, PW-9, and Sanotsh Keche, PW-10, had stated about the parcels containing clothes of the deceased and various samples taken from the body of the deceased, received from the hospital and the recovery of the bicycle from the godown; and that nothing had been elicited which would create any kind of concavity in the testimony of these witnesses; and that the investigating officers had not given any room for doubt; that the examining doctor, Dr. Prashant Barve, who had conducted autopsy on the deceased had remained inflexible in the testimony as regards the reports; and that the ocular and the documentary evidence brought on record established beyond reasonable doubt that the accused by alluring a minor girl of four years for giving chocolates, had kidnapped her, raped her and caused injuries; and also had intentionally made disappear the evidence of the crime committed by him. On the aforesaid reasoning, the learned trial Judge found the appellant guilty of the offences and treated the same as a crime of extreme brutality, for he had committed rape on a minor girl aged about four years without thinking about the effect on the victim. It was also opined by the learned trial Judge that the accused was in mid 40s and had caused injuries by crushing stones weighing 8.5 kg. and 7.5 kg with force upon her when she was in unbearable pains because of the ferocious act of rape and injuries sustained by her; and that the accused was having criminal antecedents as he was prosecuted for various offences in four cases. Taking into consideration the totality of circumstances, that is, the aggravating and the mitigating circumstances, the learned trial Judge regarded the case as rarest of the rare cases and sentenced the appellant to suffer death penalty under Section 302 IPC, life imprisonment and fine of Rs.2,000/- with the default clause for the offence punishable under Section 376(2)(f) of the IPC; rigorous imprisonment for seven years and fine of Rs.1000/- with default clause for the offence punishable under Section 363 of the IPC; rigorous imprisonment for seven years and fine of Rs.1000/- with default clause for the offence punishable under Section 367 of the IPC; and rigorous imprisonment for three years and fine of Rs.1000/- with default clause for the offence punishable under Section 201 of the IPC with the stipulation that all the sentences relating to imprisonment shall be concurrent and submitted the proceedings to the High Court under Section 366(1) of the Code of Criminal Procedure, 1973 for confirmation of death sentence by the High Court7. As has been stated earlier, the appellant preferred a Criminal Appeal assailing the conviction and the sentence and the High Court appreciated the evidence afresh and found that the evidence of the witnesses was impeccable and totally beyond reproach and the prosecution had been able to prove the offences to the hilt. While dealing with the confirmation of the sentence, the High Court referred to various decisions and opined as follows:The accused raped a four years old girl and thereafter battered and smashed her head by two heavy stones and killed her. The aggravating circumstance as pointed out by us must be such as would have shocked the conscience of the community in general. The accused had acted in diabolical manner and had designedly lured the unsuspecting Muskan to accompany him on the bicycle. Battering of the head of the girl of tender years was done by the accused with extreme cruelty. The crime has been committed by the accused in an extremely cruel manner exhibiting brutality and utter perversity. The history sheet of the accused which is placed on record exhibits several prosecutions against him. The accused has not displayed any remorse or repentance for the act done by him and we do not find any material to indicate that there is a possibility of the accused reforming himself. The accused would continue to be a menace to the society and, therefore, according to us, this is a rarest of rare case calling for the extreme. The mitigating circumstances which are brought on record against the accused are that the accused is middle aged man of 45 years with no previous conviction so far. The accused is a married person having a family. However, the aggravating circumstances far out way the mitigating circumstances and according to us, the extreme penalty of death imposed by the trial court deserves to be confirmed

Reasoning:
24. In the case at hand, as is perceptible, the recovery had taken place when the appellant was accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony25. Additionally, another aspect can also be taken note of. The fact that the appellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct.27. We have referred to the aforesaid authorities only to highlight that in the present case the provision under Section 27 of Evidence Act is clearly attracted and we see no illegality in the seizure and the Panch witness have remained embedded in their version. Nothing has been suggested to disregard their evidence. Therefore, we have no hesitation in holding that there is ample proof of seizure of the articles. That apart, we have also additionally considered the conduct of the appellant that speaks eloquently, for it is worthy of being considered within the admissible parameters28. The next circumstance which has been accepted by the learned trail Judge and the High Court is the identification of the clothes and matching of blood stains of the appellants clothes. On the clothes that has been seized, the stains of human blood of A Group are detected. The chemical analysis report, Exhibit 77, has indicated that stains of human blood of A group which is detected on seized clothes, and the blood group that has been found on the clothes of the accused including his underwear and handkerchief is the same. The matching of the blood group gains signification in such a circumstance. The incriminating articles, namely, stones smeared with blood, the clothes and the blood group matching is an important circumstance showing complicity of the appellant in the crime in question29. Another facet which has immense significance is the injury report. It graphically depicts the injuries on the private parts of the minor girl which has been caused by sexual intercourse. Stains of human blood of A group have also been noticed on the front portion of the nikar of the accused as per Exhibit 77 which matches the blood group found on the stones30. The other relevant circumstance that weighs against the appellant is that the dead body of the deceased was recovered at the instance of the appellant. It was within his special knowledge. The tap where he had washed his clothes was quite nearby. In this context, it is worthy to note that the accused had disclosed the facts and on the basis of his disclosure statement he had led to the place where the dead body of the victim was found35. On a critical analysis of the evidence on record, we are convinced that the circumstances that have been clearly established are that the appellant was seen in the courtyard where the minor girl and other children were playing; that the appellant was seen taking the deceased on his bicycle; that he had gone to the grocery shop owned by PW-6 to buy Mint chocolate along with her; that the accused had told PW-2 that the child was the daughter of his friend and he was going to Tekdi-Wadi along with the girl; that the appellant had led to discovery of the dead body of the deceased, the place where he had washed his clothes and at his instance the stones smeared with blood were recovered; that the medical report clearly indicates about the injuries sustained by the deceased on her body; that the injuries sustained on the private parts have been stated by the doctor to have been caused by forcible sexual intercourse; that the stones that were seized were smeared with blood and the medical evidence corroborates the fact that injuries could have been caused by battering with stones; that the chemical analysis report shows that the blood group on the stones matches with the blood group found on the clothes of the appellant; that the appellant has not offered any explanation with regard to the recovery made at his instance; and that nothing has been stated in his examination under Section 313 Cr.P.C. that there was any justifiable reason to implicate him in the crime in question. Thus, we find that each of the incriminating circumstances has been clearly established and the chain of circumstances are conclusive in nature to exclude any kind of hypothesis, but the one proposed to be proved, and lead to a definite conclusion that the crime was committed by the accused. Therefore, we have no hesitation in affirming the judgment of conviction rendered by the learned trial Judge and affirmed by the High Court58. In the case at hand, as we find, not only the rape was committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances59. We are absolutely conscious that mitigating circumstances are to be taken into consideration. Learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. Learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had number of cases are pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to the society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances60. As we perceive, this case deserves to fall in the category of rarest of the rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven make a four year minor innocent girl child the prey of his lust and deliberately cause her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of rarest of the rare case and we unhesitatingly so hold