2004 ALL MR (Cri) 3076
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. PARKAR AND R.P. DESAI, JJ.
State Of Maharashtra Vs. Shivaji @ Dadya Shankar Alhat
Confirmation Case No.1 of 2003,Criminal Appeal No.574 of 2004
8th July, 2004
Petitioner Counsel: Mr. D. S. MHAISPURKAR , A. S. GADKARI
Respondent Counsel: Mr. ABHAY KUMAR APTE
(A) Penal Code (1860), Ss.302, 376 - Evidence Act (1872), S.3 - Conviction and sentence - Circumstantial evidence - Evidence of last seen to-gether - Victim girl aged 9 years coming from a poor family - Accused was her neighbour and having cordial relations with family of deceased girl - He took her in a desolate place in the jungle on the pretext of giving her fuel wood - There he raped, stabbed and strangulated her - Both of them were last seen going towards jungle in the hill by a lady who was collecting cow dung, her sister who had gone towards borewell to fetch water and one other resident of the village - Their evidence was consistent and there was no reason to falsely implicate accused - Accused did not state when he parted company of deceased but falsely denied that he had ever gone with deceased - His plea of alibi was not corroborated - Stains of blood of "O" group of deceased were found on penknife recovered at the instance of accused - Accused was absconding and was found hiding in a sugarcane crop - Held adverse inference could be drawn against accused - Looking to brutality and heinous nature of crime death sentence was confirmed.
The present case has all that is required to place it in the category of rarest of rare cases. The deceased was just 9 years old. She came from a poor family. The deceased, her two sisters and their grandmother were being maintained by the deceased's mother who was working as a maid. The father of the deceased had deserted them. The deceased was thus a vulnerable young girl. The accused was her neighbour. The deceased used to sometimes give him bread. The relations between the accused and the family of the deceased were cordial. The deceased thus trusted the accused. The accused took advantage of this situation. He took her to a desolate place in the jungle on the pretext of giving her fuel wood. There he raped her and stabbed and strangulated her to death. The postmortem notes indicate the brutality of the crime. There were several injuries on the deceased. Three of her ribs were broken. After committing the crime the accused absconded. To such a person death penalty is rightly awarded. No mitigating circumstances are present to give a lesser punishment. (2003)1 SCC 534, (1994)2 SCC 220, (1994)3 SCC 381, (1996)6 SCC 250, 2000 ALL MR (Cri) 355. [Para 54]
(B) Penal Code (1860), S.376(2)(f) - Rape on minor girl aged 9 years - Accused a fully grown up married man having three children - He was medically examined after about five days - Injuries on genitals of accused if any would have healed during this period - Hence absence of injuries was of no significance. AIR 1973 SC 343 Distinguished. (Para 43)
Rahim Beg Vs. State of U.P., A.I.R. 1973 S.C. 343 [Para 13,42,43]
Manzoor Vs. State of Uttar Pradesh, A.I.R. 1983 SC 295 [Para 14]
Bishnu Deo Shaw Vs. State of West Bengal, AIR 1979 SC 964 [Para 15,45,46]
Kumudilal Vs. State of U.P., A.I.R. 1999 S.C. 1699 [Para 15,47]
Dhananjay Chatterjee alias Dhana Vs. State of West Bengal, (1994)2 SCC 220 [Para 16,50]
Laxman Naik Vs. State of Orissa, (1994)3 SCC 381 [Para 16,49]
Kamta Tiwari Vs. State of M.P., (1996)6 SCC 250 [Para 16,51]
Molai Vs. State of M.P., 2000 ALL MR (Cri) 355 (S.C.) [Para 16,52]
Sahadevan alias Sagadevan Vs. State, (2003)1 SCC 534 [Para 16,34]
State of Rajasthan Vs. Teja Ram, (1999)3 SCC 507 [Para 39]
State of Maharashtra Vs. Bharat Dahiwala, 2002 Cri.L.J. (SC) 218 [Para 53]
Bachan Singh Vs. State of Punjab, (1980)2 SCC 684 [Para 53]
Smt. RANJANA DESAI, J.:- The appellant (the accused for convenience) was tried in the Court of II Addl. Sessions Judge, Pune at Pune in Sessions Case No.209 of 2002 for offences punishable under sections 302, 376 (2) (f) of the Indian Penal Code ("I.P.C." for short). By his judgment and order dated 27th June, 2004, the learned II Addl. Sessions Judge found him guilty of the offences punishable under section 302, 376(2)(f) of the I.P.C. For the offence of murder he has sentence the accused to death. He has also sentenced him to suffer R.I. for a period of 10 years and to pay a fine of Rs.3,000/-, in default to suffer one year R.I. in connection with the offence punishable under section 376(2)(f) of the I.P.C.
2. Being aggrieved by the said judgment and order, the accused has preferred Criminal Appeal No.574 of 2004. As required by Section 366 of the Code of Criminal Procedure ("the Code" for short), a reference has been made to this court for the confirmation of the death sentence, being Confirmation Case No.1 of 2003. We have heard the reference as well as the confirmation case together. The accused was present in the court throughout the hearing.
3. The accused is B.A. B.Ed. and was serving as teacher at Pune in the year 1986. It is the prosecution case that he was staying with his mother and sister near the house of the deceased. The accused is a married man and has three children. His wife and children are not residing with him.
4. The accused was known to the deceased and her family. The deceased and her family used to sometimes give him bread. The deceased was nine years old and was studying in 5th Standard. She has two sisters namely Bhagyashree and Jayshree. Her mother Sushilabai was working as a maid. All of them were staying with their grandmother Yashodabai. The father of the deceased was not staying with them on account of strained relationship between him and Sushila, the mother of the deceased.
5. The incident in question occurred on 14th January, 2002. On that day there was festival of Makarsankrant. Sushilabai had gone to the house of one Tirandaz for work. The deceased and her two sisters and their grandmother Yashodabai were present in the house. At about 11-30 a.m. the deceased and her sister Jayshree had gone to the borewell of one Sangale in order to fetch water. The accused was sitting on the slab, where construction work of one Mr. Gaikar was going on. The accused told the deceased that he would give her fuel wood from the hill. Thereafter they came to the house. The deceased kept the pitcher in the house and she went along with the accused towards the hill called Manmodya Dongar. Therefore the deceased did not return home.
6. Sushilabai came home at about 4-30 p.m. She was told that her daughter Hemlata had gone with the accused and had not returned. They started searching for the deceased but could not find her. On the same day i.e. on 14th January, 2002, Yashodabai, the grandmother of the deceased gave a missing complaint (Ex.27) to the police in which she stated that the deceased had left the house with the accused and had not come back. Search was going onto find out the deceased. It appears that Sushilabai got to know from one Sakinabai that dead body of Hemlata was lying on Manmodya hill. She also gave information to the police on 15th January, 2002 regarding missing of Hemlata which is at Exhibit 12. In this complaint she also stated that the deceased had left the house along with the accused.
7. After seeing the dead body of Hemlata at Junnar Hospital, Sushilabai reported the matter to the police. Her complaint came to be recorded in which she stated that her daughter had left with the accused on 14-1-2002. She specifically stated that she was convinced that, it is the accused who had raped her daughter and assaulted her on her abdomen with a sharp edged weapon, strangulated her with a rope and murdered her. On the basis of this F.I.R. (Ex.30) investigation started.
8. The accused was not traceable. He could be arrested only on 16th January, 2002. He was found hiding in the sugar cane crop of one Gaikwad. After completion of the investigation the accused came to be charged as aforesaid.
9. In support of its case, the prosecution examined as many as 17 witnesses. Prosecution examined P.W.1 Sushilabai, the mother of the deceased and P.W.7 Yashodhabai, grandmother of the deceased, PW 8 Jayshree the sister of the deceased. PW 9 Shantabai and PW 6 Khanwar Hussein were examined to establish the prosecution case that the accused and the deceased were last seen together on 14th January, 2002 at about 11-30 a.m. going towards Manmodya Hill. PW 3 Suresh B. Visave is a pancha to the panchnama of recovery of penknife at the instance of the accused. PW 15 Dr. Suresh R. Shahane had examined the accused. PW 17 Dr. Suresh B. Patankar had examined the accused to find out whether he was capable of sexual intercourse. The prosecution also examined PW 5 Dr. Nana N. Sonawane, who proved the postmortem notes. Investigation was conducted by PW 14 PSI Ramesh R. Bhosale and PW 16 PSI Dilip D. Jagdale.
10. The defence of the accused was one of denial. According to him he was falsely implicated. His case was that in fact at the relevant time he was not present in village Barav Junnar. He had gone to his daughters' house, then to Pansarewadi and then to his sisters' home at Thane. The accused did not examine any witness in support of his case.
12. We have heard at some length Mr. Abhay Apte, the learned counsel appearing for the accused. He contended that the trial court erred in sentencing the accused. He submitted that there is no eye-witness to the incident. The only circumstance on which the prosecution is heavily relying on is that the accused was last seen with the deceased on the day of the incident at about 11-30 in the morning. Apart from that there is no cogent or clinching evidence which could link the accused to the offence in question. He submitted that the discovery of penknife at the instance of the accused cannot be believed. He drew our attention to the evidence of PW 3 Subhash Visave. He pointed out that Subhash Visave has stated in the examination-in-chief that the accused produced the penknife from the grass near a Neem tree whereas in the cross-examination he has stated that the accused told the police that he had kept the penknife near the Bori tree. He further contended that PW 2 Chandrakant Kadam who has acted as the pancha to the scene of offence panchnama has stated that he found a penknife inserted in the stomach of the deceased. He contended that this evidence falsifies the prosecution case regarding discovery of penknife at the instance of the accused. He contended that in the circumstances it is highly risky to place reliance on the alleged recovery of penknife at the instance of the accused.
13. The learned counsel further contended that no injuries were found on the genitals of the accused. The deceased was a virgin and the accused is a fully developed man. Therefore, in the nature of things there would have been injuries on the genitals of the accused. The fact that there are no injuries speaks volumes and reflects on the prosecution story. In this connection he relied on Rahim Beg Vs. State of U.P., A.I.R. 1973 S.C. 343.
14. The learned counsel then contended that this is a case of circumstantial evidence. In the case of circumstantial evidence, the circumstances have to be clinching and must form a chain which must unerringly point to the guilt of the accused. Such is not the case here, therefore, the accused needs to be acquitted. In this connection the learned counsel relied on Manzoor Vs. State of Uttar Pradesh, A.I.R. 1983 SC 295.
15. He then relied on Bishnu Deo Shaw Vs. State of West Bengal, AIR 1979 SC 964 and Kumudilal Vs. State of U.P., A.I.R. 1999 S.C. 1699 and contended that the Supreme Court has observed therein that there should be special reason justifying the imposition of death penalty. He submitted that special reason is absent in the present case and hence even if this court comes to the conclusion that the conviction needs to be confirmed the extreme penalty of death should not be given to the accused because this is not a rarest of rare cases.
16. As against this Mr. Mhaispurkar, learned APP contended that the evidence of PW 8 Jayshree, the sister of the deceased, PW 6 Khanwar Hussein and PW 9 Shantabai inspires confidence. The prosecution has established that the accused and the deceased were last seen together. Therefore the accused was not traceable and could be located only on the 18th of January, 2002. There is a discovery of penknife at the instance of the accused. The accused has put up a false defence of alibi. The chain of circumstances is, therefore, complete. The learned APP submitted that this is a gross case where a hapless young minor girl was taken to a forlorn place, raped and murdered by strangulation and by inflicting injury with a penknife. Relying on Dhananjay Chatterjee alias Dhana Vs. State of West Bengal, (1994)2 SCC 220; Laxman Naik Vs. State of Orissa, (1994)3 SCC 381, Kamta Tiwari Vs. State of M.P., (1996)6 SCC 250, Molai & Anr. Vs. State of M.P., 2000 ALL MR (Cri) 355 and Sahadevan alias Sagadevan Vs. State, (2003)1 SCC 534 learned counsel submitted that this is a case where the appellant-accused deserves to be sentenced to death and, therefore, this court should confirm the judgment of the Sessions Court.
18. The deceased was 9 years old and was studying in 5th Standard. This case of the prosecution can hardly be doubted. Mother of the deceased PW 1 Sushila, grandmother of the deceased PW 7 Yashodabai and sister of the deceased PW 8 Jayashree confirm this. PW 13 Smt. Titar, Head Mistress of Junnar Marathi School, where the deceased was studying has produced the school leaving certificate of the deceased which is at Exh.41. It shows her date of birth as 29th July, 1992. Postmortem notes Exh.20 also confirm that the deceased was a minor.
19. Dr. Nana Sonawane, Chief Medical Officer, Cottage Hospital, Junnar Pune, had conducted postmortem examination of the deceased on 17-1-2002. During examination he found the following external injuries on the person of the deceased :-
"1) Vulva which is swollen with multiple abrasion majora and minora.
2) Vagina which admits two fingers with rupture of hymen. Mucosa is completely lacerated i.e. redish and lacerated.
3) Posterior commissure was ruptured with bleeding and 1 cm. in length.
4) Whole perinium swollen and shown semen stains.
5) Multiple minor irregular abrasion left cheek.
6) Multiple minor nail abrasion on the right cheek near eye.
7) Neck, ligature mark around the neck of 1 cm. in breadth starting from behind the mastoid, front of neck and below the thyroid cartilage extended posterior, aspect of neck, the mark is transversely circular and continuous around the neck. Mark is chocolate colour.
8) Multiple abrasion on right side of neck posterior.
9) Abraded skin below mastoid region on right side.
10) Cut incised wound i.e. stab, on right side of abdomen, 1 cm lateral to umbilicus measures 3 cm x 1/2 cm x 10 cm. Spindle shaped with sharp edge, Omentum and small intestine coming out of wound.
11) Multiple irregular abrasion on both thighs and buttocks and back.
12) Multiple linear abrasion on left leg, laterilly.
13) Abraded skin near lateral malleonous of ankle joint.
14) Abrasion on left great toe.
15) Multiple, minor irregular abrasion on right arm posterior.
16) Multiple abrasion on whole back.
17) Multiple irregular abrasions on left arm posteriorly.
18) Multiple abrasion (linear) on right calf.
19) Multiple abrasion on right knee anterior.
20) Multiple abrasion on right leg middle 1/3rd part anterior.
21) Multiple abrasion near medial malleonous of right ankle joint."
"(1) Fracture of 8, 9th ribs left side.
(2) Injury under scalp, contused leteral muscles of both temporal and occipital muscles.
(3) Brain, deeply congested.
(4) Ligature mark around the neck 1 cm. in breadth, starting from left martained, posterior, front of neck below thyroid cartilage extended posterior aspect of neck chocolate colour.
(5) Thorax - muscles of neck injured and lacerated, laceration of sheath and inner mucosa of carotid artery is seen.
(6) Both lungs are deeply congested with frothy blood, stained discharge after cutting and little pressure. Larynx, trachea and bronchi frothy secretions present and pleura was congested.
(7) Abdomen : spindly shaped stab incideed wound on right side, 3 x 1/2 x 10 cm with omentum coming out. Peritoneum shows spindle shape stab incised wound which is penitrating. Plenty of blood in peritoneal cavity with foceal matter food particles. Tongue bitten teeth, Oesophagus shows congestion at ligature mark. Stomach and its contents, 250ml. semi digested food dark and bluish fluid. Small intestine-cut incised perforation with food particles coming out of it. Large intestine and its contents. Cut incised perforation seen near colon and caccum. Liver of other was ascending all organs were congested."
21. According to Dr. Sonawane the death had taken place on account of asphyxia due to strangulation. Dr. Sonawane further stated that Hemlata was subjected to rape prior to her death. He had found injury on her private parts and also found her hymen ruptured. There was penetration.
22. When penknife article 14 was shown to him, he stated that stab injury, i.e. cut incised wound is possible with the penknife. He further stated that all the injuries were antemortem and cut incised stab wound on large and small intestines are also possible with the help of penknife Article 14. The age of the injuries was within 24 hours. He stated that ligature mark was possible with the use of rope Article 16. From the evidence of Dr. Sonawane one thing is clear that the deceased was raped. She was assaulted with penknife and was killed by strangulating her with the rope. Several injuries on her body positively establish that it is a most brutal case of rape and murder. Since the deceased was a minor the offence of rape is covered by Section 376(f) of the I.P.C.
23. From the evidence of PW 1 Sushila, PW 7 Yashodabai and PW 8 Jayashree it appears that they are a poor family. PW 1 Sushila is lame and at the relevant time was deserted by her husband. Sushila and her three daughters used to stay with her mother Yashodabai who was about 69 years old. Sushila used to work as a maid and used to be away from the house for long hours in connection with work leaving in the house her mother and three daughters. The daughters used to do household work like filling water and used to go to school. The deceased was thus a hapless poor girl of tender age. She had no protection of the father. She was, therefore, a vulnerable girl.
24. PW 7 Yashodabai has stated that the deceased was residing near their house. He was not doing any work. His wife and children were not residing with him. PW 1 Sushila has stated the since the accused used to stay in hilly area the deceased used to sometimes give him bread. Their relations with the accused were cordial. PW 6 Khanwar Hussein and PW 9 Shantabai stay in village Barav Junnar where the deceased was staying. They have also confirmed that the accused used to stay in the same village. Therefore, that the accused was staying near the house of the deceased and was known to her has been established.
25. PW 1 Sushila, the mother of the deceased has stated that on 14th January, 2002, she had gone to the house of one Tirandaz for work. At that time her three daughters and mother were present in the house. She left the house at about 11-15 a.m. and came back at about 4.30 p.m. When she came back her mother told her that the deceased had gone to bring fuel wood along with the accused. Since the deceased did not come back they started searching for her. Yashodabai, the grandmother of the deceased gave a missing complaint to the Junnar police on 14-1-2002. On 15th January, 2002 at about 8.30 to 9.00 a.m. one Sakinabai who was residing near their house, came and informed that the dead body of the deceased was found on the hill. Sushila then gave a complaint to the police on 15-1-2002 that her daughter had left with the accused on 14-1-2002 at about 11 O' clock in the morning; that she had not returned home; that they had searched for her; that her neighbour Sakina Shaikh had told her that the dead body of her daughter was lying on the hill and that out of fear she had not gone to see the dead body. The said complaint is at Exhibit-12.
26. Thereafter the dead body of deceased was taken to Shivaji Maharaj Kute Rugnalay, Junnar. After seeing the dead body Sushila lodged her complaint (Exh.30) in which she stated that her daughter had gone with the accused at about 11 O' clock on 14-1-2002 to bring fuel. She complained against the accused that he had killed her after committing rape on her.
27. PW 8 Jayshree is the minor daughter of PW 1 Sushila. Her evidence in our opinion is crucial to the prosecution case and it also inspires confidence. She has stated that on 14th January, 2002, she had gone with her sister Hemlata, towards the borewell of one Sangale in order to fetch water, at about 11-30 a.m. The construction work of one Gaikar was going on and the accused was sitting on the slab there. The accused met them and told the deceased that he would give her fuel wood from the hill. Thereafter they came home. The deceased kept her pitcher in the house. She took a towel and a sickle and went along with the accused towards Manmodya hill. She has further stated that as her mother was not present she told her grandmother that the deceased had gone along with the accused to bring fuel wood. When her mother came back at 4-30 p.m. she told her mother that the deceased had gone along with the accused. Since the deceased did not come back they started searching for her. The body of the deceased was found on the next day on the hill. This witness has stood the test of cross-examination very well. She has stuck to her version in the examination-in-chief. There is not a single discrepancy in her evidence. We find no hesitation in placing reliance on this witness.
28. The evidence of PW 8 Jayshree is corroborated by evidence of PW 9 Shantabai. According to her on the day of the incident she was collecting cow-dung near Manmodya hill at about 11 a.m. She saw the accused and the deceased going towards the hill. In the cross-examination it is tried to be suggested to her that her financial position was sound and, therefore, there was no reason for her to collect cow-dung on Makarsankrant day. We find no substance in this submission. PW 9 Shantabai has stated that she was being maintained out of the amount of pension which her husband was getting. This does not mean that Shantabai came from an affluent family. There is nothing abnormal in finding a village woman collecting cow-dung in the morning. She knew both, the accused and the deceased. We accept her evidence to the effect that she saw the accused and the deceased going towards Manmodya hill on 14th January, 2002 at about 11 O'clock in the morning.
29. The third witness who had seen the accused and the deceased is PW 6 Khanwar Hussein. He is also a resident of Barav. He has stated that on 14th January, 2002 at 11 to 11-15 a.m. he was offering water to his cattle from the cistern of one Sangale. At that time he saw the accused and the deceased proceeding towards the hill. We find evidence of this witness reliable. It is significant to note that he has stated that he was offering water to his cattle from the distern of Sangale. PW 8 Jayshree has also stated that she and the deceased were going towards the borewell of Sangale and that accused met them when they were proceeding towards their house after collecting water. Therefore, the claim of Khanwar Hussein that he had seen the accused and the deceased is true. He must have seen them near the borewell of Sangale. The statement of this witness is recorded on 15th January, 2002 i.e. immediately after the incident.
30. It was argued by the learned counsel for the accused that this witness cannot be relied upon because he did not tell anybody that he had seen the accused and the deceased on 14th January, 2002. We find no substance in this argument. In a village the deceased going with the accused to the hill with a sickle in her hand is not a circumstance which would have registered in his mind as of any significance. It appears from his evidence that on 15th January, 2002 he had reached Pune at about 8-45 a.m. He came to Junnar at about 2 p.m. Thereafter his statement seems to have been recorded. Therefore, not much importance can be given to the fact that on 14th January, 2002, this witness has not told anybody that he had seen the accused and the deceased going towards the Manmodya hill.
31. PW 7 Yashodabai Mahadev Gaikwad, grandmother of the deceased has also confirmed that the deceased and the accused had gone together to the hill on 14th January, 2002. She has stated that on that day the deceased and Jayshree had gone towards borewell at about 11 O'clock to fetch water. She was preparing food. The accused took the deceased along with him at about 11 to 11-30 a.m. by telling her that he would give her fuel wood. She came to know about this fact from Jayshree. The deceased did not return home. At about 4-30 p.m. PW 1 Sushila came home. She told Sushila that the deceased had gone with the accused and had not come home. Thereafter they started searching for the deceased. She lodged missing report about the deceased which is at Exhibit-27 in which she stated that at 11 a.m. on 14-1-2002 the deceased had left with the accused because the accused told her that he would give her fuel wood.
32. The evidence of PW 6 Khanwar Hussein, PW 8 Jayashree and PW 9 Shantabai unmistakably establishes that on 14th January, 2002 between 11 a.m. to 11-30 a.m. the deceased and the accused had left for Manmodya hill. The evidence of PW 1 Sushila and PW 7 Yashodabai also supports this case. It is important to note that in the missing complaint lodged by PW 7 Yashodabai Exh.27, and in the complaint lodged by PW 1 Sushila Exh.12, which are prior in time to the lodging of the F.I.R. by PW 1 Sushila, it is specifically stated that the deceased had left the house with the accused. Therefore, this is not an afterthought. We find the evidence of these witnesses consistent. It inspires confidence. We feel that there is no reason for them to falsely implicate the accused. Therefore it is established that the deceased was last seen in the company of the accused.
33. In Joseph's case (supra) the deceased was an employee of a school. She was taken away by the accused from the school under a false pretext. He took her to a desolate place, raped her, robbed her and laid her on the rail track to be run over by a passing train. Instead of explaining these circumstances, the accused totally denied everything. The Supreme Court held that such denial provided the missing link to connect the accused with the crime.
34. In Sahadevan's case (supra) the Supreme Court was considering a case of murder based on circumstantial evidence. The deceased was last seen in the company of the accused till at least 5 p.m. on the day in question, when he was brought to his house and thereafter his dead body was found on the next day. The Supreme Court observed that it was obligatory on the accused to satisfy the court as to how and where and in what manner the deceased parted company with the accused. The Supreme Court further observed that this is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In that case the accused had failed to discharge this burden. In their statement under Section 313 of the Code they had not taken any specific stand. The Supreme Court held that adverse inference will have to be drawn against the accused. In our opinion, these judgments are clearly applicable to the present case. The accused has not stated as to when he parted company with the deceased. On the contrary he has falsely denied that he had ever gone with the deceased. He has put up a false plea of alibi. Adverse inference must therefore, be drawn against him.
35. Another important circumstance which is proved by the prosecution is the discovery of a penknife at the instance of the accused. PW 3 Subhash Visave is panch to the said panchnama. He has stated that on 17th January, 2002, the accused made a statement that he would produce one penknife which he had buried near the stem of a tree. The said memorandum is at Exhibit 16. Pursuant to the statement made by the accused, the police proceeded towards the brick kiln, which is situated near Junnar. The accused produced a penknife from a Neem tree. This panchnama is at Exhibit 17. There is slight discrepancy regarding the description of the tree. In the examination-in-chief he has described it as a Neem tree whereas in the cross-examination he has described it as a Bori tree. However, both, in memorandum Exhibit 16 and in panchnama Exhibit 17 the tree is described as Bori tree. We, therefore, feel that this slight discrepancy in the description of the tree does not have any adverse impact of the prosecution case. Moreover investigating officer PSI Bhosale has also stated that at the instance of the accused a penknife was discovered from the grass near a Bori tree on 17th January, 2002.
36. Relying on the evidence of PW 2 Chandrakant Kadam who is the pancha to the scene of offence panchnama, it was contended that the discovery evidence should be disbelieved. Stress was laid on the following statements of Chandrakant Kadam. In the English version of the examination-in-chief he has stated :
"I found one penknife which was inserted in her stomach."
In order to ascertain whether the deposition is correctly translated, we had a look at the original Marathi version. In the original Marathi version the above sentence reads as under :
ucr |scnle¢s ^sl heË|ns lr Dxoeps o|e bÔee_¢r cevcf[s [fxij ÈsÙf h[nsns |fls ¢ekt ËlèÈe hfJel ×eghmns |fls.¿
It appears from the Marathi version that what this witness wanted to convey was that the deceased was stabbed with a knife and not that there was a knife inserted in her stomach.
Further in the original Marathi cross-examination this witness has stated as follows:
u|s µ|²e²f ×ejs Ëv. 13 c±Ès Dms ËnË|nsns ve|r kr |scnle¢s hfJel ×eghmnsne |fle. lf èeekt ceAÈe mc
This portion is erroneously translated as under :
"It is not true to suggest that in panchnama Exh.13 it has not been mentioned that penknife was inserted in the stomach of Hemlata. The penknife was not attached in my presence on 15-1-2002".
In our opinion, the correct translation would be as follows :
"It is true that in Exh.13, it is not stated that (a knife) was inserted in Hemlata's stomach. That knife was not attached in my presence on 15-1-02" (the words "a knife" supplied as the translation in incomplete without it)".
Perhaps to clear doubts the learned Judge asked him the following question :
"Since you have stated that, you found one penknife, inserted in the stomach of deceased Hemlata then as to why the same has not been attached on that day".
He has answered the Court question as under :
"According to me, I did not see penknife which was inserted in the stomach of Hemlata. In my opinion, there was an injury towards stomach and intestine had protruded."
37. The answer given by this witness to the court question, in our opinion, should put all doubts to rest. We find no difficulty in relying on the evidence of discovery of penknife at the instance of the accused. This discovery assumes importance because C.A. report shows that human blood of 'O' group was found on it. As per C.A. report Exh. 59 dried leaves collected from the scene of offence (A-1) and frock of the deceased (B-1) had blood stains of 'O' group. Therefore, the blood group of deceased is "O" . Blood group of the accused is "A". Finding of blood of 'O' group on the penknife, in our opinion, is a clinching circumstances.
38. After the incident, the accused was absconding. He was arrested on 17th January, 2002. PW 14 PSI Bhosle has stated that he found the accused hiding in the sugarcane crop of one Gaikwad and he arrested him from there. PW 16 PI Dilip Jagdale has stated that he attached the clothes of the accused on 18-1-2002 in the presence of panchas under a panchnama. PW 11 Shivaji Khandagale is the pancha to the said panchnama Exh.36. He has stated that the clothes of the accused were attached in his presence. There were blood-stains on his shirt and pant. He identified the accused's clothes shirt Art.11, pant Art.12 and underwear Art.13 when shown to him in the court. The C.A. report shows that blood group of the bloodstains found on the clothes of the accused could not be identified. But it was human blood. The accused has given no explanation as to how human blood was found on his clothes. The circumstance is also indicative of the accused's involvement in the crime.
39. In this connection it was argued by the learned counsel for the accused that as the blood group of the blood found on the clothes of the accused could not be identified this circumstances cannot be used against him. We find no substance in this argument. In State of Rajasthan Vs. Teja Ram & Ors. (1999)3 SCC 507, though it was not possible to establish whether the blood found on the weapon recovered at the instance of the accused was human, the Supreme Court observed that the effort of the criminal court should not be to prowl for imaginative doubts. The Supreme Court further observed that it cannot be said in all cases where there was a failure of detecting the origin of the blood, the circumstances arising from recovery of weapon would stand relegated to disutility. In the present case the facts stand on a better footing. Human blood is found on the clothes of the accused. In the attendant circumstances of the case, merely because the blood group could not be determined, the significance of finding of human blood on the clothes of the accused cannot be glossed over particularly when the accused has offered no explanation for it.
40. The fact that the accused was absconding and was found hiding in the sugarcane crop on 17th January, 2002 is also significant. In his statement under Section 313 of the code he has tried to take up the plea of alibi. He has stated that on the day of the incident he had gone to his daughter's house, then to Pansarewadi and then to his sister's house at Thane. He, however, did not lead any defence evidence in support of the plea of alibi. His plea is obviously false.
41. It appears that at the trial it was argued on behalf of the accused that he is not capable of sexual intercourse. This argument is absurd. The accused has admitted in his statement that he has children. Moreover that he is capable of sexual intercourse is stated by PW 17 Dr. Patankar, who had examined him. This submission must also fail.
42. It is necessary to deal with the submission of the learned counsel for the appellant based on Rahim Beg's case (supra) that absence of injuries on the genitals of the accused is not consistent with the prosecution case that the accused had raped nine year old girl. We have no hesitation in rejecting this argument.
43. In the facts before the Supreme Court the incident of rape had taken place on 3rd of August, 1969, and the accused was arrested on 4th August, 1969. He was examined on 5th August, 1969. So almost immediately after the incident, the accused was examined. It is under these circumstances that the Supreme Court observed that absence of injuries on the male organ of the accused would point to his innocence because the accused was full grown man and the deceased was a virgin. Such are not the facts here. In the present case the incident in question has taken place on 14th January, 2002 at about 11-30 in the morning. As per the evidence of Dr. Suresh Shahane the accused was examined on 19th January, 2002 at about 4.05 p.m. Therefore, he was examined after the lapse of about five days. So the injuries if any could have been healed. In our opinion, therefore, the judgment of the Supreme Court in Rahim Begs case (supra) will have to be confined to its own peculiar facts.
44. In the circumstances, we have no hesitation in coming to the conclusion that the accused is the perpetrator of the crime. The accused was last seen in the company of the deceased. He has not stated when he parted company with her. The deceased was not seen thereafter till her dead body was found on the hill raped, stabbed and strangulated to death. Penknife stained with human blood of 'O' group was recovered at the instance of the accused. The blood group of the deceased was 'O' and the blood group of the accused is 'A'. The accused was absconding. He was arrested three days after the incident from the field of sugarcane crop where he was hiding. Human blood was found on the clothes of the accused. The accused has offered no explanation for any of the circumstances. He took up a false plea of alibi which has become a link in the chain of circumstances which point unerringly to the guilt of the accused. The chain is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. All the established facts are consistent only with the hypothesis of the guilt of the accused and are inconsistent with his innocence.
45. Now the question is whether the death penalty awarded to the accused should be confirmed. The learned counsel for the appellant relied on Bishnu Deo's case (supra) where the Supreme court was dealing with a person who was sentenced to death for the murder of his son. The High Court while confirming the death sentence had observed that the appellant had previously murdered his wife suspecting her infidelity. The Supreme Court found that this observation of the High Court was based on vague evidence and that there were no special reasons justifying the imposition of death penalty.
46. We are of the opinion, that no parallel can be drawn between Bishnu Deo's case (supra) and the present case. That was a case of murder simplicitor. In this case a minor girl is brutally raped, stabbed and strangulated. It is a heinous crime.
47. Reliance placed on Kumudi Lal's case (supra) is also misplaced. In that case the appellant was convicted for offence punishable under sections 376 & 302 of the I.P.C. For the offence punishable under Section 302 of the I.P.C., he was sentenced to death. The Supreme Court observed that the circumstances indicated that probably the victim was not unwilling initially to allow the accused to have some liberty with her. The accused not being able to resist his urge for sex went ahead in spite of her unwillingness. The deceased started shouting. In order to prevent her from shouting the accused strangulated her. It is in these circumstances that the Supreme Court held that extreme penalty of death should not be imposed on the appellant. In the present case there is no question of the deceased being a willing party. She was just 9 years old and was taken on a false pretext by the accused to the hill. There he raped and killed her in a brutal manner. Kumudi Lal's case (supra) does not cover the case on hand.
48. Looking to the brutality and heinous nature of the crime, we are inclined to confirm the death sentence. We are persuaded to take this view by some judgments of the Supreme Court to which out attention has been drawn by the learned APP.
49. In Laxman Naik's case (supra) a seven year old girl was raped by the accused in a lonely place in a jungle. The case rested on circumstantial evidence. The circumstances which were established are as follows :
i) evidence of last seen together ;
ii) misrepresentation and false representation of the appellant as to the whereabouts of the deceased ;
iii) evidence relating to the injuries on the deceased; and
iv) discovery and seizure of incriminating articles.
The accused was sentenced to death. While confirming the death sentence the Supreme Court observed as under :
"The hard facts of the present case are that the appellant is the uncle of the deceased and almost occupied the status and position that of a guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant and while reposing such faith and confidence in the appellant must have believed in his bonafides and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the preplanned unholy designs of the appellant. The victim was a totally helpless child there being no one to protect her in the desert where she was taken by the appellant misusing her confidence to fulfill his lust. It appears that the appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act."
"The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment and consequently the sentence of death imposed upon the appellant for the offence under Section 302 must be confirmed."
50. In Dhananjay Chatterjee alias Dhana Vs. State of West Bengal, 1994(2) SCC 220 a young girl of 18 years of age was raped and murdered by the Security Guard of the building. The Supreme Court confirmed the death sentence by holding that "The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of society. The savage nature of the crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case. A real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenceless young girl of 18 years, by the security guard certainly makes this case "a rarest of the rare" case which calls for no punishment other than the capital punishment."
51. In Kamta Tiwari Vs. State of M.P., (1996)6 SCC 250 an innocent hapless girl of seven years was raped by a person who was in a position of her trust. The Supreme Court maintained the death sentence by observing that there were no mitigating circumstances but found aggravating circumstances aplenty. The following observation of the Supreme Court may be quoted.
"When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a "rarest of rare" cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crimes."
52. We may also refer to decision of the Supreme Court in Molai & Anr. Vs. State of Madhya Pradesh, 2000 ALL MR (Cri) 355. This was a case where a 16 years old girl was preparing for her 10th examination in her house, was raped and thereafter murdered by strangulating her by using her under-garment. Her body was then dumped in the septic tank. The Supreme Court held that there were no mitigating circumstances and it confirmed the capital punishment.
53. In State of Maharashtra Vs. Bharat Dahiwala, 2002 Cri.L.J. (SC) 218, a three years old girl was raped and murdered. The Sessions Court had sentenced the accused to death but the High Court had acquitted him. After considering the evidence, the Supreme Court observed that the case was perilously near the region of rarest of rare cases as observed by the Supreme Court in Bachan Singh Vs. State of Punjab, (1980)2 SCC 684. However, since the High Court had acquitted the accused, the Supreme Court in the circumstances imposed a sentence of life imprisonment.
54. The case on hand has all that is required to place it in the category of rarest of rare cases. The deceased was just 9 years old. She came from a poor family. The deceased, her two sisters and their grandmother were being maintained by the deceased's mother who was working as a maid. The father of the deceased had deserted them. The deceased was thus a vulnerable young girl. The accused was her neighbour. The deceased used to sometimes give him bread. The relations between the accused and the family of the deceased were cordial. The deceased thus trusted the accused. The accused took advantage of this situation. He took her to a desolate place in the jungle on the pretext of giving her fuel wood. There he raped her and stabbed and strangulated her to death. The postmortem notes indicate the brutality of the crime. There were several injuries on the deceased. Three of her ribs were broken. After committing the crime the accused absconded. To such a person death penalty is rightly awarded. We find no mitigating circumstances to give a lesser punishment.
55. In the circumstances, we dismiss the appeal filed by the appellant-accused Shivaji @ Dadya Shankar Alhat and confirm the judgment and order dated 27th June, 2003 passed by the II Addl. Sessions Judge, Pune in Sessions Case No.290 of 2002 convicting him under Sections 302, 376(2)(f) of the I.P.C. We confirm the sentence of death imposed on appellant Shivaji @ Dadya Shankar Alhat for offence under Section 302, IPC. We also confirm his sentence to suffer R.I. for a period of 10 years and to pay a fine of Rs.3,000/-, in default to suffer one year R.I. for the offence punishable under Section 376(2)(f) of the I.P.C.
57. At this stage, Mr. Apte, learned counsel appearing for the appellant says that the operation of this judgment be stayed. In the circumstances, we stay the operation of this judgment for a period of six weeks. We stay the sentence of death for a period of six weeks.