Dattatraya @ Datta Ambo Rokade vs The State Of Maharashtra

When PW 2 returned home around 2.00 p.m. she found that her youngest daughter, being the victim, was not at home. Assuming that the victim might be playing somewhere nearby, PW 2 left for work at around 2.15 p.m. At around 4.30 to 5.00 p.m. PW 2 received a call on her mobile phone from one Avaghade Mama, informing her that the victim was not at home. PW 2 thereafter returned home, and started searching for the victim. She contacted the complainant as also her own parents on mobile.

4. Thereafter the complainant, PW 2, her mother and brother all started looking for the victim in Koparigaon, Vashi and Sanpada areas. As the victim could not be found, a missing report was lodged with the APMC Police Station.

5. When the complainant and his wife (PW 2) reached home at around 2.30 a.m. after frantic efforts to trace the victim, they found the victim lying nude and still in front of the door of their tenement, with no movement.

6. The complainant contacted the police from his mobile and told the police that his daughter (the victim) had been found lying still, without any movement. The complainant and PW 2 took the victim to the Navi Mumbai Municipal Corporation Hospital, where the Medical Officer examined the victim and declared her ‘brought dead’.

7. In the hospital the complainant noticed injuries on the body of victim. There was redness on both shoulders and both thighs of the victim, and laceration in the vagina and anus of the victim. Accompanied by the Inspector of APMC Police Station, who had come to the hospital for investigation, the complainant went to the APMC Police Station and lodged a First Information Report, on the basis of which Crime No.120/2013 was registered by the APMC Police Station.

8. An inquest of the body of the victim was conducted and photographs of the body were taken. There were injuries. The vagina and the anus of the deceased victim was lacerated and blood was oozing out. On 23.1.2013, Dr. Bhushan Jain, assisted by Dr. Prerna Thakur, conducted post mortem examination of the deceased victim. Dr. Bhushan Jain also noticed injuries on the private part, anus, below the eye lid and above the upper lip. He collected the blood of the deceased victim for DNA mapping and grouping and also collected her vaginal and anal swab for detection of sperms. The samples were kept for chemical analysis. 4

12. The accused-appellant had been unemployed for four years, and sat idle at home. Omkar the grandson of the accused- appellant used to be at school from 12.00 noon to 6.00 p.m. All other family members of the accused-appellant used to leave for work during the day. The accused-appellant used to stay at home alone.

13. It is the case of the prosecution that on 22.01.2013, in the afternoon, the accused-appellant took the victim to his house, raped her, had unnatural sexual intercourse with her causing her head injury and smothering her, as a result of which she died. On the same night at around 2.00 a.m., the accused-appellant had gone outside the house and on 23.01.2013, the accused-appellant went to the house of his brother at Kamothe without informing his wife, Asha (PW 18). On 24.01.2013 at about 07.30 p.m., PW 18 i.e., wife of the accused-appellant found the accused-appellant was in tension and asked him to go to their family doctor.

15. It was the case of the prosecution that the accused-appellant used to force himself on his wife and have sexual intercourse with her without her consent two to four times a week. Furthermore, in 2004, when the accused-appellant and his family members were residing at Village Dudhanoli, the accused-appellant had outraged the modesty of a lady, Suvarna (PW 6) while she was attending to the call of nature. It is alleged that the accused-appellant was 6 assaulted by villagers because of the aforesaid incident. The accused-appellant and his entire family, therefore, had to leave Village Dudhanoli forever.

17. On 24.01.2013, PW 19 contacted the Head Constable, Gejage (PW 15) and told him that he suspected the accused-appellant of being guilty. Thereafter, on the night of 24.01.2013, the said Head Constable, Gejage, (PW 15) and Senior Police Inspector, Kambale took the accused-appellant to the office of Crime Branch for inquiry. On 25.01.2013, the accused-appellant was arrested and the clothes on his person, i.e, blue coloured full pants, Bermuda pants and a yellow shirt were seized under panchnama, which is marked Ex. (Exhibit) 28. On 25.01.2013, the Investigating Officer, Police Inspector, Bhong, being the 26th Prosecution Witness (PW 26), went to the house of the accused-appellant along with a team from Forensic Science Laboratory and searched the house in the presence of panchas, the Forensic Laboratory team and daughter of the accused-appellant, Nisha (PW 20).

18. Three cushion covers from the Sofa, a cloth for cleaning the floor and a sari used as a bed-sheet, all stained with blood, were seized. On 25.01.2013 itself, the accused-appellant was examined by Dr. Tambe (PW 8), who found that the accused-appellant was in 7 sound physical and mental condition. On 26.01.2013, the accused- appellant made a statement in the presence of Panchas on the basis of which which blood stained white coloured plastic gunny bag, blood stained orange coloured shirt and black pants of the deceased were recovered from the debris near Om Sai Building.

19. The complainant and his wife being the parents of the victim, identified her clothes. It is alleged that on 27.01.2013, Vinod and Sanjay being the 4th and 5th Prosecution Witnesses approached the Investigating Officer, Bhong (PW 26) and told him that on 22.01.2013, they had a meeting in the office of 10 th Prosecution Witness (PW 10), Parshuram, which was situated in a building about 15 feet away from Om Sai Building. These witnesses told the police that after they came out of the office at about 4.30 p.m they were standing under a parking shed and talking. At that time, they saw a short old man carrying a white bag coming from the side of the staircase and going into a lane. The man kept the bag in the lane which was in front of the parking shed.

22. The clothes of the accused-appellant, the white plastic bag, the clothes of the deceased, sealed bottle containing blood of the accused-appellant and his semen, hair and nail were sent to the Forensic Science Laboratory. The blood, hair, nail, vaginal swab and anal swab of the victim were also sent to the Forensic Science Laboratory. The reports received by the Investigating Officer, Bhong (PW 26) from the Forensic Science Laboratory showed that D.N.A. profile of blood detected on the plastic bag, orange shirt of the deceased and sari cum bed-sheet seized from the house of the accused-appellant was identical with D.N.A. profile of the deceased victim. The reports also showed that D.N.A. profile test of semen conducted on underwear (Bermuda pants) of the accused-appellant, and the vaginal swab and anal swab of the victim matched the D.N.A. profile of the accused-appellant.

24. The prosecution examined 27 witnesses. No witnesses were examined on behalf of the accused-appellant. Shorn of unnecessary details, the first prosecution witness, being the complainant (PW 1), deposed that when he returned home at around 3.20 a.m. on 23.1.2013, after frantically searching for his daughter, he found his daughter lying naked in front of the door of his house. She was still and there was no movement. He informed the police. The victim was taken to Navi Mumbai Corporation Hospital where she was declared dead. PW 1 described the injuries on the victim i.e. redness on both shoulders and both thighs. He said there was blood in the private part of the victim and there was a laceration in the vagina. The anus was swollen. He identified the complaint and stated that its contents were correct. PW-1 identified the following articles: -

28. The 4th Prosecution Witness (PW 4) who claims to run a construction business, stated that he had business dealings with persons residing at Koprigaon. On 22.1.2013 he had gone to meet 11 Parshuram Thakur at the Shiv Sena Office at Koprigaon. His friends Sanjay Govari and Devidas Dalavi, a resident of Airoli were also there at the office. This witness deposed that after coming out of the Shiv Sena Office, he, Sanjay Govari and Devidas Dalavi were standing below a shed in front of a building near the said Office. While they were standing below the shed, they saw an old man come from the side of the staircase, holding a white bag, which he kept in the lane which was in front of the parking shed. The old man was short and except for Bermuda pants that he had been wearing, he was bare bodied. According to this witness, he along with Devidas Dalavi and Sanjay Govari once again went to the office of Parshuram Thakur after a few days, when Parshuram Thakur told them about the rape and murder of a girl in a building in front of his office, which had taken place on 22.1.2013.

33. The 6th Prosecution Witness (PW 6), a teacher and a resident of Dudhanoli, Taluka Murbad, District Thane deposed that the accused-appellant had tried to outrage her modesty when she had gone to relieve herself in the open field in the year 1998 i.e. 13 about 15 years before the present incident. She said that she and her husband had beaten up the accused-appellant and that night, the accused-appellant left the village permanently. The aforesaid incident has no connection with the rape and murder of the victim. In cross examination she admitted that she had not lodged any complaint against the accused-appellant.

35. The 8th Prosecution Witness (PW 8) an Associate Professor in Terana Medical College, Surgery Department deposed that on 25 th January, 2013 he was on call duty at Navi Mumbai Municipal Corporation General Hospital. On that day he examined the accused-appellant who had been brought by the police. On examination, the accused-appellant appeared to be in sound physical and mental condition. On examination of private part that is genital, no external injury was found but “bilateral scrotal enlargement was seen”. Apart from that there was no external injury. Genital size was normal. There was no external deformity in 14 genital. Testicular reflex was normal. Penis was uncircumcised, Smegma was absent. There were no signs of sexually transmitted disease. There were no Injuries on glans penis.

39. This witness deposed that PW Nos. 4, 5 and an agent Dalavi, used to come to his office during the period between 19 th January, 2013 and 22nd January, 2013. On 22nd January, 2013, they had come to his office at around 2/2.30 P.M. and they were there in his office till 4.30 p.m.

40. This witness said that on 26th January, 2013 the aforesaid persons again came to his office for discussion in relation to a plot. While talking to them, this witness told them that on 22 nd January, 2013 there had been rape and murder of a five year old girl. The police were inspecting a bag. On hearing this, PWs 4 and 5 and Dalavi mentioned that they had seen a man who seemed frightened, drop a bag. This witness deposed that he had advised the aforesaid persons to go and inform the police. Thereafter, the three persons left.

43. The 11th Prosecution Witness (PW 11), Arvind Madhavji Gajara is the Panch in whose presence, the tenement of the accused-appellant was searched. He deposed that on 25 th January, 2013 he had gone to Koparigaon in connection with his business. He saw that many persons had gathered near the Om Sai building. It was about 5.00 p.m. The police constable Rane called this witness. At that time the accused-appellant, a photographer and a panch by the name of Patil were was also present. At the request of the police he agreed to act and acted as Panch. The police took him to room No.8 of Om Sai apartment. A police officer rang the bell at the door. It was opened by a lady, who said that her name was Nisha. The police officer told Nisha that they wanted to search the house and asked whether she had any objection. Nisha replied that she had no objection.

46. The 12th Prosecution Witness (PW 12), named Mustaqali Asgarali Ansari, a Carpenter by profession stated that on 26 th January, 2013, he went to fill petrol in his motor-cycle at a petrol pump near APMC police station at about 3.00 p.m. At that time, a police constable, by name Mandole, called him and told him to come to APMC Police Station. He went to the APMC police station along with the constable. In the police station, one police officer by name Bhong and another panch More, one lady police and three police constables were present. The accused-appellant, whom this witness identified in Court, was also present in the police station.

47. According to PW 12, in the police station, the accused appellant made a statement that he had kept the dead body of the girl in a bag and kept the said bag behind the staircase. 18

“2. On internal examination I noticed haemorrhage under scalp over occipital region 5 x 3 c.m. reddish and 19 meninges were congested. Brain matter congested and

53. This witness deposed that the injuries mentioned in column 17 of the postmortem report were possible by repeated sexual acts and forcible penetration of the penis in the vagina. The victim may have suffered some of the injuries while she was trying to rescue herself from the clutches of the culprit. The injuries referred to as injury Nos. 4 and 5 in the postmortem report may have been caused by the culprit by pressing the mouth of the victim with his hands. The injury described in the Report as injury No.4 may have been caused by finger nails.

63. The 18th Prosecution Witness (PW 18), Asha Dattatraya Rokade, wife of the accused-appellant said that she was residing in Room No.8 of Om Sai Building along with the accused-appellant, their two sons, two daughters and a grand son (son of younger daughter, whose husband had expired). She deposed that the accused-appellant was unemployed and stayed at home alone, while the other members of the family went out to work and the grand child went to school. She said that on 22 nd January, 2013 when she came back from work at around 7.30 p.m. she heard that the victim was missing. She had dinner at about 1.00 a.m. after all the family members returned, after which they went to sleep. She deposed that after 2.00 a.m., her husband went out of the house. On 23rd January, 2013 at about 7.00 a.m. police knocked at the door of the house and inquired about the victim. On 23 rd January, 2013 she left for work. When she left, her husband i.e., the accused- appellant and their daughter Nisha (PW 20) were at home but when she came back home at about 7.30 p.m. she did not find her husband. On inquiry, her daughter Nisha (PW 20) told her that the accused-appellant had gone to his brother’s house. She further 24 deposed that on 23rd January, 2013 she had dinner and went to sleep. On 24th January, 2013 when she went out to work her husband i.e. the accused-appellant came back. After returning at about 7.30 p.m., she made tea and served tea to the accused- appellant. While serving tea she asked the accused-appellant why he was tensed up. He replied that he was not feeling well. Thereafter she told him to go to hospital. The accused-appellant went to Dr. Nilima Pawar.

67. The 20th Prosecution Witness (PW 20), Nisha, daughter of the accused-appellant deposed that on 25th January, 2013, in the evening, police came to their house with experts from the Forensic Laboratory and a photographer. After taking her permission, the police seized sofa cover, cushion cover, bedsheet and duster cloth. The expert found blood stains in the gap between the tiles on the floor and on the sofa cover. The sofa cover, cushion cover and bedsheet were stained with blood. All these articles were seized and the police obtained her signature and the signature of her father. She identified the sofaset cover, cushion cover, bed sheet and the duster cloth for cleaning the floor. She also identified the 26 Bermudas of her father. She stated that when she was a young child she came to know that her father had caught the hand of a woman and therefore, the family had to leave the village Dudhanoli. In cross examination, this witness said that her father never spoke to her unnecessarily. She said that she cleans utensils and cleans floor on every alternate day. She said that she had not noticed anything abnormal on sofa, cushion or on the bed. Nothing significant has transpired from the evidence of this witness except that the tenement of the accused-appellant had been searched in the presence of forensic experts and a photographer. Photographs of the tenement were taken, some articles seized and samples of blood scrapings collected for examination.

75. The seized articles were cushion covers, a cloth for cleaning the floor, a saree used as a bed sheet which were sealed in six 29 packets. He deposed that experts from the Forensic Science Laboratory collected dried blood from the floor tiles beneath the sofa. The photographs of the sofa and other articles were taken at the time of recording the spot panchnama. PW-26 further stated that on 25th January, 2013 he got the accused-appellant medically examined and he also recorded the statements of witnesses. On 26th January, 2013 the accused-appellant offered in the presence of two panchas to show the place where he had put the clothes of the victim in a bag, which was the debris was by the side of staircase of the Om Sai Building. The statement of the accused-appellant was recorded by this witness. The statement so recorded was signed by Panchas and the accused-appellant affixed his thumb impression thereon. After that the accused-appellant took the Investigating Officer (PW 26) and others to the side of the staircase of the said building where debris were lying and he took out a plastic bag in which an orange shirt and black pants were found. The accused- appellant told the Investigating Officer that the shirt and the pants were the clothes of the victim. This witness deposed that the parents of the victim were called and they identified the clothes of the victim. There were blood stains on the shirt, pants and the plastic bag. The articles were seized and sealed in the presence of Panchas, whose signatures were obtained on the panchanama recorded on the spot.

78. As observed above, the oral evidence of PW-1 and PW-2 being the parents of the deceased victim do not even suggest culpability of the accused-appellant. The 3 rd Prosecution Witness only a Pancha who put her signatures on bag containing thread and clothes of the victim. The 4 th and the 5th Prosecution Witnesses have claimed that they had gone to visit Parshuram Thakur at the Shiv Sena Office at Koprigaon on the day of the incident. After they came out of the office, they were standing below a shed and talking, when they saw an old man come from the side of the staircase of the building, holding a white bag which he kept in the lane in front of the parking shed. These witnesses identified the 32 accused-appellant as the man carrying the bag. They also identified the bag as the bag which the accused-appellant had been carrying.

89. The Registrar was directed to send the records and proceedings of the case to the High Court for confirmation of the death sentence. The accused-appellant also filed an appeal against the conviction and sentence being Criminal Appeal No.1202 of 2013.

91. By a judgment and order dated 21st, 24th, 25th March, 2014, the Division Bench of Bombay High Court confirmed the conviction and sentence of death imposed under Section 302 of the Indian Penal Code on the accused-appellant. The appeal of the accused- appellant was partly allowed only to the extent that the conviction of the accused-appellant under Section 376 simplicitor was set aside. The State has not filed any appeal against the judgment and order of the Division Bench.

Firstly, the case must clearly fall within the ambit of “rarest of rare” and secondly, when the alternative option is unquestionably foreclosed. Bachan Singh suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose.

10) is extracted hereinbelow:-

15 R.P. (Crl) No. 306-307 of 2013

128. The PW-1, Dr. Bhusan Jain who had prepared the post mortem report opined that the cause of death was asphyxia due to smothering, associated with head injuries and sexual assault. Dr. Bhusan Jain deposed that all the 5 injuries were possible by repeated sexual acts and forceful penetration. He opined that all the injuries were sufficient to cause instant death in the ordinary course.

130. Considering the totality of the evidence before us, we uphold 54 the conviction of the accused-appellant. However, in view of the evidence of the post mortem report of Dr. Bhusan Jain, we deem it appropriate to modify the sentence by reducing the same to imprisonment for life.

144. Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. In this case, considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the appellant, we feel that the appellant should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him.

19 (2010) 3 SCC 508 58

145. For the above reasons, we are of the view that the present appeals are one of such cases where we would be justified in holding that confinement till natural life of the accused-appellant shall fulfil the requisite criteria of punishment considering the peculiar facts and circumstances of the present case. Accordingly, the death sentence awarded by the trial court is hereby modified to “life imprisonment” i.e., imprisonment for the natural life of the appellant herein. The appeals are allowed accordingly to the extent indicated above.