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Judgment in Spl.Sessions Case No.

14/2010

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Receivedon Registeredon Decidedon Duration

16/10/2010 22/10/2010 02/01/2012 Y.M.D. 010217

Exh.No.92 INTHECOURTOFTHEADDITIONALSESSIONS JUDGE,PUNE.ATPUNE (PresidedoverbyShri.S.D.Darne,) SpecialSessionsCaseNo.14/2010 StateofMaharashtra ThroughP.I.Vishrambagpolice Station,Pune. Vs. MohinirajYashwantKulkarni, Age:79years,Occupation:Retired, R/at:292,NarayanPeth,Pune.

.Complainant

..Accused.

302,376(2)(f),201,182r/w.34of 3(1) (xii)3(2)(v)3(2)(vi)oftheScheduled CasteandScheduledTribes (PreventionofAtrocities)Act,1989 Appearances: Shri.VikasShahAddl.PublicProsecutorforcomplainant. Shri.VirajKakade,advocatefortheaccused. IndianPenalCodeandU/s.3(1)(xi)

OffencepunishableunderSection

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JUDGMENT (Deliveredon31.12.2011) The accused is prosecuted in this case for the offence punishable under section 302, 376(2)(f), 201, 182 r/w.34 of theIndianPenalCodeand3(1)(xi)3(1)(xii)3(2)(v)3(2)(vi)ofthe Scheduled Caste and Scheduled Tribes ( Prevention of Atrocities)Act,1989.

2]

Prosecutioncase,inbrief,isthat

Theaccused,whosewifeissufferingfromparalysis,had keptthecomplainanttoattendherasshewasunabletolook afterherowndailypursuits.The complainant wasworking duringdayhours;whereas,duringnightanotherwomanby name Mangala Patil was there, but during her absence the complainantwasalsoworkinginhishouseduringnight.The accuseddevelopedillicitrelationswiththecomplainant.Her daughter aged about 10 years, used to accompany her whenever she used to come to the house of the accused to work there. The complainant was belonging to Maang community,whereas,theaccusedisofBrahmincaste.

3]On13.10.2009thecomplainantcametothehouseof accusedinthemorningwithherdaughter andonthatday

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thewomanonnightdutywasonleave.Hence,inthenight alsoshewasthere.Onthenextdayon14.10.2009atabout 12.10noonDr.Bharti,aphysiotherapist,whousedtocome dailytogettheexerciseofphysiotherapydonefromthewifeof theaccused,camethereandgotdonethatexerciseinthebed roomofthesaidoldlady.Whenthatexercisewasgoingon, accusedanddaughterofthecomplainantwere outsidethe room. The accused during that period had forcible sexual intercoursewiththesaidgirlandthenstrangulatedherand thus caused her death. After that he told that fact to the complainantandsayingthatsheshouldnotdisclosethatfact toanybodyasnobodywillbelieveherasheisanoldmanof 78 years of age and is financially sound, whereas, if their illicit relation became known to others her life would be spoiled andheassuredhertopayRs.50,000/and thento removetheevidenceheaskedthecomplainanttoremovethe clothesofherdaughterfromherpersonandalsotosweepthe floor to remove the blood stains with Dettol and cloth and thenhangedthebodyofthegirlwithascarftomakeashow thatthegirlhadhangedherselfandthereafterclothesonthe bodyofthegirl,theclothwithwhichthefloorwasswipedand cleanedwerekeptinthecarrybagandsamewerethereafter destroyed.Healsopressurized thecomplainanttogivefalse informationtothepolicetoconcealthecommissionofoffense.

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BodyofthesaidgirlwastakentoPoonaHospital,whereshe was declared dead. Later on when police came there the complainantgaveinformationtothepolicethatherdaughter wasfoundinanunconsciousconditionontheterraceofthe houseandsomeunknownpersonhascommittedrapeonher andthencausedherdeathbystrangulation.

4] Police thereafterremoved the dead body to Sassoon GeneralHospital,Pune whereinquestofthedeadbodywas prepared and at the request of police doctor performed autopsyofthedeadbody.Theautopsyrevealedcauseofdeath as asphyxia due to strangulation. Thereafter, during investigation police arrested this accused and complainant, motherofthesaidgirlinconnectionwiththesaidoffenceof rape and murder. After arrest during investigation the complainant confessed her guilt and her confessional statement was recorded by the judicial Magistrate at the request of the police, wherein she disclosed that accused committedrapeonherdaughterandthenmurderedherand she also helped him while causing death of her daughter becauseofthethreatshehadgiven. 5]Aftercompletionofinvestigationpolicefiledcharge sheet against this accused and the complaint, Rekha. Learned Magistrate committed the case to this Court. This

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Court tendered pardon to the complainant (accused No.2) U/s.307ofCr.P.C.ontheapplicationofthePublicProsecutor vide order dt.20.6.2010 and then after hearing the prosecution and defence, charge Ex.15 was framed against thisaccusedfortheoffencespunishableundersectionU/s. 302,376(2)(f),182&201 ofIndianPenalCodeandU/s.3(1) (xi), 3(1)(xii), 3(2)(v) and 3(2)(vi) of the Scheduled Caste and ScheduledTribes(PreventionofAtrocities)Act,1989.Same wasreadovertohiminMarathi,buthepleadednotguilty.His defence is that he is falsely implicated in this case by the Police because of the pressure of women organizations and politicalparties.

6] To prove the guilt, prosecution has examined ten witnesses,includingtheaccomplicei.e.thecomplainantand theInvestigatingOfficerandalsoproducedseveraldocuments onrecord.Defenceadducednoevidence.

7] Considering the facts brought on record, following points arise for my determination and I have recorded my findingsthereonforthereasonsasstatedbelow.

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POINTS:

FINDINGS:

1]Whethertheprosecutionhasproved thatdaughterofcomplainantdied homicidaldeath? ....

Yes.

2]Whethertheprosecutionhasproved thataccusedintentionallyorknowingly...Yes. Causedherdeath? 3]Whethertheprosecutionhasproved thattheaccusedcommittedrapeonher whowasafemaleagedabout10years belowtheageof12years?.....Yes 4]Whethertheprosecutionhasproved thatcausedtobedonecertain evidenceofthesaidoffencetodisappear towit,removedclothesofthedeceased andcleanedthebloodstainsonthefloor anddestroyedtheclothesofthesaid deceasedaswellastheclothesbywhich thebloodstainsonthefloorwerecleaned bygivinginstructionstotheapprover RekhaAnilRandiveaswellasbyhanging thedeadbodyofthedeceasedtoiron staircasebythescarfinordertocreate fakeevidenceofsuicidaldeathwiththe intentionofscreeninghimselffromlegal punishmentandintentionallygavefalse informationofthesaidoffencewhichhe kneworbelievedtobefalse? 5]Whethertheprosecutionhasproved thatontheaforesaiddate,timeandplace onthesayofaccusedtheapprover RekhaAnilRandiveintentionallyand

Yes.

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knowinglygavefalseinformationtothe policeofficer,apublicservant,thatthe murderofRohiniAnilRandivehad beencommittedbyunknownpersons thoughhehadknowledgethatithad beencommittedbyhimself,intending orknowingittobelikelythathewould therebycausesaidpoliceofficertocarry outinvestigationofsaidoffenceagainst unknownpersons?

No.

6]Whethertheprosecutionhasproved thattheaccused,notbeingamemberof ScheduledCasteorScheduledTribe, assaultedorusedforcetothedeceased,afemaleaged 10years,amemberbelongingtoScheduled CasteorScheduledTribe,withintentto dishonouroroutragehermodesty? No. 7]Whethertheprosecutionhasprovedthat theaccused,notbeingamemberof ScheduledCasteorScheduledTribe, beinginapositiontodominatethewill ofdeceasedgirl,belonging toScheduledCasteorScheduledTribe, withintenttodishonourandusedthat positiontoexploithersexuallytowhich shewouldnothaveotherwiseagreed? 8]Whethertheprosecutionhasproved thatontheaforesaiddate, theaccused,notbeingamemberof ScheduledCasteorScheduledTribe, committedrapeonthatgirlaged10years, amemberbelongingtoScheduled CasteorScheduledTribe,anoffence

No.

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U/s.376ofIndianPenalCodepunishable withimprisonmentforlife?

No.

9]Whethertheprosecutionhasproved thatontheaforesaiddate,theaccused notbeingamemberof ScheduledCasteorScheduledTribe, knowingorhavingreasontobelieve thatanoffenceofmurderandrapeon thedeceasedgirl,hasbeen committed,causedtobedonecertain evidenceofsaidoffencetodisappear towit,removedclothesofthedeceased andcleanedthebloodstainsonthefloor anddestroyedtheclothesofthesaid deceasedaswellastheclothesbywhich thebloodstainsonthefloorwerecleanedby givinginstructionstotheapproveraccused RekhaAnilRandiveaswellasbyhanging thedeadbodyofthedeceasedtoiron staircasebythescarfinordertocreate fakeevidenceofsuicidaldeathwiththe intentionofscreeninghimselffromlegal punishmentandintentionallygavefalse informationofthesaidoffencewhichhe kneworbelievedtobefalse? 10]Whatorder? REASONS

No.

Asperfinalorder.

8]Thewitnessesexaminedbythe prosecution arePW No.1 Rekha Anil Randive, the accomplice and mother of deceasedvictim,PWNo.2Dr.BhartiNandkumarGhadge,the physiotherapist,PWNo.3NamdevNarayanKunjir,thepancha

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witnessonpanchanamaofspotofsceneandseizureofsome ofthearticleslikechocolatewrapper,scarf,carpet,mattress, clothsoftheaccused,etc.PWNo.4RajendraPanditGaikwad, who recorded statement of Rekha Anil Randive, original accusedNo.2,seizureofcurtainandbottleofDettol,PWNo.5 Sunny Dharmendra Avale, a witness on the inquest of the dead body recorded at Sassoon General Hospital, Pune, PW No.6 Ambadas Narsu Raskar a witness on seizure of the clothes of the deceased. PW No.7 is Dr.Sachin Shivaji Sonawane, who performed autopsy on the dead body with Dr.B.M.Dhandeat SassoonGeneralHospital,Pune.PWNo.8 is Dr.Shrinath Chandramani, working in Trauma Unit in PoonaHospital,whodeclaredthesaidgirlasdead.PWNo.9 Motichand Dhiru Rathod is Police Inspector, who prepared panchanamaofspotofsceneandalsorecordedstatementsof someofthewitnessesandlateronarrestedtheaccusedand last witness, PW No.10 Ranjeet Dadasaheb Dhure is Dy.S.P. CumACP,whodidfurtherinvestigationandfiledchargesheet. 9]Someoftheimportantdocumentsadmittedorproved on record are: the alleged First Information Report Ex.24 whichisagainstunknownperson, panchanama ofspotEx. 34,Seizureoftheclothsoftheaccusedetc.Ex.35,inquestof thedeadbodyEx.45,Seizureofthefrock/skirtandnickerof

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the deceased girl Ex.47.PostmortemreportEx.61,Clinical examination of the dead body at Poona Hospital Ex.65, medicalexaminationoftheaccusedEx.67,theoftheDoctorof Poona Hospital in answer to the query of the police/Investigating Officer Ex,71. Forwarding letter of the police officerto the Director of Forensic Science Laboratory, BombayEx.76and77respectivelyandreportoftheForensic ScienceLaboratoriesEx.81,82and91.Thecalldetailreport madebytheaccusedandDr.HarsheEx.88and89.

10]AstoPointNo.1: Generally, on the question whether deceased died homicidaldeath,medicalevidenceandtheinquestofthedead bodyandiftheeyewitnessesarethere,theirocularevidence if any, would be relevant. Here in this case, autopsy was donebyPWNo.7Dr.Sonawaneonthenextday,whereas on the same day in the night inquest of the dead body was recorded.ThisPWNo.7,wasundisputedlyaLecturerinthe departmentofForensicMedicines, SassoonGeneralHospital, Pune to which the medical college is attached. According to him,hehimselfwithDr.B.M.Dhandeconductedpostmortem examinationofthedeadbodyofagirlinthemorningduring theperiod8a.m.To9a.m.on15.10.2009.Hestated,theface of the dead body was congested, conjunctiva was also

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congested, besides dried blood stains were present around thenoseandmouthandnailswerecynosed.Healsotestified that he found perennial tear to the right side of vagina, marginsthereofwerered,hymenwaslaceratedat60clock position,bloodwasoozingthroughvagina.Healsostatedthe externalinjurieslike,linearabrasiononleftcheek,belowthe lowerlidoflefteye,abrasiononposterioraspectofleftelbow, ligaturemarkonneck,encirclingtheneckatthyroidcartilage level5cmfromrightmastoid7cmfromchinand6cmfrom left mastoid, whereas on dissection, he found right strap musclehaematomaof2x2c.m.,peritrachealhaematomaon rightlateralaspectof2x2cm.Besides,linearabrasionon medialaspectofleftknee,linearabrasiononmedialaspectof left leg, linear abrasion on medial aspect of left leg in the middleandabrasiononbackinrightlumbarregionwerealso observed. According to him, all the abrasions and injury marks were wereantemortem in nature. The postmortem reporthepreparedatthattimeisprovedbyhim(Ex.61)and stated that the injuries mentioned in Col.No.13 were suggestive of asphyxia probably due to strangulation and abrasionswerebecauseofthestrugglebetweentwopersons. Accordingtohim, thescarfseizedduringinvestigationwhich was shown to him can cause ligature mark likethat he observedontheneckmentionedinCol.No.17asinjuryNo.3in

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hispostmortemreportandaccordingtohim,injuryNo.3was sufficienttocausedeath.

11]Theinquest,Ex.45,wasrecordedon14.10.2009i.e. onthedateofincident,butatnightinthe SassoonGeneral Hospital, Pune though body was initially taken to Poona Hospital where the girl was declared dead and information wasgivengiventoPoliceandithasalsocomeonrecordthat suchexercisewasdoneinthathospitalbutthatdocumentis notforthcomingonrecord.InthisdocumentEx.45i.e.inquest similarfacts,likeligaturemarkof11/2x17cmontheneck isstatedtohavebeenfoundbesidesotherabrasionsonthe otherpartsofthebodyandsevereinjurytothevagina.Itis stated, the girl's mother, who had lodged the report against unknownperson,waspresentthere.

12] The learned counsel for the accused vehemently submittedthatafter1p.m.bodywastakentoPoonaHospital by the mother of the girl and this accused and PW No.8 Dr.Shrinath Chandramani had examined her, but astonishinglyhedidnotnoticeanyoftheinjuriesmentioned intheinquestandinthepostmortemreport. Hesubmitted that,atleasthecouldhavenoticedtheinjuriesonthefaceor theneckorexposedpartoftheleg,iftheywerereallypresent

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there.Thus,accordingtohim,thereisreasontobelievethose injuries were not there when body was taken to Poona Hospitalwheregirlwasdeclared deadandtheymighthave been caused subsequently when the body was taken to Sassoon General Hospital, as there is considerable gap of severalhoursbetweenlastexaminationatPoonaHospitaland the inquest in Sassoon General Hospital, Pune. Further, he submitted it came on record that in Poona Hospital itself whenpolicecametheinquestofthedeadbodywasrecorded but that document is suppressed, hence, adverse inference shouldbedrawnagainsttheprosecutionforthereasonthat haditbeenonrecorditwouldhavefalsifiedthecaseofthe prosecution, at least about the existence of those injuries. Further,hesubmitted,thedoctorwhoperformedpostmortem didnotrecordinjuriestolibiamajoraandlibiaminorfurther PWNo.7Dr.Sonawanewasnotsureastothecauseofdeath whetheritwasaresultofstrangulationorotherwise,hence, heusedtheword,'probablystrangulation.Itisalsosubmitted beforemethatthisPWNo.7hasnotspecificallystatedabout hisexperienceinthatfieldastohowmanyoperationshedid, howmanypostmortemhehasconducted,consequently he cannotbetakentobeapersonhavingadequatequalification togiveopinionasanexpert.

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13] No doubt in such cases when some medical personnel is examined and especially when his opinion is relevant,hiseducationalqualification,experienceinthefield shouldbebroughtonrecordtocallhimasanexpertinthe fieldasperSec.45oftheEvidenceAct.InthiscaseAdditional Public Prosecutor made no attempt to bring these facts on record.However,whenPWNo.7 wascalledasawitness it cameonrecordthatDr.SonawanewasworkingasanAsstt. ProfessorinNayarHospital,Mumbaiandattherelevanttime he was a Lecturer in Forensic Medicines Department of Sassoon General Hospital, Pune. Forensic Medicines is a specializedbranchofmedicalscienceanditcanbetakenas notoriousfactthataLecturerworkinginthatdepartmentofa Medical College as a teacher must have the required qualification in the field and the experience. He being a teacherinthespecializedbranchofForensicMedicines,which dealsinMedicoLegalCasesandsuchaspectstheCourtsare required to deal with he must have required experience. Hence,certainlythisPWNo.7canbetermedtobeanexpert in that field. It can also be noted that when he has given evidence,asstatedabove,waspostedasanAsstt.Professorin NayarHospital,Bombay.Thus, despitethefactthatthereis somelapsesonthepartoftheAdditionalPublicProsecutorin notbringing necessary factsonrecordthey indirectlycame

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intheevidence.Hence,evidencegivenbythiswitnesscannot bedisregarded,sayingthatitisnottheexpert'sevidence.

14]Itisalsotruethattheinquestistoberecordedat theearliestwhenthedeadbodyisfoundordeathisreported and that is the requirement of Sec.174 of Cr.P whenever .C. there is a suspicious death of anybody. No explanation is forthcomingonrecordastowhythereissuchdelay.Further there is reason to believe that earlier there was inquest prepared by some other police officer at Poona hospital but that is not produced on record and what is there is a subsequent inquest recorded before midnight on the same day. It is further contended by the learned counsel for the defence that the officer who recorded the inquest is not examinedasawitnesstoexplaintheinactiononthepartof thepolice.Thus, itissubmittedthatwhenearlieratabout 1.30p.m.P.W.No.8Dr.Chandramanifoundnoinjuriesonthe exposedpartsofthebody,howitcouldbebelievedthatthere wouldbeseveralinjuriesonherpersonwhenexaminedafter several hours at Sassoon General Hospital, and later on duringpostmortemexaminationonthenextdaymorning.He submitted that, those injuries must be the post mortem injuries caused during that intervening period, when body waslyingunattendedforseveralhoursandperhapsatthe

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instanceofpoliceofficerorPSIJagtap,whowithoutanybasis hadformedanopinionthatitwashomicidaldeathandthere was rape, got favourable opinion of the doctor in his post mortemreport,soalsothedescriptionoftheinjuryNo.3in Col.No.17 of the pm report for that purpose. Thus, he submittedthat, itisatampereddocumentorfalseevidence isfabricated. 15] No doubt the First Information Report was registered at 0.45 p.m. on 15.10.2009 i.e. almost after 12 hoursafterthegirlwasdeclareddeadbythedoctoratPoona HospitalanditissubmittedthatattheinstanceofPSIJagtap thecomplainantwasmadetolodgesuchreportashetoldthe complainant, thattherapewascommittedonherdaughter, thoughtillthentherewasnoopinionofanycompetentdoctor aspostmortemwasconductedonthenextday.Further, He submitted in advance report there is no opinion about the alleged rape or any injury of such nature, still offence was registeredunderboththepenalprovisionsi.e.302&376by PSIJagtap,butastonishinglyheisnotexaminedthoughcited asawitness. 16] Nodoubt,thereappearssomelapsesonthe

part of the police officer. The inquest and the statement immediatelyrecordedinPoonaHospitalarenotproducedon record and PW No.8 Dr.Chandramani has stated that he

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foundnoinjuryonthebodyofthegirlwhenshewasbrought there.Asperthe evidence onrecord,asIhavestatedearlier, bodywasbroughtbythecomplainantmotherofthedeceased girlandthisaccusedtoPoonaHospitalaround1.30p.m.and PWNo.8Dr.Chandramaniexaminedherasapatient.ThisPW No.8 Dr.Chandramani has stated that he obtained history fromthemotheranduncle,meansthisaccusedandhewas informed that girl was found unconscious on the terrace, hence,hehadrecordedhistoryandthenexaminedthatgirl andfoundtherewasno spontaneous breathing and after examination he declared the patient as brought dead. That means, according to him, that girl was already dead when broughttothehospital.Italsocameonrecordintheevidence that the Investigating Officer Motichand Dhiru Rathod had madequerytohimonwhichherepliedbyEx.66,statingthat hedidnotnoteapparentstrangulationmarkonthebodyand furtherhedidnotdisturbtheclothes,asitwasmedicolegal case,and,therefore,hecouldnotnoteinjuresontheprivate part,whichwerenotexposedandtherewerenobloodstains or obvious history of the injures. It is also stated that, he simplydidCardioPulmonaryResuscitation(CPR)perhapsto revive the patient, but as there was no cardiac activity, or breathingsigns,CPRwasdisconnectedandshewasdeclared dead.

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17]PWNo.8Dr.Chandramanihasfurtherclarifiedinthe examinationinchiefitselfthat,whenthepatientwasbrought tothehospital,inviewofthehistorygivenbythemotherof thepatient,hedidnotseeexternalinjuriesorhedidnotverify whether there was any strangulation mark or even examine theprivatepartofthegirl.Inthecrossexaminationalsohe madefurtherclearthathedidnominuteexaminationofthe patient. The gross examination he did was for the purpose whypulse/BPwasnotrecordableandwhytherewasabsence ofrespirationandnottoascertainthecauseofdeath.Evenit is brought during cross examination that there was some liquidflowingoutfromthemouthandnoseofthe deceased thatliquidwasodourless.Perhapshereistheexplanationof this medical personnel as to why in Ex.66 there is no referenceastomarkofstrangulationorligaturemark.

18] Further it is brought on record during cross examinationofPWNo.7referringtothetextbookofmedical jurisprudence by Dr.Modi (22nd Edition) that no inference should be drawn simply from a ligature mark, for it may be indistinctorabsent,ifsoftligaturelikesilkisusedandmaybe producedbytheapplicationofligaturetotheneckevenafter death.Ifthedeadbodyisdecomposedthenfoldoftheneckcan be looked like a ligature mark. Further this witness has

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admittedthesuggestionthat,unlessdissectionofneckreveals antemortemevidenceofviolenceintheunderlyingtissues,no importanceshouldbeattachedtomerefindingofappearance, whichcouldbeonlypostmortemdecompositionchanges.

19]Inthiscasenotmerelyintheinquestthemarkof ligature was found around the neck but also during post mortem when those two medical Officers had examined the bodyexternallyandafterdesectionasitmentionedinCol.No. 17ofpostmortemreportEx.61theyfoundrightstrapmuscle haematomaof2x2cm.andperiteachealhaematomaonright lateralaspectofthesimilarsizeandthatinjury,accordingto PWNo.7,wasantemorteminjury.Asperthisobservationof PWNo.7therewasbleedingintherightstrapmuscleandin peritracheal area means around the tracheal rings. While answering the suggestion, PW No.7 again said that in such casestherewouldbedamagetoskinunderneaththeligature soalso totheunderlyingneckstructure thustheremaybe fractureoflaryngealcartilagesandtrachealringsbutclarified that it is less common in children. If the evidence of this witnessisreadasawholealongwithpostmortemreportit becameclearthattherewasdamagetotheunderlyingtissues ormusclesofneckandresultanthaematomawasthere.He alsorecordedtheexternalsignsoftheasphyxiathattheface

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andconjunctivawerecongested,nailswerecynosedandalso founddriedbloodstainsaroundthenoseandmouth.During crossexaminationalsoheclarifiedthatthosearethefeatures ofasphyxialdeath. 20]Theligatureusedwasshowntothewitness.Itis softpieceofclothanditisalsobroughtonrecordthatsome time the ligature mark may be indistinct or absent. It is possible that at the time soon after death when PW No.8 Dr.Chandramani examined the girl might not have observed thatmarkmaybebecausetheymaybeatthattimeindistinct or notnoticeablebutlatertheymighthavebecomedistinct wheninquest(Ex.45)wasrecordedafterseveralhours.Hence, fromthefactsonrecorditcannotbesaidthatthosecouldthe postmorteminjuriesbutpolicemanipulatedthesaidreportto fabricatefalseevidencewiththehelpofthisPWNo.7,whoisa Lecturer in Forensic Medicines department of BJ Medical College, Pune. In advance P.M. report cause of death is as showninEx.61i.e.detailedpostmortemreporti.e.becauseof asphyxia due to strangulation. It can not be believed at all thatinjuryNo.3statedinCol.No.17inpostmortemreportEx. 61wasinsertedattheinstanceofpoliceInspectorlateronas arguedbeforeme.Onlybecausetheinquestevenifrecorded inPoonaHospitalbysomeotherpoliceofficerisnotproduced on record that will not make the prosecution case wholly

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doubtfulasthereisotherevidenceonrecordfromwhichclear inferencecanbedrawnthatitwasasphyxialdeathbecauseof strangulation.Bynonproduction of the document inference canbedrawnthattheremaynotbesuchexternalinjurieson thebodyofthegirlaswerenotedsubsequently.

21] In Shivaji Bobade & another Vs. State of Maharashtra AIR 1973 S.C. 2622(1) the Hon'ble Apex Court remindedtheJudgesthatCourtmustnotabandona scientificattitudetomedicalscienceifitisnottobeguiltyof judicialsuperstition. 22] Thus, when the question of appreciation or understanding of medical evidence comes that should be answeredwithscientificattitudeandforthatcourtcanrefer totheTreatiesonthesubject.

23]Inthiscasethereisoralevidenceofthecomplainant PW No.1 Rekha Randive. Of course on this issue that evidenceisoflittlesignificancebutitcanbeconsideredwith the aforesaidevidence discussedabove. Wemay findmany errorsorlapsesonthepoliceofficersdoinginvestigationofthe case, but we should not swayed away by such lapses or errors they committed, but inference is to be drawn from whateverfactsbroughtonrecordasanevidenceormatteron

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recordandfindoutwhatfacts havebeenproved,keepingin mindthedefinitionofprovedgiveninSec.3 oftheEvidence Act.Nodoubtincriminalmatterstheproofshouldbebeyond reasonable doubt but not beyond doubt. Seldom, one can bring on record the facts to prove anything beyond doubt. RatherIwouldsaynofactcanbeprovedabsolutely.Hence, withthehelpofthefactsormaterialonrecordfindingcanbe recorded that deceased died homicidal death i.e. it was asphyxial death because of the strangulation. Hence, I answerpointNo.1intheaffirmative.

24]AstoPointsNo.2&3: Theevidenceoftheprosecution,thataccusedcommitted rape and caused death of a minor girl and those facts are interlinkedhence boththesepointsaretakenfordiscussion together. I have already considered the medical evidence as regard the cause of death that it was asphyxial death, resultingfromstrangulation.Themedicalevidenceasregards allegedrapeisofthesamewitnessPWNo.7Dr.Sonawane.He stated that, when he examined the dead body, along with Dr.Dhande,hefoundinjuryofperinealteartotherightside ofvagina,marginswerereddish.Furtherhestatedhymenwas laceratedat60clockpositionandmarginsthereofwerealso reddishandtherewasbleedingthroughvagina.Further,he

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testifiedthathenoticedtheinjuriesNo.1to7mentionedin post mortem report Ex.61 and all those injuries were antemortem in nature. He then opined that the injuries he mentioned in Col.15 of post mortem report Ex.61 were suggestiveofpenetrativesexualintercourseandinjuriesNo.1, 2,4to7mentionedinCol.No.17arepossibleduetostruggle betweentwopersons,hemeantosaybetweenthevictimand theassailant.

25]Evidencegivenbythiswitness is consistentwith postmortemreportEx.61,exceptthatasheadmittedthatin thepostmortemreportEx.61hedidnotspecificallyclarified whetherinjuriesmentionedinCol.No.15arealsoantemorem injuries. However nothing is brought on record in the cross examination that those injuries to the private part i.e. penerial tea laceration of hymen and the abrasion were postmortem.Thiswitnesswasextensivelycrossexaminedby thedefencecounselonallthoseaspects,puttingtohimthe opinionofauthor of varioustreatiseon ForensicScience, authored by Mr.Modi, Mr.Parekh, Tailor etc. However, this witnessfirmlywithstoodcrossexamination.Onthecontrary, whatcameduringthecrossexaminationfortifiedtheopinion hehasgiveninexaminationinchief. 26] A question was raised how there could a bleeding

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throughvaginaalmost20hoursafterthedeath.Saidwitness agreed with the suggestion made to him that even after petrificationthefemalegenitalsappearswollenandmayleak blood tinged fluid and such changes may be mistaken as showing features of sexual assault and, therefore, these observationsnotedbythiswitnessthatbloodwasoozingfrom the vagina can not be considered as doubtful one. Further only on that basis he did not opine that there was sexual assault.Hehadnotedperinealtearandlacerationofhymenat 60'clockposition.Further,healsoagreedwiththesuggestion put to him that the stretching or splits injuries can occur whenlegsareviolentlyabductedsuchasifthechildslipsona slippery surface and in that such cases a tear can be produced which can involve the skin of the perineum, the perinealbodyandthehymen.Withthehelpofthisandother facts on record it is vehemently submitted by the learned counselfortheaccusedthatwhentherewerenoinjuriesto theprivatepartandotherpartsofthebodywhenthedead bodywasfirstexaminedatthePoonaHospital,theseinjuries described by the doctor at Sassoon General Hospital, Pune could have been caused when the body was carried to Sassoon General Hospital, and kept there unattended for several hours. Even such suggestion was also put to the witnessthatthoseinjurieswerecausedtothedeceasedwhile

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bringingthedeadbodytotheSassoonGeneralHospital,Pune and he flatlydenied thatsuggestion. Further,whenthe girl was dead, there was no possibility that those injuries were causedbecauseoftheviolentabductionoflegsbecauseofthe sliponaslipperysurface.Further,itisnotthecontentionor even a suggestion of the learned counsel for the accused during trial that those injuries were caused in the hospital whenitwasbeinghandledbythepoliceofficerorotherperson orratherdeliberately.ItisarguedbeforemethatPSIJagtap, who carried the inquest in Sassoon Hospital and also informed the complainant that her daughter was raped and murdered and was made to lodge report, that too, without havinganyexpert'sopinionasifhewasanexpertandfurther, said police officer is not examined. However nothing is broughtonrecordtosubstantiatethatcontentionortomake theCourttobelievethatatthatstageonthatdaysaidpolice officer hadanyplantoregisterthecaseU/s.302and376of Indian Penal Code against this accused when at that time nobodywasknowingwhocouldhavecommittedthatoffence andthereisnoreasontobelievethathehadanymotiveat that stage to cook up such story or fabricate such false evidence and also get the medical opinion of like nature consistent to inquest report he prepared. Even nothing is brought on record that said PSI Jagtap had any motive to

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book the accused in future when later on he was not in pictureatalleitherasanInvestigatingOfficerorotherwise.

27]TheinquestofthedeadbodyisonrecordatEx.45. ThisdocumentisprovedbyPWNo.5SunnyAwalestatingthat on 14.10.2009 at the Dead House of Sassoon General Hospital,Punehesawanakeddeadbodyofasmallgirl,aged about10yearsandtherewasabrasiononhercheek,neck, lefthand,leftleg,onthebacketc.andbloodwasoozingout fromtheprivatepart.Intheinquestbesidestheabrasionson thebodyitisalsonotedthattheprivatepartwastorn.No doubtthiswitnessfumbledduringcrossexaminationsaying thatpolicetoldhimtocometothepolicestationnextdayand on the next day morning he went to the police station. However the public prosecutor sought permission to reexaminethewitnessandduringreexaminationheclarified thatdaybeforepolicehadcalledhiminthepolicestationto tell him that he is required to attend the Court for giving evidence.Hethenaddedthatpanchanamaofthedeadbody was prepared in his presence in Sassoon General Hospital, Puneand flatlydeniedthesuggestiongiventohimthathe didnotseethedeadbodyandtheinjuriesoverit.

28] No doubt, as I have stated earlier, the doctor who

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examinedthedeadbodyatPoonaHospital,statedthathedid notobserveinjuriesontheexposedpartsofthebodyandthe alleged inquest made in the Poona Hospital is not forth comingonrecordbutwhilediscussinghereinbeforeitcanbe saidthatashistoryofanykindofassaultwasnotgivenand motherofthegirlandtheallegeduncle(i.e.presentaccused) disclosed that the body was found in an unconscious conditionontheterraceaccordingtothedoctorhemadean attempttorevivethegirlandafterthatunsuccessfulattempt hedeclaredthegirltobedead.

29]Itisalsostatedthattherewereclothesonherbody andthoseclotheswerekeptintact.Itisvehementlysubmitted bythelearnedcounselfortheaccusedthat,accordingtothe doctor,therewasapantonthebodyofthegirlbutwhatwas seizedfromtheSassoonGeneralHospital,Puneasclothesof thegirlweredifferent i.e.skirt,blouseetc.andfurtherthe doctor found no clothes on the body at the time of post mortem andthereisnothingonrecordastowhoremoved thoseclothesandshowntohaveseized.However,thislacuna ornonexplanationtowhathappenedtothoseclothes,evenif notgivenwillnotmakethecaseoftheprosecutiondoubtful aboutexistanceoftheinjuriesonthepersonofthegirl.Had thoseinjurieswerethepostmorteminjuries,therewouldhave

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different features thereof and certainly the two medical officers,oneofthemisPWNo.7,Dr.SonawaneisaLecturerin ForensicMedicinesdepartmentof SassoonGeneralHospital, Pune,wouldnothavedescribedthoseinjuriesasantemortem injuries.Fromthedescriptionoftheinjuriesgiveninthepost mortem report Ex.61 also they can be termed to be antemortem.Unlesssomespecialfactsbroughtonrecorditis certainly improper to make submission that the medical evidencebroughtonrecordbythisPWNO.7isfabricatedoris falseevidence.

30] Now so far the ocular evidence is concerned, the main and important witness from the prosecution point of viewisPWNo.1,Rekhathemotherofthevictim,whowasin the beginning arraigned as accused No.2 by the police and priortothatherconfessionU/s.164ofCr.P.C.wasrecorded bytheSpecialJudicialMagistrate. Muchafterthecasewas committed and just before framing of charge, this Court tenderedpardontoherU/s.307 ofCr.P.C.,ofcourseonthe applicationofthe AdditionalPublicProsecutorinchargeof thiscase.Thussheisnowanapprover.Admittedly,shewas working as an attendant in the house of the accused since morethanayearbeforetheincident. 31]Shetestifiedthat,shewasemployedbytheaccused

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tolookafterhiswifewhowasparalyticpatientandherjob wastotakecareofthatoldwoman,togivehermeal,gether exercise done etc. and the accused agreed to give her Rs. 3000/ p.m. as salary. According to her, her working hours were8a.m.to7.30p.m.Shefurtherstatedthat,accusedused tomakeinquiryaboutherpersonalaffairsandlifeandslowly he was making sexual advance towards her and by his conduct he was showing lascivious attitude. Further accordingtoher,priortoDiwaliaccusedhadaskedhertodo nightduty,sayingthathewouldpayseparateremuneration forthenightdutyandsheconsentedforthat.Shethenstated that,duringnighthoursshegavemealtothewifeofaccused andtookhertobedandwhenshesleptnearherbed,accused camethereandhadforciblesexualintercoursewithherand warnedhernottodisclosethatfacttoanybodyandhealso increasedhersalarybyRs.500/.Hence,shedidnotdisclose that incident to her mother or anybody else and thereafter, accusedusedtohavesexualintercoursewithher.She also stated,aftersomeperiodhersalarywasagainincreasedtoRs. 4000/p.m.andasavingsaccountinthePostOfficewasalso openedbytheaccusedinhername.Thenshehasstatedthat, her daughter aged about 10 years used to come with her occasionally,onthedayofholidayandaccusedusedtogive herbiscuitsandchocolatesand 15daysbeforeDiwaliwhen

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herdaughterhadcomewithher,theaccusedhadtakenher on the upper floor on the pretext of giving biscuits, chocolates,hehadtouchedherbreastandkissedherandshe haddisclosedthatfacttohermother.Accordingtoher,atthat time her mother had come to the house of accused and questionedhimaboutthatincidentbuttheaccuseddeniedto havedoneanysuchindecentact,sayingthatthesaidgirlis just like his grand daughter and he was angry with her mother and droveher out of the house castigatingher. She then stated that, at the time of next Diwali again accused askedherwhethershewoulddothenightdutyinplaceofthe ladywhowasworkinginthenightandaccordinglyon13thOct atthetimeofDiwalishewenttothehouseofaccusedalong with her daughter, gave meal to her and then she and her daughterwenttobedandtheybothsleptonthegroundinthe roomofwifeofaccused.Shethenstatedthat,aftermidnight accused again came in that room and gave call to her and despite she told that she was in menses, he had sexual intercoursewithher,usingcondom,butasshepushedhim away during intercourse, he remain unsatisfied. Next day morning she observed that the accused was looking at her with evil eyes as if he was not satisfied with the sexual intercourse . Later on accused received a phone call of Physiotherapist PW No.2 Dr.Bharti. thereupon accused

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informedherthatshewouldbecoming withinhalfanhour. Thereafter, accusedwenttotheroomofhiswifeandsawher urine bag and while he was doing that exercise, the Physiotherapistcamethereandherdaughteralsofollowedher and asked the PW No.2 Dr.Bharti whether she bought crackersforDiwalibutsherepliedinthenegativeandthen askedtheaccusedtoallowhertogivetreatmentandexercise tohiswife.Hence,accusedwentoutoftheroom.Atthattime the daughter of PW No.1 was in the room itself and the physiotherapistaskedhertoplaysomesongsonmobilephone andstartedexercise. ShefurtherstatedthatPhysiotherapist observedswollenkneeofthewifeofaccusedandshowedthat to the accused. At that juncture accused asked Rohini, the daughterofPWNo.1togooutsideandplayandDr.Bhartitold hertolowerdownthevoiceofsongs. Shethenadded,that after completion of the exercise Dr.Bharti went away taking thewifeoftheaccusedtotheswing.ThisPWNo.1thenstated that,duringthatperiodaccusedwas intheadjoiningroom andwhenhecameout,hewashavingsweatandwascleaning itbyhandkerchiefandaskedhimwhetherDr.Bhartileftthe house and at that time he gave call to the physiotherapist throughwindowandaskedhertocometomorrow.Shefurther statedthattheaccusedaskedhertobringtiffinfromSuman Sanas,hence,shewenttodownstairstobringtiffinandalso

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metDr.Bhartithenandaftersometimebroughtthetiffinfor theaccusedandhiswifeandfoundthataccusedwasinthe kitchen. Hence, she asked him where her daughter is, on whichherepliedthatRohinisleptonuppersidei.e.terrace. Shethereafterwenttotheterraceandsawthatherdaughter near the door of the third floor in sleeping condition and thoughshetriedtoawakeher,shedidnotwakeupandshe foundthatshewasbreathlessandatthattimeaccusedalso camethereandsheaskedhimastowhyherdaughterwasnot talkingandhetoldthathecommittedrapeonherbutshedid notunderstandandaskedhimwhathemeantbythe rape. Shethenstatedthattheclothesofherdaughterwerestained withbloodand,accusedtoldherthattheywouldcarryherto thehospitalandtheaccusedbroughthandglovesandtold hertowearandchangetheclothesofherdaughter.Hence, accordinglyshechangedtheclothes.Atthattimeshefound that the private part of her daughter was torn. She then statedthat,accusedaskedhertokeeptheremovedclothesof herdaughterinacarrybagandtocleanthebloodfromthe floor with the help of dettol and washing powder. Further accordingtoher,theaccusedwenttotheterraceandbrought ascarffromtheterraceandtiedittoanironstaircaseand thengotdownfromtheterraceandtoldthatherdaughteris deadandwarnedthatifhisrelationwithheraredisclosedto

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the world, no body would believe her that he could have committedrapeonher as hewasaged79yearswhereas herlifewouldberuined.Thus,hewarnednottodiscloseany facttoanybodysayingthathewouldpayherRs.50,000/and heisabletodo anythingwiththestrengthofmoneybeing richman.Further,accordingtoheratthattimeinthecorner oftheroomacurtainwaslyingandtherewascondomwhich wasstainedwithblood.Hefurthertoldhertoputthatcurtain andcondomincarrybagetcandaskedhertocleanthefloor withdettolandwashingpowderandpieceofclothandthen thosehandglovesandpieceofclothwerealsoputincarry bagandthatcarrybagwasthenkeptinanotherbluecolour carrybagandhewenttoaroomonthegroundfloordirecting hertobringherdaughterdownandthentheykeptthebodyof herdaughteronacotofhiswifeandbroughtwatertogiveto the girl but it did not pass through her mouth. Further, Accordingtoher,shealsotriedtogivegheeandsugartoher daughter but it also did not pass. Accused then made a phone call to Dr.Harshe on phone and told him that her daughterfallenonterraceandsheisnottalking.Dr.Harshe askedthemtotakethegirlto thePoonahospital.Further, Accordingtoher, atthattimeitselfaccusedmadeacontact withherbrotherSandip,statingthathisnieceisrestlessand also talked with her mother on phone, that her grand

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daughterfelldownontheterraceduetofaintinganddirected hertocometoPoonaHospitaltoseeher.Shefurtheradded, accused wentdown on the pretextof takingoutthe vehicle and at that time she saw that he was carrying the blue colouredbagandheputitinthedickeyofthevehicleandat that juncture the brotherof accused Suresh Kulkarni came thereandheaskedhertobringherdaughterdown.Hence, shebroughtherdaughteronthegroundfloorandthenthey tookhertoPoonaHospital inacardrivenbythe accused. Accordingtoher,whentheyreachedPoonaHospitalandtook herdaughtertothedoctor,shewasaskedtositoutsideand after15minutesdoctorcameoutandtoldthatherdaughter isdead.Shethenstatedthat,atthattimeaccusedreceiveda phonecallfromDr.Harsheandaccusedtalkedwithhimand saiddoctortoldhimtokeepthebodyofthegirloniceand accordinglythatwasdoneandlittleafteraccusedcameout andtoldherthat heisgoingtohishouseandgaveher as well as to her mother Rs.1000/. She further stated that, thereafter, she herself and her mother went to Sassoon GeneralHospital,Pune where policemadeinquiryfromher andshetoldtothepolicethatherdaughterwaslyingonthe terrace and she was not knowing what had happened but police told her that rape was committed on her daughter thenpoliceaskedherwhocouldhavecommittedthatact,but

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According to her, due to threats of the accused and his pressure, she did not disclose the real fact to the police thoughthey wererepeatedlyaskingherand shedisclosed thosefactstothepoliceInspectorRathodafterherarrest.She has stated that initially she had lodged report like Ex.24 againstunknownperson,butthatwas donebecauseofthe pressureoftheaccused.

32]Dr.BhartiGhadge,thephysiotherapist,isexamined asPWNo.2.Outofseveralfacts,shestatedtherelevantare that, as usual when she went to the house of accused on 14.10.2009 to give treatment to his wife, she saw a swollen kneeandbecauseofthat accused scoldedPWNo.1Rekha, objectingthepresenceofherdaughterintheroomwhenthe patientwasexposedandheaskedPWNo.1tosendheraway. Hence,thePWNo.1askedherdaughtertogoawayandthen accused also followed her and she continued her treatment and after the treatment by 12.30 hrs. she took wife of the accusedtoahallandshewashedherhandsandatthattime she saw that accused was on the chair of the dining table. According to her, usually accused used to drop her on the groundfloor,butonthatdayhedidnotcomethoughthrough windowheaskedherwhenshewouldcometomorrowandshe told him that she would inform him on phone. Further

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Accordingtoherwhensheopenedthedoorofthestaircaseto go out and closed it, there was big noise as usual and generallythegirlofPWNo.1usedtosayGoodbyetoherwhen she was leaving but on that day she was not there to say goodbyeandshesawawrapperofcondombelowtheroomof thepatient.Shefurtherstatedthat,onthenextdaymorning whenshemadeaphonecalltothehouseofaccused,itwas pickedupbyastrangerat11.40a.m.andwhenshewentto hishouse,shefoundthattherewasheavyrushandRekha wasalsothereandoninquiryshetoldherthatherdaughter hasbeendiedandwhenshewentinsidethehouseandasked theaccusedastowhypolice camethere accusedtoldher thatthechildrenaredyingduetosuffocationandheatstroke andsamethingmighthavebeenhappenedwiththedaughter ofRekha,andonthatdayshedidnotdoanyexerciseofhis wifeastherewasnobodytohelpher.

33] Thus, the case of prosecution is based upon the evidenceofPWNo.1,themotherofthegirl,whoisapproveror accomplice of the accused. The learned Additional Public Prosecutor submitted that this main witness is worth reliable,thoughsheisapproverandwaswiththeaccusedand even there is extra judicial confession of the accused, who admittedtohavecommittedrapeonherdaughterandthatis

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alsoadmissibleinevidenceandthereisnoreasontobelieve thatthisPWNo.1,whoiswoman,wouldcastigateherselfand would give false evidence against the accused. Further he submitted,thedeathandrapeoccurredinsidethehouseof the accused and there is reason to believe that during that period no outsider had entered the house and this accused was the only male member at that time in the house and considering his past conduct, lascivious attitude, it can be inferred that he himself and nobody else committed that offence andonlybecausePWNo.8,maybeforwantofthe historygivenorswayedawaybythestatementoftheaccused, took no pain to record the injuries on the person of the deceased,theprosecutioncasecannotbethrownout.

34] As against this, learned counsel for the accused submitted that PW No.1 being the accomplice and her evidenceisadmissibleorsheiscompetentwitnessU/s.133of theEvidenceAct,thereispresumptionU/s.114(b)ofthesaid Actthatsheisunworthyofcreditunlesssheiscorroborated inmaterialparticulars. Herelieduponfollowingjudgments onthecredibilityofapprover'sevidence: (1)TrimukhM.KirkanVs.StateofMaharashtra 2006ALLMR(Cri)3510(SC); (2)ManoharK.KhandateVs.StateofMaharashtra

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2011ALLMR(Cri)3245, (3)WilfredR.FernandesVs.StateofMaharashtra 2011ALLMR(Cri)451, and submitted that Courts when seeks to rely upon the evidence of approver for convictingtheaccusedonthatevidencecorroborationshould beoftwokinds;firstlythattheCourtshouldsatisfythatthe statement of the approver is credible and there is other evidencethattheapproverhadtakenpartinthecrimetosay that she is really the accomplice and secondly the ocular evidencegivenbytheapprovershouldbesupportedbyother evidence which should be of such nature to connect the accusedwiththecrime. Hesubmittedthat, thisPWNo.1is notworthyofcreditorherevidenceisnotatallreliableasshe didnotdisclosethefactshehastestifiedbeforetheCourtat an earliest opportunity but there is long delay, She had severalopportunitiesofmakingsuchstatement.Further,her versionisnot consistentwithherearlierstatementandshe hadamotiveorreasontofalselyimplicatetheaccused.Itis submitted on 14.10.2009 she gave information to the police thatsomeunknownpersonhascommittedoffencewhichis alsoinconsistentwithherearlierstatementatPoonaHospital thatherdaughterwaslyingunconsciousontheterrace.

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35]Further,Itissubmittedthatherallegedstatement U/s.164ofCr.P wasnotrecordedbytheJudicialMagistrate .C. FirstClassbutbytheSpecialJudicialMagistrate,whoisnot authorized to record such statement and though the Investigating Officer had requested to the Chief Judicial Magistrate todothatexercise,thereisnoexplanationasto whyitwas notrecorded bythe Chief Judicial Magistrate or other Judicial Magistrate first class working here and what made the Special Judicial Magistrate to do that Job. He submitted that, the confessional statement recorded by Special Judicial Magistrate, U/s.164 of Cr.P is not .C. admissible in evidence, in view of the observation of the Hon'ble High Court in Bhuasaheb @ Babu vs. State of

Maharashtra1997 Cr.L.J.467 bringingtomynoticethe


observation therein that confession recorded by Special JudicialMagistrateisinadmissibleinevidence.

36] No doubt, the PW No.1 initially has stated to the doctor in Poona Hospital that her daughter was found un conscious on the terrace as if no offence was committed in relation to her body and later on at about mid night First Information Report was lodged that in the afternoon her daughter was found sleeping on the terrace and when she madeanattempttowakeup,shedidnotrespond.Hence,she

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broughtherdownintheflatofheremployeri.e.accusedand evenshemadeanattempttogivewaterbutherattemptwas failed and hence she was brought her to the hospital at 3 p.m. where doctor declared her dead and at the time of recordinginquest it was observed that herprivate part was tornandtherewasbleeding.Similarly,therewasmarkaround herneckandbecauseofthatsheexpressedherdoubtinthe reportthatsomeunknownpersonhadcommittedrapeonher daughterandkilledherbystrangulationandonthisreport thecrimewasregistered.

37] As I have stated earlier, just before that a little earlier before mid night of 14.10.2009 inquest was recorded and there is also reference to that exercise in this First InformationReport.Aftersomedaytheaccusedandthislady werearrestedandon24.10.2010sheimplicatedtheaccused. Thus,forthefirsttimethisPWNo.1implicatedtheaccused to be the perpetrator and made several allegations against him,thoughtillthen,asperthefactsonrecord,shehadnot putanykindofblameontheaccused. Onthecontrary, she conceded inthecrossexamination thatshehadtoldto the newsreporterthataccusedwastreatingherlikeadaughter. Further she had opportunity whenever she was produced beforetheMagistrateafter herarresttotellthefactsabout

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theallegedincident.Further,herstatementU/s.164ofCr.P .C. was recorded by the Special Judicial Magistrate on 21.11.2009.Butitcameonrecordthatmuchpriortothatthe Investigating Officer had addressed a letter to the Judicial Magistratewithrequesttorecordthestatementoftheaccused U/s.164 of Cr.P The letter of the Investigating Officer .C. addressedtoJudicialMagistrateisatEx.88asanadmitted documentitisdated24.10.2009,thedateonwhichshehad disclosedtheallegedfactimplicatingherselfandtheaccused incommissionofthesaidoffence.

38]Itisalsobroughttomynoticethat,thestatementof this PW No.1, the mother of the girl recorded by police was also forwarded along with that letter to the Chief Judicial Magistrate, Pune with a request to record her confessional statementoftheaccusedsayingthat,thematterissensitive. Thereisnothingonrecordwhythisdelayofabout4weeksin recording the statement of PW No.1 U/s.164 of the Act occurred.Onthisletterdtd24.10.09thereisanendorsement of Judicial Magistrate F.C.Khadki, Pune that the same be placed before the Regular Court and later on on 21.11.2009 the confessional statement of PW No.1 was recorded by the Special Judicial Magistrate, but for the delay investigating machineryorpolicecannotblamed.

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39] No doubt in Bhuasaheb @ Babu vs. State of

Maharashtra 1997 Cr.L.J. 467 it is observed that,


confession u/s. 164 of Cr.P.C. recorded by Special Judicial Magistrate is inadmissible in evidence. However the said observationwasmadeinthegivensetoffacts,thatitwasnot shown before the Court that the said Special Judicial Magistratewhocanbeappointedforayearsaidtohavebeen workingsince3years.ReferencetoSec.13 ofCr.P.C. ismade byHisLordshipanditwasnotedthattheappointmentofthe Special Judicial Magistrate can be made for a term not exceeding one year at a time. In this case Notification of appointment of Special Judicial Magistrate was produced wherein there is also reference as to power to record confessionU/s.164 ofCr.P.C..Thus,itcanbe saidthatthis Special Judicial Magistrate was having power to do such exerciseU/s.13(1)oftheAct.Inthiscasenothingisbrought on record that the Special Judicial Magistrate was not empowered to do so or his term was expired. That Special JudicialMagistrateisnotexaminedasawitnesstoprovethe said statement of PW No.1 recorded by him but it is even concededbythelearnedcounselfortheaccusedthatU/s.80 examinationoftheMagistrateisnotnecessary.

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40]TheHon'bleSupremeCourtMadiGangaVs.State of Orissa AIR 1981 S.C.1165; observed Sec.80 of the Evidence Act makes the examination of the Magistrate un necessary. It authorizes the Court to presume that the document is genuine, that any statements as to the circumstancesunderwhichitwastakenaretrueandthatsuch confessionwasonlytakeninaccordancewithlaw. In that case the Hon'ble Apex Court was dealing with the confessionalstatementoftheaccused.

41]Hereinthiscaseitneedstobenotedthat,nowsaid statementthoughrecordedasconfessionofPWNo.1asshe was accused at that time after tendering of pardon by this Court she is examined as a witness i.e. PW No.1 and her statement recorded by the Special Judicial Magistrate appointedU/s.11(1)istobetakenasstatementofthewitness recordedbytheMagistrateU/s.164(5)ofCr.P andprocedure .C. prescribed for that is simple as is prescribed by Sec.281 of

Cr.P thatisrecordingofstatementofthewitnessbeforethe .C.


Court at the trial. When such statement is recorded by a Magistrate bar placed by sec. 162 of Cr.P in use of that .C. statementwouldnotcomeintoplay,Suchstatementnotonly can be used to confront the author U/s.145, but also to corroborationhimU/s.157ofEvidenceAct.FurthertheRules

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applicabletotheconfessionarenotapplicableinthiscase,so farthatstatementisconcerned.

42]Further,onlybecausewhilemakingrequestthe Investigating Officer forwarded copy of the statement, he recorded during investigation to the Magistrate, the significanceofthatstatementorconfessionwouldbereduced or it would become inadmissible. When any judicial Magistrate empowered to act under of Code of Criminal

Proceduretorecordstatementoftheaccused/witnesshehas
to follow procedure prescribed by law . For recording confession formalities given under Sec.164 are to be strictly followed. Theguidelinesthereare alsogiveninCriminal Manual . When the statement of the witness is to be recorded, the procedure U/s.281 of Cr.P is to be followed. .C. Certainly, any Magistrate would not copy the earlier statementofthewitnesssenttohim.Thus,forforwardingthe earlier statement to the Magistrate, the alleged confessional statement of PW No.1 can not be discarded or that will not diminishtheworthofthatstatementasapieceofevidenceon record,thoughsmallone.

43] In this case there is delay in disclosure of the allegedstatement,which,accordingtoher,arethetruefacts.

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She has given a plausible explanation there for of that, because of the threats of the accused, I referred to earlier, she chose to keep mum till she was arrested. Her conduct certainlycannotbetermedtounnatural.Furtherthereisno such un explained delay, Perhaps many time delinquent, atleast in the beginning, never shows his willingness to confess his misdeed.Inthiscase implicatingtheaccused certainly was amounting to implicating herself as she was 'paridelicto'. Many times during investigation, police are required to use their own skill to extract confession of incriminatingfactsfromtheaccusedbyproper interrogation or otherwise or break the accused psychologically so that accusedwouldbeconstrainedtodisclosethefactshetriedto suppressorhide.Suchinterrogationordisclosuretopoliceto someextentisnottocollecttheevidencebuttogetcluefor further investigation unless confession is before the Magistrate.Manytimesevenif theaccusedinitiallyshows hiswillingnesstogivesuchstatement,hedeclinestoconfess theguiltornarratesuchaccount,amounting toconfession whenheisawarethatifhemakesdisclosureofincriminating facts,thatwouldbeusedagainsthimatthetimeoftrial.Asa rule,confessionisinadmissible,especiallywhenitisrecorded by police or in the presence of police, except in some circumstancesasisprovidedunderprovisionsofLawsandin

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oursystemthelawonconfessionisverystricttoprotectthe interestoftheaccused.Here,thatstatementwasrecordedby thepolice immediately on24.10.2009butaftersomedelay similarstatementofPW1wasrecordedbytheMagistrateas aconfession.Earlierstatementcouldbeusednotonlyby thedefencebutalsobyprosecutionunderSec.145andSec. 157ofEvidenceAct.limitedpurposeU/s.162ofCr.P asthe .C. said lady entered into the witness box as a witness against theaccused.Sheisnotbeingtriedwiththisaccusedasaco accused. 44] Further, if the said statement of PW No.1 is considered as statement of witness recorded by the MagistrateU/s.164(4) ofCr.P (Ex.25),the testimonyofthis .C. PWNo.1isbyandlargeconsistentwiththat.Minorvariations can not be considered as discrepancies in both the statements.Twostatementsgivenbyawitnessattwotimes can not be identical one. Some minor variations would be there and that should be considered as natural one. The alleged inconsistent statement brought to my notice in para No.37ofthecrossexaminationofPWNo.1areillusory.Itcan besaidthatthiswitnesshasstatedsamethinginsomeother manner and not in the same order as she stated in this Court.Thus,inmyopinion,thisstatementU/s.164(4)ofCr.P .C. (Ex.25)corroboratesthetestimonyofthiswitnessPWNo.1.

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45] It is also worth to be noted here that, tender of pardonisnotU/s.306 ofCr.P bytheMagistratewhotook .C. cognizance. SaidstatementU/s.164(5)wasrecordedduring investigation and not after tendering of the pardon by the MagistrateasperSec.206ofCr.P .Further,aftertendering .C. ofpardonbythisCourtshewasexaminedasaprosecution witness. Ordinarily in case of approver, pardon is tendered U/s.306 of Cr.P and then her statement is recorded by .C. Magistrate. Such statement is not considered to be confessionalstatementandthestringentprocedureprescribed bySec.164ofCr.P isnottobefollowed. .C. 46]Thus,inthiscasethoughPWNo.1isanapprover, whoseevidenceisalwaysconsideredtobeunworthyofcredit andcourtisrequiredto goforthecorroborationinmaterial particulars, above are the special circumstances which add littlemorecredittowhatthiswitnessdeposedatthetrial. 47] No doubt there are observations of the Hon'ble Supreme Court in Saravanbhavan & Govindaswamy Vs. StateofMadras1966Cri.L.J.949(SC)asunder: Ordinarily a Court seeks for corroboration of the evidenceofan approverbeforeconvictinganaccusedperson on that evidence. Generally speaking, this corroboration is of two kinds. Firstly, the Court has to satisfy itself that the statement of the approver is credible in itself ad there is

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evidence other than the statement of the approver that the approverhimselfhadtakenpartinthecrime;secondly, after thecourtissatisfiedthatthe approver'sstatementiscredible andhispartinthecrimeiscorroboratedbyotherevidence,the court seeks corroboration of the approver's evidence with respecttothepartofotheraccusedpersons in the crime and thisevidencehastobeofsuchanatureastoconnecttheother accusedwiththecrime But it must never be forgotten that before court reachesthestageofconsideringthequestionofcorroboration and its adequacy or otherwise, the first initial and essential questiontoconsideriswhetherevenasan accomplice the approverisareliablewitness.Iftheanswertothisquestionis againsttheapproverthenthere is an end of the matter and noquestionastowhetherhisevidenceiscorroboratedornot fallstobe considered. In other words, the appreciation of an approver'sevidence hastosatisfyadoubletest.Hisevidence mustshowthat he is a reliable witness and that is a test whichiscommontoallwitnesses.Ifthistestissatisfiedthe second test which still remains to be applied is that the approver'sevidencemustreceivesufficientcorroboration. andsimilararetheobservationsin Chandanandanother Vs. The state of Rajasthan AIR 1988 S.C. 599, and AbdulSattarVs.UnionTerritoryChandigarhAIR1988 S.C.1438,referringtoSec.133oftheEvidenceAct.ButasI havestatedearlier,theaforesaidaspectorcircumstanceasa specialfeatureofthecase,needstobeborneinmindtofind whatcreditthiswitnessdeservesandasIhavestatedearlier herearlierstatementU/s.164 ofCr.P Havingbeenrecorded .C. byMagistrate,itisapieceofevidence,whichcanbeusedto corroborate whatthis approverhasstatedfromthewitness box. Of course this can be taken as a small piece of corroborativeevidencebutitisoneofthematerialsonrecord.

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48] AsIhavealreadydiscussedhereinabove,thatthe delayin making disclosure is explained. She must not have disclosedthefactassheherselfwasalsoinvolved,asperher owncontention,withtheaccusedandalsohadillicitrelation withhim,assheclaimed.Fromthefactsonrecorditcanbe saidthatthe accused hadcarnalrelationwiththisladywith herconsentorshemighthavesurrenderedtohim.Buther statement about her relation with the accused, though challengedfeeblycanbeacceptedasnothingtodoubtthatis brought on record. Use of condom by the accused is also broughtonrecordandinmyopinion,herstatementonthat countbeingnotshakeninthecrossexaminationcanberelied upon.However,evenifawoman havesuchrelation, inour societyshe wouldnotdaretodiscloseittothirdpersonand would make every attempt to conceal it. PW 2. Dr.Bharti Ghadgealsostatedaboutthewrapperofcondomshefound bellow the bedroom of the accused. No doubt from her statement alone no inference can be drawn but if that statementisreadwithotherfactsonrecord,onecanbemade to believe that accused was using condom at times and certainlyuseofthatcannotbefortheintercoursewithhis wife,whowasparalyticandbedridden. 49]Thusdisclosurebythiswitnessasatruefact asshetestifiedfromthewitnessboxafterherarrestorsoon

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afterherarrestappearstobenaturalconduct.Whenshewas arrested as an accused by the police, they succeeded in gettingtherealstateofaffairsfromhermouthasmanytimes that happened. Further, there should not be any motive for thePWNo.1tofalselyimplicatethisaccusedasallegedbythe defence,atleastatthetimewhenshedisclosedallthosefacts to the police and thereafter gave statement before the Magistrate,thattooasanaccusedandnotasawitness.The learned Magistrate, who recorded the statement, appears to havetakenalltheprecautionsasrequiredbylawandshewas giventimeof24hourstorethinkwhethertogiveornottogive confessional statement, with the warning that if she made suchstatementthatwouldbeusedagainstheratthetrial. Despite of that, next day she gave statement and thus that statementcanbeconsideredwhollytobeuninfluencedbythe policemachineryorInvestigatingOfficer. Thus,inthiscase therewasnoquestionofhergainingsomethingbygivingsuch statement at that stage, when she was arrested or later on whentheMagistraterecordedherstatement.AsIhavealready stated,shewasmadeawarethatthesaidstatementwouldbe used against her at the trial as a evidence, means she was madeawarethatshemaybeconvictedonthebasisofthat statement still she chose to confess the facts even against herself and now this Court is required to consider that

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statement as a corroborative piece of evidence U/s.157 of EvidenceActasreferredabove.

50] It is brought to my notice that, during cross examinationthiswitnesshasadmittedthatshewasworried about the future of her second daughter Pooja and further admitted the suggestion because of that she shifted the incidentto Mohinirajbutimmediatelyvoluntarilyshe added that,sheimplicatedthe accusedbecausehehascommitted thatact.Nodoubt,whenshewasmadeanaccusedshemust beworriedaboutherseconddaughter.Butdisclosureofthat fact or accusing falsely this accused was not the solution whichwouldhelphertocomeoutofthecaseorgetdischarge oracquittal.AsIhavestatedearlier,thisCourthastendered pardontoheratthestageof framingofthechargeandnot priortothat.Thus,itwaswrongtosaythatbyputtingblame ontheaccusedshegainedsomething. Onthecontrary, she wasrunningariskatthattimethatonthebasisofherown confessionshecouldhavebeenconvicted..Further,thereis noreasontodisbelieveherstatementthataccusedhadkept illicitrelationwithherandthencommittedthatactofrape and murder of her daughter. If really that act was done by some unknownpersonorshewassureaboutthat fact,as shewaswellsettled,thoughasaservantinthehouseofthe

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accused,wouldnothaveputblameonhim,becauseofwhich not only she incriminated herself but also lost the job by implicatingtheaccused. 51]Trulyspeaking,thiswitnesscannotbeconsidered tobeaninterestedwitness,whenherdaughterwasrapedand murderedasamothershewouldhavebeeninterestedtosee thatrealculpritisprosecutedandconvicted.Acloserelative would not, unless strong motive is there, make false accusationagainsttheinnocentperson,leavingasidethereal perpetrator.

52] Even this P W 1, can be termed to be interested witnessasallegedbydefencecouncel.In SarbeswarMalik Vs. The State 1986 Cri.L.J. 1721 referring to earlier judgmentofHon'bleApexCourt inStateofRajasthanVs. Smt.Kalki 1981 Cri.L.J. 1012 Hon'ble High Court of Orissaobservedthatawitnesscanbecalledinterestedonly when he or she derives some benefit from the result of the litigation. A witness who is a natural one and is the only possibleeyewitnessinthecircumstancesofacasecannotbe said to be interested. It is observed 'related' to is not equivalentto'interested'.

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53]InthiscasethisPWNo.1couldnotgainanythingor derivesanybenefitfromtheresultofthistrialorincasethis accused is held guilty and convicted. Perhaps, she is the looser. She has not only lost her daughter but also the job besidesshegotherwomanhoodtarnished.Furtheradmittedly shewasnotwithinimicaltermswiththeaccused,thoughas perhercontentionheexploitedhersituationorbodybutshe concededshewasalsotosomeextentcompensatedforthat and even it came on record that on the next day of the incidentalsoshe hadgonetothehouseoftheaccusedas usual to perform her duty. Thus, this lady as a witness having no axe to grind against the accused is reliable one. Thereis reasontobelievethatshemustnothavedisclosed thetruefactsasinthateventshewouldwouldhavebeen bookedorimplicatedforcommissionofoffenceorforabetment as,shehadplayedanimportantrole,thoughpassiveone,by aidingtheaccusedorhelpinghimtodestroytheevidence.As isbroughtonrecordshemustbethinkingaboutthefutureof heranotherdaughterastowhatwouldhappentoherifsheis arrestedandprosecutedforsuchanoffencealongwithother. Thatcanbetheplausiblereasonforkeepingmumtillshewas arrested. After arrest she must have been broken psychologicallyandmustnotbeatthattimeinasituationto withholdtheincidentreallyoccurred.

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54] No doubt in this case the exact spot where the alleged rape or murder must have committed is not proved. According to PW No.1complainant, her daughter was found unconsciousontheterrace.Perhapsthereisreasontobelieve thatthegirlmusthavebeenbythattimeitselfdonetodeath as,accordingtoher,shewasbreathlessornotrespondingin any manner. Further as stated by this witness, though whatever blood was found on the terrace or elsewhere was cleanedandfloorwassweepedandthosematerials,including thepieceofclothwithwhichfloorwascleaned,handgloves etc. were kept in a polythene bag and taken away by the accusedtodestroythem.Thoughpolicemadeanattemptto find out those material along with alleged clothes of the deceased,whichwereputin the polythenebag andtaken awaybytheaccusedinacartootherspotbytheaccusedbut theycouldnotfound,thusthatexercisehasno evidentiary value.Further,itcanbesaidthatfromthespoteitherterrace orroomonthesecondfloornothingincriminatingwasfound with which accused could be linked. As per the Forensic LaboratoryReportsomehairsfoundonthecotwerebelonging tothedeceased.Furtherthebanianoftheaccusedthatwas seizedbytheaccusedhadhumanbloodstainsbutthatcan beofaccusedalso.Hairsofthevictimthatwerefoundonthe

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cot.Thatmeans,thevictimmusthavesleptorputonthatcot priortotheincidentorsoonafterit,stillthisfactalsocannot betakenasevidenceagainsttheaccused.However,itcanbe saidthatthepremisesonthesecondfloorortheterracewere generally not in use. In this case absence of the exact spot scene is of little significance. Admittedly, ground floor is in possessionofthebrotherofaccusedwhereastworoomsand 2ndfloorareinpossessionoftheaccused,butthetenementon thefirstfloorwasinhisuse,whereas,roomsonthesecond floorwasgenerallykeptclosed,stillfromthepanchanamaof thespotofsceneEx.34theymustbeinoccasionaluseofthe accusedashismanyarticleswerelyingthere,includingcots etc.

55]Thereisalsoextrajudicialconfessionoftheaccused. PW No.1 testified that, the accused had stated that he had committedrapeorsexualintercoursewithherdaughter.This statementofPWNo.1beforetheCourtisalsocorroboratedby herprevious statement recorded by the Magistrate. Further, shewithstood thecrossexaminationonthataspectfirmly. Suchextrajudicialconfessionisalsoagoodpieceofevidence TheHon'bleApexCourtinStateofU.P.Vs.M.K.Anthony AIR1985S.C.48(1)observed:

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Thereisneitheranyruleoflawnorofprudencethatevidence furnishedbyextrajudicialconfessioncannotbe reliedupon unlesscorroboratedbysomeothercredible evidence.The courtshaveconsideredtheevidenceofextrajudicialconfession aweakpieceofevidence.Ifthe evidenceaboutextrajudicial confessioncomesfromthe mouthofwitness/witnesswho appeartobeunbiased,not evenremotelyinimicaltothe accusedandinrespectof whomnothingisbroughtoutwhich maytendtoindicate thathemayhaveamotiveforattributing anuntruthful statementtotheaccused;thewordsspokento bythewitnessareclear,unambiguousandunmistakably conveythattheaccusedistheperpetratorofthecrimeand nothingisomittedbythewitnesswhichmaymilitateagainstit, thenaftersubjectingtheevidenceofthewitnesstoarigorous testonthetouchstoneofcredibility,ifitpassesthetest,the extrajudicialconfessioncanbeacceptedandcan bethebasis ofaconviction. 56]Inthiscaseasregardscommissionofrape,notonly theextrajudicialconfessioncomingfromthemouthofPWNo. 1istherebutthereisalsocorroborativemedicalevidencei.e. therewereinjuriestotheprivatepartofthegirli.e.perineal tearandlacerationofhymen,besidesotherinjurieswhichare describedbyPWNo.7asantemorteminjuries.Suchinjuries couldnotbecausedatallunlessthereispenetrativeor forcibleintercourse,especiallywhenthegirlwassmallchild whosegenitalorthatpartwasnotdeveloped.Theageofthe girladmittedlywas10yearsoraroundthatanddevelopment ofthoseorgansexternalorinternalstartsaround1314years. Stillsuchindecentactorforcibleintercoursewithsmall

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undevelopedchildrenisnotuncommon. 57]Itisfurthercontendedbythelearnedcounselforthe accusedthatduringthatperiodtherewasnoapportunityor timefortheaccusedtocommitsuchact.Itissubmittedsome oneelse,whohappen tocomeontheterraceoftheaccused asitwasaccessible fromtheterraceofotherbuildingmight havedonethat.Nodoubt,inthiscasenothingcouldbesaid exactlyatwhattimeaccusedcouldhavecommittedthatact butaspertheevidenceespeciallyPWNo.2Dr.BhartiGhadge, thatherusualtimetogivetreatmenttothewifeofaccused was11.00a.m.to12.30noonor4to5.15p.m.&onthatday she hadreached the houseofaccused atabout12.10noon andshecompletedthetreatmentat12.30p.m.Thiswitness alsostatedthatatabout12.20p.m.accusedhadcometothe roomofthepatientandatthattimethedaughterofRekha waspresentthereandshewasaskedtogooutandlateron accused also followedher.As perphone recordthe accused hadmadephonecalltoDr.Harsheatabout12.44p.mandto Sandip More, the brother of PW No.1 Rekha at 12.52 p.m. Generallywhenawitnesstellsthetimeofanyincident,that should be taken approximately. Even if the time stated specifically byaneducatedperson,havingwatchwithhim, therecouldbeerrorof5or10minutesunlesssomeonesays that at a particular moment, he had specifically noted the

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time from his watch. There is reason to believe that the alleged incident of rape and murder must have been committed around 12.15 to 12.30 p.m. or when this physiotherapistwasintheroomofthepatientandthemother ofthegirlwaswithher,helpingandattendingher.Thus,they bothwerebusyatthattimeandforsomeperiodthevictim andaccusedwereoutoftheroom.Asstatedearlierlascivious behaviouroftheaccusedcameonrecordandonthatdayalso accordingtoPWNo.1 hewaslookingogleather,maybefor some or the other reason. This much time is sufficient for anybodytocommitrapeandevenmurderbystrangulationor otherwise.PWNo.1statedthatthedaughterwasfoundinan unconscious condition when Dr.Bharti had gone away at 12.30 p.m. and she had just brought the tiffin from the mess/houseofSumanSanasandsubsequenteventsarenot indisputthatbodyofthegirlwasbroughtdownandaccused madeaphonecalltoDr.Harshe,asstatedabove,at12.44 p.m.butsimply informingthatthedaughterofRekhawas foundinanunconsciousconditionorisnottalkingandthen hemadephonecalltobrotherofPWNo.1andalsohadtalk withhermotherandthenshewastakentothehospitaland perhapsaround1.30p.m.shewasdeclareddeadofficiallyby thedoctorwhoattendedherandmadeanattempttorevive her.

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58]NodoubtPWNo.1statedwhilethebodywastaken downtheaccusedhadhangedherdaughterwiththehelpof scarftotheironstaircaseforawhileandthereafter,shewas broughtdownandtakentothehospital.However,nomedical evidenceistheretosupportthisbutonlybecauseofthat,the testimony of this woman cannot be doubted, nor it can be ruled out that no such incident had occurred, According to PW1,accusedhimselfhasstatedthatshewasnomorebefore shewastakentothehospital. 59]Itisafactthataspermedicalevidenceligature mark and resultant injury on the neck of the victim was because of the soft ligature like scarf and doctor told that suchinjuryorligaturewascausedwiththehelpofsuchscarf whenitwasshowntohim.Thatscarfwasfoundtiedtothe ironstaircase,leadingtotheterrace.Itisworthtobenoted that,atthattimeaccusedwastheonlymalememberinthe houseand hadanopportunityorsometimetocommitthe offence.Wheneverhewashavingopportunity,hehadsexual intercoursewithPWNo.1.However,hismisbehaviorwiththe girlcannotbetakenasprovedinthiscaseasthesaidgirldid not disclosed that fact to her mother PW No.1 and grand mother,towhomthegirlallegedtohavestatedthatfact,isnot examined.Buthismalignantbehaviourcanbespeltoutfrom

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theevidence.

60] Though it came on record that the terrace of the house of accused was approachable from the house of Dr.Paranjapebutitisverydifficulttodigestthatduringday time, some one would have come from the terrace of the adjoiningbuildingtotheterraceofthebuildingoftheaccused andfindingthegirlplayingthere,committedrapeandcaused herdeathbystrangulationandagainwentawayinthesame way. In urban city like Pune nobody's house, including the terrace,couldbeeasilyaccessiblefromadjoininghouseand unknownpersonwouldnot cometotheterraceoftheother fromtheotherbuildingexcepttocommittheft.Hence,inthis case except the accused, none else could have sexually assaulted that girl and might be because he was un successfuloroutoffearthatthegirlwoulddisclosethatfact toothersdonehertodeathbystrangulationwiththehelpof scarf,thegirlwasplayingwith,asthisfactalsohascameon record.

61] Much has been stated during argument that the clothesofthe deceasedandallthearticlesthatwereseized weresenttoChemicalAnalyserorDNAexaminationbutall the reports are in the negative. It is submitted that DNA

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reportisaconclusiveproofofthefact.Thus,itnegativedthe contention that the accused has committed the offence. No doubtthereportoftheForensicLaboratoryaswellasDNA reportonrecordexceptofthehairs,thatwerecollectedfrom thecot,werefoundtobeofthevictimareofnohelptothe prosecution. The banian of the accused had human blood stainsbutdetailedresultsareinconclusive. DNAreport is conclusiveproofofthefacttoruleouttheinvolvementofsome personwhenDNAprofileofthatfellowdoesnotmatchwith theDNAprofileofthequestionedmaterialcollectedfromthe spot orotherwise. With the help of such report or DNA profileitcanbeverywellsaidthatprofileofthe DNAtaken fromthesamplewasofsomebodyelse.Nosemenwasfound inthevaginalswabofthevictimbutthereisreasontobelieve on the basis of facts on record, either there might not be dischargeasdespitepenetrationtheactofintercoursemight not complete. Seldom there could be complete intercourse whengirlisofsuchtenderage.Secondlytheassailantmight haveusedthecondomasPWNo.1hasstatedthattherewas bloodstainedcondomfoundintheroomontheupperfloor. Thus, indirectly she described that room to be the spot of incident and as per her version that condom was destroyed alongwithothermaterialsthatwerecollectedatthattimeina carrybagbyPWNo.1. Hadtherebeensemenfoundinthe

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vaginalswabandDNAprofilethereofwerenotmatchingwith the accused it could have been conclusively said that the allegedactmusthavebeencommittedbysomeoneelseand notbythisaccused.HerenothingwasfoundbytheForensic expert, who examined those articles or tried to extract the DNAfromthematerialavailable.Thus,allthosereportsare inconclusiveorfromthemnoinferencecanbedrawnatall about any fact in question either in favour of accused or againsthim. 62] In this case accused examined no witness nor he gaveanyexplanationaboutalltheincriminatingfactsstated tohim.Hesimplydeniedthosefactsasfalseone.Inwritten notes he simply submitted that after departure of physiotherapistDr.BhartiGhadgePWNo.2RekhaPWNo.1 broughttiffinasusualfromthenearbybuildingandgavecall toherdaughterbutasshedidnotrespond,shewenttothe terraceandbroughtherdownandwhenhesawhershewas not conscious hence he made contact to Dr. Harshe, who advisedhimtogivewater,gheeandsugarandtakehertothe hospital,butthatgirldidnoteatsugar,gheeordrinkwater andimmediatelythereaftershewastakentothehospital.Itis further stated that there were no injuries on the person at thattimeandhedidnotknowwhetherthegirlwasrapedor howshediedorsomebodycommittedhermurder. According

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to him, he has been falsely implicated on the pressure of WomenOrganizationsandpoliticalparties.However,PWNo.1 categoricallystatedanditisalsonotchallengedduringcross examinationthatwhenshegavecalltoherdaughter,shedid notrespondandaccusedtoldherthatsheisontheterrace. Hence, she went there and she was also followed by the accused. 63]Itisalsobroughttomynoticethatto theCourt's questionPWNo.1answeredthatatthattimebloodwasnot coming out from the private part and it is argued that the privatepartofthewomanorgirlaresuppliedwithmanyblood vesselsand ifaninjuryiscausedthereshouldbeexcessive bleedingandpain.Perhapsbythetimethiswitnesshadseen the girl on terrace there might be about 15 to 20 minutes lapsedand thoughshestatedthat,bloodwasthereonthe floor,bleedingfromtheinjurymighthavestoppedbecauseof natural action of the body i.e. clotting of the blood. There wouldbeexcessivehemorrhageforlongerperiodwhenblood vesseliscutbysomeinstrument.Hereinthiscasetherewas perineal tear. That means bleeding may be through capillarities and that must have been stopped after few minutesautomatically.Itshouldbenotedherethat,thegirlof theageof10yearswouldhave undevelopedsexualorgans. Afteradolescencewhenthegirlattainspuberty,attheage13

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or 14 years,sex related developmental activities starts in external and internal genital organs and consequently there wouldbemorebloodsupplytothatpart.Butattheageof around 8 to 10 years, those organs being not developed, there is least supply of the blood. In case of such kind of sexualassaultonthegirl,whoattainedpuberty,therewould be morebleeding,thattoo,foralongerperiodastheblood supplyinthatareaisincreasedmanyfolds.AsIhavestated earlieratthetimeofinquestorpostpostmortemsomeblood like liquid was found oozing out but reason may be as suggested bydefencetoPWNo.7inthecrossexamination. Thus,theallegedstatementofPWNo.1thatshehasgivenin answer to the Court question, that there was no bleeding from the private part would not put question tag to the veracityofthiswitness. 64] It is also contended during argument that when therewasallegedrapebysuchaccusedtheremustbeinjury tohispenisbutduringexaminationofaccusednothingwas found. PW No.7 Doctor during cross examination admitted thatthereispossibilitythatwhenoneattemptstorapeany girl of such age, there could be injury to the penis of the rapist.However,itshouldbeborneinmindthatthisaccused wasarrested andexaminedafter severaldays.Evenifthere wassomeinjurytohispenisthatmaynotbetherewhenhe

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wasexaminedbythedoctoraftersuchalonggap.

65]Muchalsobeenstatedduringargumentthatinthis case no neighbours or mother or brother of PW No.1 is examined, nor at the instance of accused any thing was recovered U/s.27 of the Evidence Act or even other maid servant,whowasworkingwithaccusedduringnight,isnot examined, so also the police officer who prepared the panchanamaofthedeadbodyatPoonaHospital.However,in thiscasethemotherofPWNo.1couldhavestatedonlythe factabouttheallegedmisbehaviouroftheaccusedwiththe victmpriortotheincidentandnothingelseasregards the factinissue.Hence,hernonexaminationisnotfetal.Further personsresidingintheneighborhoodcouldnothavestated anything against the accused for nobody was aware what happenedonthatdayinthehouseoftheaccused.Further, only because nothing was recovered at the instance of the accusedU/s.27oftheEvidenceActwouldnotmakethecase against the accused doubtful one. Had there been any recovery certainly that evidence would have been of some importance to fortify the inference that could have been drawn fromotherevidence.Inmyopinion,theothermaid servant,whowasworkingduringnighthourspriortothisPW No.1alsowasnottheproperwitness.

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66]Thiscaseisnotpurelyrestsonthecircumstantial evidence. Main evidence is of PW No.1 and to her corroboration other circumstances are on record, including her disclosure of the same facts to the Magistrate during investigation. Only when the case purely based upon the circumstantial evidence, the principle laid down by the Hon'ble Apex Court in ShankaralaGyarasilalDixit Vs. StateofMaharashtra,AIR1981S.C.765(1)istobeborne in mind that, in case of circumstantial evidence, the circumstances on which prosecution relied, must be consistentwiththehypothesisoftheguiltoftheaccused.

67] Here in this case, those circumstances are relied upontocorroboratethetestimonyofPWNo.1,whowasthe accompliceandhadhelpedtheaccusedincommissionofthe offenceanddestroyedtheevidencethereof.Onthequestionof rape extrajudicial confession is there, besides the other circumstantial evidence and medical evidence. Whereas, as regardscommissionofthemurderthisaccusedalonehadan opportunity,occasionandmotivetodosoandexcept him, nobodycouldhavedonethatactatthattime.Thus,evenif thoseobservationsoftheHon'bleApexCourt arebornein mind,thisaccusedcouldbetermedtobetheonlypersonwho could have committed the offence of rape and murder. I

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thereferholdthatthisaccusedhascommitted rapeonthe girl,thedaughterofPWNo.1,whowasatthattimeadmittedly below the age of 12 years and caused her death by strangulation. Thus I answer points No.2 & 3 in the affirmative.

68]AstoPointsNo.4&5:

There is categorical evidence that, this accused had askedPWNo.1tocleantheflooroftheroomandtheterrace, wherebloodstainswerethereandthosebloodstainedcloths ofthevictimandtheclathwithwhichthefloorwascleaned, bloodstainedcondom,handglovesetc.wereaskedtobekept inapolythenebagandtheyweretakenbyhiminhiscarat someotherplaceandtheycouldnotbefoundoutbypolice fromtheallegedspot,thoughtheymadesuchattempthence theymusthavebeendestroyed.Thusasdiscussedabove,he had made an attempt to destroy the evidence of rape and murderwiththehelpofwhichhecouldhavebeenconnected withtheoffencehecommitted.Besides,healsohadgiventhe false information as regards the offence he committed in respectofthebodyofthevictim.Thus,heisalsoguiltyofthe offence punishable U/s.201 of Indian Penal Code. However, thereisnoevidencethatthisaccusedhimselfhadgivenany

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falseinformationtothepublicservantorpoliceofficertocarry outinvestigationofthesaidoffenceagainstunknownperson. Fromtheevidenceonrecorditcanbesaidthathegavewrong information to the doctor at Poona Hospital but not to any publicservantorpoliceofficeroranypersontocauseinjury to him. Thus, there is no evidence to say that he has committedoffencepunishableU/s.182ofIndianPenalCode. Hence,IanswerpointsNo.4&5accordingly.

69]AstoPointsNo.6to9:

To prove the fact that the victim was belonging to ScheduledCasteorScheduledTribe,no evidenceisbrought onrecord.FortheprosecutionofanyoffenceunderthisAct,it must be proved that the complainant or victim or a person against whom offence is committed, belongs to Scheduled Caste orScheduled Tribe. Here in this case, the accused is admittedlyofBrahmincastebutunlessproofofthecasteof complainantorthevictimisproducedonrecord,thisaccused cannot be held guilty of commission of offence U/s.3(1)(xi), 3(1)(xii), 3(2)(v) and 3(2)(vi) of the Scheduled Caste and Scheduled Tribes ( Prevention of Atrocities ) Act, 1989. In such cases, generally caste certificate of the victim or the person against whom the offence is committed, should be

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producedonrecord.Hence,withoutfurtherdiscussionIhave torecordmyfindingsonpointsNo.6to9inthenegative.

70] As discussed above, accused can be said to have committed offence punishable U/s.376(2)(f), 302 & 201 of IndianPenalCodeandheisconvictedaccordinglyunderthe saidpenalprovisions.

71]Itookapauseheretoheartheaccused,hislearned Counselaswellaslearned AdditionalPublicProsecutoron thepointofsentence.However,thelearnedAdditionalPublic Prosecutor as well as counsel for the accused prayed to adjournthematterformakingsubmissiononthat.Hence,the matterisadjourned.

2 January,2012.
nd

(S.D.Darne) AdditionalSessionsJudge, Pune.

72]TodayIheardthe accused,aswellashisAdvocate so also the learned Additional Public Prosecutor on the question of sentence. The accused said nothing, but his learnedAdvocate submittedthat,consideringtheageofthe accusedandthefactthatthereisnocriminalantecedentsor

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hecanbeanotmenaceordangeroustothesociety,lenient view needs to be taken while awarding sentence. He cited judgmentofAllahabadHighCourtin SherSinghVs.State ofU.P.2008Cri.L.J.4540,wherein,thoughaccusedwas held guilty for the offence punishable U/s.376 and 302 of Indian Penal Code and Trial Court had awarded death sentence, it was converted into life imprisonment. He submitted,inthat casealsothevictimwasoftheageof2 years, whereas the accused was above 40 years. He also placedrelianceonthejudgmentoftheHon'bleApexCourtin Sebastian @ Chevithiyan Vs. State of Kerala (2010)1 SCC 58, wherein accused was held guilty for the offence punishable U/s.302, 364, 369, 376(2)(f), 392 and 449 and victim was of 2 years. The Trial Court had imposed death penaltyforthemurderbuttheHon'bleHighCourtmodifiedit andconvertedintoimprisonmentforlifeandHon'bleSupreme Courtupheldthesamewhiledismissingtheappeal. 73]Healso referred to notesofcases inthe matterof Raju Basor and others Vs. State 2010 Cri.L.J. (NOC) 1226(Allahabad)whereinobservationsaremadethatwhen thereisnothingonrecordtoshowthataccusedhadcriminal antecedents or were involved in crime of such nature as a habitand noevidence istheretomanifestthattheywould constituteanymenacetosocietyinfuture,case casenotbe

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falling within category of rarest of rare case. Hence death sentence was reduced to imprisonment for life. Thus, According to him, keeping in mind these observations, the accusedisentitledtoleniency.

74]ThelearnedAdditionalPublicProsecutorsubmitted that, in fact it is a rarest of rare case and the act of the accused is diabolic and gruesome, hence while awarding sentence both the purposes, retribution and deterrence shouldbeservedandsuchpersonneedstobepermanently removedfrom the society hence, death sentence is a proper sentence. HealsoreliedupontheHon'bleApexCourt judgment inMaheshVs.StateofU.P.AIR1987S.C.1346(1)wherein observationsaremadethat,itwouldbemockeryofjusticeto permittheaccusedtoescapetheextremepenaltyoflawwhen facedwithsuchevidenceandsuchcruelacts,andtogivethe lesser punishment for the accused would be to render the justicingsystemofthecountrysuspectandcommonmanwill losefaithincourts.

75]HealsoreferredtotheearlierjudgmentofHon'ble ApexCourtinMachhiSingh&othersVs.StateofPunjab AIR 1983 S.C. 957(1) wherein it is observed Life

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imprisonmentistheruleanddeathsentenceisanexception. Inotherwords,deathsentencemustbeimposedonlywhen life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and provided, and only provided, the option to impose sentence of imprisonment for life can not be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. It is further observed, "a balance sheet of aggravatingandmitigatingcircumstanceshastobedrawnup and in doing so the mitigating circumstances have to be accordedfullweightageandajustbalancehastobestruck between the aggravating and the mitigating circumstances beforetheoptionisexercised".

76] Reference is also made to the latest judgment of Hon'ble Apex Court in Md.Mannan Vs.State of Bihar 2011 SAR (Cri) 584, It is opined "when the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community, one has to lean towardsthedeathsentence.Itisobservedinthatcasethat appellantisamenacetothesocietyandcannotbereformed. Thus,itissaidthatthecasefallsinthecategoryoftherarest

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ofrarecase.Deathsentenceimposedbythecourtsbelowwas proper".

77]Whileawardingsentence,theCourtsarerequiredto consideraggravatingandmitigatingcircumstances.Itcannot be saidthatinaparticularcasehigherCourthadawarded such sentence and same should be followed in other. Of course whatever observations are made by the superior Courtsaretobefollowedasguidelines.Tocallacasetobea rarest of rare case, wherein only death sentence is to be awarded, that should be of that nature in all perspective. Besides, it should be also found out as observed by the Hon'ble Allahabad High Court in Basor and others Vs. StateandtheHon'bleApexCourtinMd.MannanVs.State ofBihar (citedsupra) Whetherthe accused isamenaceto the society or he is so dangerous that he needs to be eliminatedfromthesociety. 78] The accused is of the age of 81 years. This fact

needstobeconsideredorborneinmind.Nodoubtthevictim wasalsoaminoroftheageof10yearsandheisconvictedfor committingherrapeandmurderbutitcannotbesaidfrom the facts on record that he is dangerous to the society to impose death penalty for the offence punishable U/s.302 of IndianPenalCodecallingthiscasetobeararestofrarecase.

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In my opinion, sentencing him to suffer life imprisonment wouldbeanadequatepunishment.Thatwouldachieveboth thepurposesofsentencei.e.deterrentandreformity. 79] Furtherheisheldguiltyoftheoffencepunishable

U/s.376(2)(f) of Indian Penal Code for which law prescribed sentence not less than 10 years rigorous imprisonment. No specialreasonsaretherethatheshouldbesentencedforless than 10 years. In my opinion, that would be adequate sentence.HeisalsoheldguiltyoftheoffencepunishableU/s. 201 of Indian Penal Code, for that three years' rigorous sentencewouldbeproper,besidessomefineamount.Hence,I passthefollowingorder: ORDER 1] The accused Mohiniraj Yashwant Kulkarni is convictedoftheoffencepunishableundersection302ofthe IndianPenalCodeand heissentencedtoundergorigorous imprisonmentforlife. 2]Heisalsoconvictedoftheoffencepunishableunder section376(2)(f)oftheIndianPenalCodeandheissentenced toundergorigorousimprisonmentforTenyears andtopay fine of Rs.10,000/ (Rupees Ten thousand) in default of payment of fine, he should undergo further R.I. for six months. 3]Heisalsoconvictedoftheoffencepunishableunder

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section201oftheIndianPenalCodeandheissentencedto undergo rigorous imprisonment forThree years and to pay fine of Rs.2,000/ (Rupees Two thousand) in default of payment of fine, he should undergo further R.I. for three months. 4] Accused is acquitted of the offence punishable U/s. 182ofIndianPenalCodeand U/s.3(1)(xi)3(1)(xii)3(2)(v)3(2) (vi)oftheScheduledCasteandScheduledTribes(Prevention ofAtrocities)Act,1989. 5]Allthesentencestorunconcurrently. 6]The accused is UnderTrialPrisoner henceheshall be entitled to set off U/s.428 of Cr.P in case Government .C. commutessentenceoflifeimprisonmentU/s.433ofCr.P .C. 7]Themuddemalpropertybeingworthlessbedestroyed afterappealperiodisover. (S.D.Darne) AdditionalSessionsJudge, Pune.

3rdJanuary,2012.

IaffirmthatthecontentsofthisPDFjudgmentare samewordforwordaspertheoriginaljudgment. NameofSteno:Mr.M.M.A.Hussain. Courtname:Shri.S.D.Darne,

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AdditionalSessionsJudge,Pune

DateofPDF

:9012012

Dateofuploadingjudgment:09012012