Criminal Appeal No. 460 of 2008

15th April, 2013

Petitioner Counsel: Mrs. B.P. JAKHADE
Respondent Counsel: Mrs. SHILPA GAJARE-DHUMAL

Cases Cited:
State of Rajasthan Vs. Kashi Ram, 2007 ALL MR (Cri) 286 (S.C.)=(2006) 12 SCC 254 : AIR 2007 SC 144 [Para 7]
Madi Ganga Vs. State of Orissa, AIR 1981 SC 1165 [Para 10,18]
Subramanian Goundan Vs. State of Madras, AIR 1958 SC 66 [Para 18]

JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- The present appeal is directed against the judgment and order dated 24.10.2007 passed by the Additional Sessions Judge, Pune in Sessions Case No. 457 of 2005. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 302 and 376 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 1000/- IDRI for one year on each count. The appellant is further convicted under Section 201 of IPC and sentenced to R.I. for seven years and fine of Rs. 100/- IDRI for six months. The learned Sessions Judge directed that the substantive sentences of imprisonment shall run concurrently.

2. The prosecution case briefly stated, is as under:

(a) PW 1 Krishna, the father of the victim girl was residing at Chaptewadi, Tal. Ambegaon, Dist. Pune. He had four daughters and one son. One of the daughters was the victim girl who was aged about 11 years at the time of the incident. The other daughter was PW 2 Jayashree. The appellant is the cousin of PW 1 Krishna i.e he is the son of his paternal aunt. The appellant was residing in the same village along with his wife PW 6 Asha.

(b) On 15.02.2005, after returning from school, the victim girl, her sister PW 2 Jayashree and brother Samir were playing in the courtyard. The appellant came to their house in the evening. He then took the victim girl towards the hill by telling that he would pay money for sweets. He took her to Gabari Jungle. Thereafter, neither the victim girl nor the appellant returned home.

(c) It is the prosecution case that after the appellant took the victim girl to the jungle, he committed rape on her and then he throttled her and caused her death. The dead body of victim girl was found on the next day i.e on 16.02.2005. PW 1 Krishna lodged FIR. Thereafter, investigation commenced. The appellant came to be arrested. At the time of his arrest, the shirt and baniyan of the appellant were found blood stained. They came to be seized under panchnama (Exh. 37) in presence of panch witness PW 5 Sambhaji. After completion of investigation, charge sheet came to be filed.

3. Charge came to be framed against the appellant under Sections 302, 376(2)(f) and 201 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal.

4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant committed rape on the victim girl and thereafter, he caused her death by throttling her.

5. There is no eye witness in the present case and the case is based on circumstantial evidence. The circumstances are as under:-

i. Last seen which has been deposed by PW 2 Jayashree.

ii. At the time of arrest, baniyan and shirt of the appellant were found to be blood stained. They were seized under panchnama (Exh. 37).

iii. The CA report shows the shirt of the accused was found to be stained with semen as well as blood of 'B' group. As per CA report (Exh 22), the blood of the deceased was of 'B' group.

iv. Motive.

v. Judicial confession (Exh 44) made by the appellant wherein he confessed that he had raped and murdered the victim girl.

6. As far as the first circumstance is concerned, PW 2 Jayashree who was the sister of the victim girl has deposed on this aspect. She has stated that on 15.02.2005, after returning from school, she, her sister i.e the victim girl and her brother Samir were playing in the courtyard. At that time, the appellant came and met them. The appellant took the victim girl towards the hill by saying that he would pay money for sweets. He took her towards Gabari Jungle. Thereafter, neither the victim girl nor the appellant came back.

7. The evidence of PW 2 Jayashree shows that the deceased was last seen alive in company of the accused. In such case, the accused has to explain how the victim girl died. In this connection, we may refer to Section 106 of the Evidence Act. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlies Section 106 of the Evidence Act can be applied in the context of the last seen theory when certain facts are especially within the knowledge of a person. In the State of Rajasthan Vs. Kashi Ram (2006) 12 SCC 254: (AIR 2007 SC 144) : [2007 ALL MR (Cri) 525 (S.C.) : 2007 ALL MR (Cri) 286 (S.C.)], the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.

8. It is pertinent to note that the appellant was residing in the same village but after he took away the victim girl, he did not return back to his house or to the village and he came to be arrested on the next day. At the time of arrest, the shirt on his person was found blood stained. This shirt was sent to CA and as per the CA report, the shirt of the accused was found to be stained with semen as well as blood of 'B' group. As per CA report (Exh 22), the blood of the deceased was of 'B' group.

9. Motive for the crime has been brought out through the evidence of PW 3 Dr. Kasabe who conducted the postmortem on the dead body of the victim girl. His evidence shows extensive injuries on the private part of the victim girl which shows the motive for the offence was to satisfy sexual lust of the appellant. While performing the postmortem, Dr. Kasabe found the following injuries on the dead body of the victim girl:-

1) Contusion (bluish black) over right cheek 1 x 1 cm

2) abrasion over the left shoulder, 3 number, 1 1/2 x 1 cm approximately.

3) diffuse contusion over front and right side of the neck 5 cm x 4 cm (bluish black) colour present.

4) linear abrasion over left side lower aspect neck 3 1/2 cm

5) abrasion (multiple) over right side neck, 2 to 3 1/2 cm approximately.

6) contusion over chest below medial end of left clavicle 1 1/2 x 1 cm

7) two abrasion over chest upper sternal region 1/2 x 1 cm

8) contusion on chest below left clavicle 1 1/2 x 1 1/2 cm

9) three minute abrasions over right wrist approximate 1/2 cm each.

10) two linear abrasions over right scapular region 1 1/2 to 2 cm each approximately.

11) reddish ecchymosis on inner sides of vagina, mucosal aspect.

12) three clean cut ruptures of the hymen.

In the opinion of Dr. Kasabe, the victim girl died due to asphyxia due to throttling with alleged rape. In his opinion, the injuries sustained by the victim girl are sufficient in the normal course of nature to cause the death. According to him, injury Nos. 1 to 9 are possible due to resistance and assault, injury Nos. 11 and 12 are possible by forcible penetration during sexual intercourse and injury Nos., 3, 4 and 5 are possible due to throttling.

10. The last circumstance on which the prosecution has relied is judicial confession (Exh. 44) made by the appellant to the Magistrate. No doubt, the Magistrate who recorded the confession has not been examined, however, in the case of Madi Ganga Vs State of Orissa AIR 1981 SC 1165, the Supreme Court has held that Section 80 of the Evidence Act makes the examination of the Magistrate to prove the confession recorded by him unnecessary. It authorizes the court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law. Where the Magistrate had put to the accused all the necessary questions to satisfy himself that the confession was voluntary and he had also appended the necessary certificate, it could be rightly acted upon without examining the Magistrate in absence of any circumstance justifying the calling of the Magistrate as a witness.

11. It is pertinent to note that before the confession was pressed into service by the prosecutor, the prosecutor applied to admit the confession in evidence under Section 80 of the Evidence Act. The say of the accused was invited. Despite the same, the accused did not file the say and did not take any objection for admitting the confession in evidence. In other words, the accused did not oppose the admission of the confession in evidence and it is in these circumstances that the confession has been admitted in evidence under Section 80 of the Evidence Act. So, the learned Advocate for the accused cannot now urge that the answers recorded in the memorandum are not the answers given by the accused, especially in view of the answers of the appellant accused in his statement under 313 Cr.P.C. that it is true that his confessional statement was recorded.

12. We do not accept Mrs. Jakhade's submission that the Magistrate should have been examined as a witness. Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorizes the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law. Mrs. Jakhade submitted that if the Magistrate had been examined as a witness, the accused might have been in a position to show by crossexamination that the confession recorded by the Magistrate was not voluntary. The Magistrate has appended a certificate that he was satisfied that the confession was voluntary. No circumstance has been brought out in the evidence justifying the calling of the Magistrate as a witness. We do not think that the circumstances of the case justify any comment on the alleged failure of the prosecution to examine the Magistrate as a witness.

13. When one looks at the confession Exh. 44, it is self-sufficient to prove that the accused was produced before the Magistrate on 24.02.2005 at about 11.30 a.m. The learned Magistrate had given him proper understanding that he was a Magistrate and different from the police. He also made the accused aware of the fact that accused was not in police custody or under the control of the police. When the accused showed his willingness to confess, the Magistrate put him on guard by telling that there was no compulsion and he was not bound to make the confession. The accused was also told that if he would confess, then the confession could be used against him. The Magistrate has also taken care to get it ascertained from the accused that the accused was not under any threat and he was not lured by any false promise to give the confession. The memorandum recorded by the Magistrate in question and answer form shows that, the accused wanted to confess because he committed the offence of rape and murder. Hence, the Magistrate gave him four days time to reflect i.e till 28.02.2005. Though the Magistrate directed the production of accused on 28.02.2005, it appears that on 02.03.2005, he recorded the confession of the accused. So, it becomes clear that on the 6th day, the Magistrate recorded the confession of the accused. So, this period of six days was used by the accused to reflect. That the accused confessed after this long period of six days indicates that the accused was determined to give the confession.

14. On 02.03.2005 also, the Magistrate has put questions to the accused to get it ascertained that the time given to the accused for reflection was sufficient. The accused understood the fact that he was not bound to make the confession and if he confessed, it would be used against him. The Magistrate has also re-ascertained the fact that he was not under the threat of the police or anybody else nor there was any promise or lure to give the confession. After that the accused told the Magistrate that he wanted to give the statement voluntarily and thereafter, the Magistrate recorded the statement of the accused.

15. The confession recorded by the Magistrate shows that the Magistrate was convinced that the accused gave the confession voluntarily because on the very first day when the accused was produced after his arrest, the Magistrate inquired with the accused as to whether the accused had any complaint of ill- treatment. At that point of time itself, the accused on his own told the Magistrate that he committed the offence of rape and murder. Not only that, on 24.02.2005 also, when he was produced for recording the confession, he made voluntary statement that he would give the confession. More than sufficient time was given by the Magistrate to the accused to reflect and therefore, the Magistrate had certified that the accused gave the confession voluntarily.

16. In this case, we find that the Magistrate has given a period of six days to the accused to reflect. Not only that, the Magistrate has asked the accused so many questions to get it ascertained that he was not under the threat of anybody or lured by anybody to give a confession. The accused was also put on guard that it was not obligatory on the part of the accused to make the confession. He was also given to understand that if he made a confession, it would be used against him. So, the Magistrate has ascertained the fact that the accused gave confession voluntarily. The Magistrate has given the certificate to that effect by assigning the reason as to why he felt that the confession was voluntary. Considering this aspect of the matter, we find no procedural flaw in the confession relied by the prosecution in this case. We find that the proper procedure has been followed while recording the confession of the accused. The accused has voluntarily given the confession and therefore, we do not find any impediment in reading the same in evidence.

17. The Magistrate had also taken the care while recording the confession by removing the police officials from the court hall. However, the Magistrate had recorded the memorandum in English language. So the learned defence lawyer Mrs. Jakhade has argued that the accused is a person, who does not know English and hence, the memorandum recorded by the Magistrate referred to above is improper and also false. According to her, the accused did not give the answers to the questions recorded by the Magistrate. It is pertinent to note that when the statement of the accused was recorded under Section 313 of Cr.P.C., the accused has not disputed the fact of recording of his statement by the Magistrate. The only grievance of the accused was that he was tortured by the police and so he gave the said statement which stand in the light of the evidence is palpably false. It is pertinent to note that the Magistrate, who recorded the statement was a Judicial Magistrate recording confessions. It is a matter of practice that the memorandums are recorded in English. Therefore, when there is no case of the accused that no such questions were put to him by the Magistrate, mere submission of the advocate is not sufficient at the stage of the argument to hold that the answers recorded by the Magistrate in English in those memorandums had not been given by the accused.

18. The final submission of the learned Advocate was that even if the confession to the Magistrate was accepted as voluntary, it had not been sufficiently corroborated to justify the conviction of the accused. It is now well settled that in order to sustain a conviction on the basis of a confessional statement, it is sufficient that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. It has been held in the case of Subramanian Goundan Vs State of Madras AIR 1958 SC 66 that general corroboration is sufficient. So also, as per the case of Madi Ganga (supra), the general corroboration is sufficient to sustain conviction on the basis of the confession. In the present case, we find that the confession is corroborated by the evidence of PW 2 Jayashree who has stated that she last saw the appellant taking away her sister i.e the victim girl to Gabari Jungle. Thereafter, the appellant and her sister were not seen. That the appellant committed rape on the victim girl is corroborated by the evidence of PW 3 Dr. Kasabe. The fact that the appellant thereafter strangulated the victim girl is also borne out by the evidence of PW 3 Dr. Kasabe. That the rape and murder of the victim girl took place is also corroborated by the evidence of PW 7 Yashwant who is the panch witness to inquest panchnama. That the appellant was predisposed towards womanizing is corroborated by his wife PW 6 Asha. This shows the inclination of the appellant. Injuries were found on the body of the appellant which has been deposed by PW 4 Dr. Thorat. The fact that the injuries were found on the body of the appellant also corroborates the fact that he has taken part in the incident. Thus, we find that there is sufficient general corroboration to the judicial confession Exh. 44.

19. On going through the record, we are of the opinion that there is enough evidence on record to connect the appellant with the crime of rape and murder of a minor girl. Thus, we find no merit in this appeal, hence, the following order:-

ORDER

i. Appeal is dismissed.

ii. Office to communicate this order to the concerned prison Authorities and to the appellant who is in jail.

20. At this stage, we must record our appreciation for Advocate Mrs. B.P. Jakhade who by the High Court Legal Services Committee was appointed to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at ' 2400. The said fees be paid to her within four months from today.

Appeal dismissed.