Bombay High Court
The State Of Maharashtra vs Shankar S/O Krisanrao Khade on 27 June, 2008
Author: A.P.Lavande
Bench: A.P.Lavande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Confirmation Case No. 1 of 2007
The State of Maharashtra
Through P.S.O. Asegaon
Tq. Chandur Bazar,
Distt. Amravati.
... Appellant
.versus.
Shankar s/o Krisanrao Khade,
R/o: Bhamod, Tah. Daryapur
(Now residing at Asegaon)
Tq. Chandur Bazar,
Distt. Amravati.
... Respondent
----------------------------------------------------------------------------------------------------------------------
Mr. S. Doifode, A.P.P. for the Appellant.
Mr. R.M.Daga, Advocate for the respondent.
----------------------------------------------------------------------------------------------------------------------
Criminal Appeal No. 512/2007.
Shankar Krisanrao Khade, Aged about 55 years, Occupation: Labourer.
R/o: Bhamod, Tah. Daryapur.
Distt. Amravati
(In Jail) ....Appellant.
.versus.
The State of Maharashtra,
through P.S.O. Asegaon,
Distt. Amravati.
.....Respondent.
------------------------------------------------------------------------------------------------------------------- Shri R.M.Daga, Advocate for the appellant.
Shri S. Doifode, A.P.P. for the respondent.
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Coram : A.P.Lavande & A.B.Chaudhari, JJ
Date of Reserving Judgment : 10.04.2008
Date of pronouncement of Judgment: 27.06. 2008
Judgment (Per A.P.Lavande,J)
Confirmation Case No. 1/2007 and Criminal Appeal No. 512/2007 are being disposed of by common Judgment since they arise out of the Judgment and order dated 3.11.2007 passed by the Ad hoc Additional Sessions Judge, Achalpur in Sessions Trial No. 165/2006.
2. The Appellant is accused no.1 and his wife Sau. Mala Shankar Khade is accused no.2 in Sessions Trial No. 165/2006. By the impugned judgment and order the appellant has been convicted and sentenced as follows:
Section Sentence
302 I.P.C. Sentenced to death.
376 I.P.C. Imprisonment for life and to pay a fine of
Rs. 1000/- in default to suffer rigorous
imprisonment for six months.
366 A I.P.C. 7 years rigorous imprisonment and to pay a
fine of Rs. 500/-, in default to suffer rigorous
imprisonment for three months.
363 read with Rigorous imprisonment for 5 years and to pay a
Section 34 I.P.C. fine of Rs. 500/-, in default to suffer rigorous
imprisonment for one month.
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3
3. The accused no.2 has been convicted for the offence punishable under Section 363 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 500/- and in default to suffer rigorous imprisonment for one month.
4. Accused no.2 Mala has not preferred any appeal challenging her conviction and sentence.
5. Both the accused have been acquitted for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code. The accused no.2 has been also acquitted for the offence punishable under Sections 302 read with Section 34 and 109 of the Indian Penal Code.
6. Briefly, the prosecution case is as under:
Deceased, daughter of Dipak Wankhede was living with her grand mother Parvati Khandare (P.W.13) and Gunwant Khandare in Gunwant Maharaj Sansthan at Lakhanwadi. On 20.7.2006 in the evening both the accused came in the Sansthan and stayed there. The deceased while playing met both the accused. The appellant offered mango and other sweet-meat to her. On 21.7.2006 at about 8 a.m. again deceased while playing came towards both the accused. The appellant offered sweetmeat to her and at that time the deceased was in school uniform. At about 12 ::: Downloaded on - 09/06/2013 13:31:47 ::: 4 O'clock both the accused induced her to come with them.
7. Some ladies in Sansthan disclosed to Parvati Khandare that one male and one female gave sweetmeat to deceased and had taken her towards the place of Puja (Dhuni). Since the deceased was missing Parvati went to her village Madhan and disclosed to her son Ramesh that the deceased was missing. In spite of extensive search by Ramesh, deceased could not be traced. According to the prosecution, both the accused took deceased to weekly market at Paratwada and stayed there. It is further the case of the prosecution that in the night the appellant committed rape on her. The deceased was taken by both the accused to Gayatri Mandir at Paratwada Dharni where they stayed on 22.7.2006. There also the appellant committed rape on the deceased. On 23.7.2006 both the accused along with deceased went to the house of Ravindra Lavate (P.W.8). During the night accused no.2 Mala was in the house and appellant along with deceased were sleeping in the Varanda. Ravindra heard the minor girl (deceased) weeping and as such came to see and found that the appellant was committing rape on that girl. Ravindra and his wife objected to it. Thereafter the appellant took deceased on bicycle in the field bearing no. 62 of Shantaram Jawarkar at about 9 p.m. of 23.7.2006. The appellant committed rape on her and by pressing her neck committed her murder.
8. Vinod Jaswarkar (P.W.14) with Sanjay (P.W.9) went to the field and observed dead body of the girl. Sanjay (P.W.9) approached the Police Station, ::: Downloaded on - 09/06/2013 13:31:47 ::: 5 Asegaon and submitted report (Exh.48) about the incident. Shalikram Jawarkar (P.W.1) the Police Patil of Naigaon informed the A.P.I., Devsing Baviskar (P.W. 18) on phone that the dead body of the girl was lying in the filed of Shantaram Jawarkar.
After making entry in station dairy, A.P.I., Devsing Baviskar went to the place of occurrence with panchas , staff and photographer. He observed that the minor girl was raped and murdered by pressing her neck. He also found that the girl was wearing white shirt and frock of green colour. He prepared the spot panchanama (Exh. 58) in presence of the panchas. He also seized articles found on the spot under the seizure panchanama (Exh.59). The inquest panchanama (Exh.16) was also prepared and the dead body was forwarded for post-mortem examination. Dr. Mohan (P.W.3) conducted post-mortem examination on the dead body of the deceased and submitted report (Exh.85) and registered crime. Letter was issued to the police patil of the village about the deceased and information about the deceased was sought.
Ramesh (P.W.12) came to Asegaon Police Station and informed that his sister's daughter was missing since 21.7.2006. The dead body was identified by Ramesh, uncle of the deceased vide panchanama (Exh.12).
9. Dr. Kewade after conducting post-mortem examination came to the conclusion that the deceased was raped and murdered. He also opined that the deceased was subjected to carnal intercourse. He observed that the death was due to asphyxia due to strangulation. Dr. Mohan Kewade issued post-mortem report (Exh.25). A.P.I., Devsing Baviskar recorded the statements of several witnesses and ::: Downloaded on - 09/06/2013 13:31:47 ::: 6 arrested both the accused on 2.8.2006. While in custody the appellant made certain statements pursuant to which the memorandum statements were recorded and certain articles were seized at the instance of the appellant. The Sub Divisional Magistrate, Achalpur held identification parade. The articles seized were sent for analysis and chemical analyser's reports (Exh. 91 to 93) were received. The Investigating Officer also collected the handicap certificate (Exh.94) of the deceased which disclosed that deceased was having moderate mental retardation. On completion of investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class, Chandur Bazar. The case was committed to the Court of Sessions. The charge initially framed was amended and charge was framed against both the accused under Sections 363, 366A, 376, 302 and 201 read with Section 34 of the Indian Penal Code. The prosecution examined in all 18 witnesses and relied upon several documents in support of its case.
10. The defence of both the accused was that of denial and false implication.
The accused did not examine any witness in support of their defence. The trial Court upon appreciation of the evidence led by the prosecution convicted and sentenced both the accused as stated above. Since the appellant/ accused no.1 has been sentenced to death for the offence punishable under Section 302 of Indian Penal Code, the trial Court made Reference to this Court under Section 366 of the Indian Penal Code. The appellant has also preferred appeal challenging his conviction and sentences.
::: Downloaded on - 09/06/2013 13:31:47 ::: 711. We heard Shri R.M.Daga, learned counsel for the appellant/accused and Shri S. Doifode, learned A.P.P. for the State.
12. During the course of hearing the prosecution has filed affidavit of Investigating Officer Devsing Baviskar to place on record the criminal record of the appellant in support of death sentence which shall be referred to at the appropriate stage. The learned counsel for the appellant was also given an opportunity to reply to the averments made in the said affidavit.
Mr. R.M.Daga, the learned counsel has made submissions in reply to the averments made in the affidavit filed by the Investigating Officer.
13. Mr. Daga, the learned counsel appearing for the appellant submitted that the evidence led by the prosecution does not establish beyond reasonable doubt the offences against the appellant for which he has been convicted and sentenced. He further submitted that the prosecution evidence does not establish that the appellant and his wife kidnapped the deceased or that the appellant raped the deceased and committed her murder. He further submitted that the dead body of the deceased was found on 24.7.2006 and having regard to the time between the date on which the appellant and his wife are alleged to have kidnapped the appellant, the appellant cannot be held liable for rape and murder of the deceased. He further submitted that the evidence of Ravindra Lavate (P.W.8) does not inspire confidence inasmuch as according to Mr. Ravindra Lavate (P.W.8) police had come to him 2-3 days after the accused has left his place but according to the prosecution the statement of Ravindra was recorded on 14.8.2006 which throws considerable doubt about the credibility of this witness.
::: Downloaded on - 09/06/2013 13:31:47 ::: 8He further submitted that the discoveries of several articles alleged to have been done at the instance of the appellant cannot be treated as discoveries under Section 27 of the Evidence Act since memorandum statements pursuant to which articles are alleged to have been recovered do not make any reference to these articles. He further submitted that the alleged recoveries of the articles are purported to have been done on 6.8.2006 i.e. about 4 days after the arrest of the accused and, therefore, they do not inspire confidence. He further submitted that the prosecution has not examined an important witness i.e. the wife of Ravindra (P.W.8) who according to the prosecution had seen along with Ravindra the appellant committing rape on deceased. He further submitted that the evidence of Ravindra also does not inspire confidence since no spot panchanama was conducted although Ravindra claims that deceased was raped by the appellant in the varanda of his house. He further urged that the entire prosecution evidence does not inspire confidence but on the contrary suggests that the prosecution has falsely implicated the appellant in the commission of ghastly crime.
14. In so far as the death sentence imposed by the trial court for the offence under Section 302 of the Indian Penal Code is concerned, Mr. Daga submitted that the case cannot be termed as rarest of rare and, therefore, imposition of death sentence is absolutely unwarranted. He further submitted that as the appellant has two major sons and he is aged about 55 years the imposition of death sentence is absolutely unjustified. He further submitted that there being no criminal record against the appellant and having regard to the principles laid down in Bachansing's case this is not a case in which the appellant deserves death sentence. According to him, the death sentence imposed on the appellant is absolutely ::: Downloaded on - 09/06/2013 13:31:47 ::: 9 unjustified and unwarranted. In support of his submissions, Mr. R.M.Daga, the learned counsel for the appellant relied upon the following authorities.
i) Bachan Singh vs. State of Punjab
AIR 1980 Supreme Court, 998;
ii) Balram Sharma vs. State of Chhatisgarh
2007(4) Crimes, 32;
iii) Mohd. Chaman vs. State
2001 SCC (Cri.) 278;
iv)
Surendra Pal Shivbalakpal vs. State of Gujrat
2005 Supreme Court Cases (Criminal), 653;
v) State of Maharashtra vs. Mansingh
2005 Supreme Court Cases (Criminal), 657;
vi) Amit @ Ammu vs. State of Maharashtra
2003 All MR (Criminal), 2327;
vii) State of U.P. vs. Desh Raj
2006 ALL MR (Cri) 2387; And
viii) State of Rajasthan vs. Kashi Ram
AIR 2007 SC 144.
15. Mr. Doifode, learned A.P.P. vehemently supported the Judgment and order of conviction and sentences passed against the appellant. He submitted that the conviction and sentences imposed on the appellant by the trial court are absolutely justified and call for no interference by this Court. He further submitted that the circumstantial evidence led by the prosecution proves beyond reasonable doubt that it is the appellant who along with his wife ::: Downloaded on - 09/06/2013 13:31:47 ::: 10 Mala kidnapped the deceased and it is the appellant who committed rape on the deceased and thereafter murdered her. According to Mr. Doifode, the learned trial Court was absolutely justified in holding that the circumstances against the appellant have been proved by cogent evidence by the prosecution and they unerringly point towards the appellant as the perpetrator of ghastly crime. He further submitted that the medical evidence clearly establishes not only rape and murder of the deceased but it also establishes that sodomy was committed on her. He further invited our attention to the fact that the charge sheet was also filed against the appellant under Section 377 of the Indian Penal Code but no charge was framed under Section 377 of the Indian Penal Code against the appellant though there was material available on record for framing the charge against the appellant.
16. In so far as the death sentence awarded by the trial court is concerned Mr. Doifode submitted that the appellant who is aged about 55 years and having two sons out of lust committed ghastly crime of rape on the deceased aged about 11 to 12 years who was having moderate mental retardation. According to Mr. Doifode, the appellant has subjected the deceased to rape on more than one occasion and thereafter committed her murder which establishes cruel and diabolic nature of the crime and, therefore, this is rarest of rare case justifying the imposition of death sentence on the appellant. Mr. Doifode placing reliance upon the affidavit of Investigating Officer, Devsing Baviskar submitted that the said affidavit clearly establishes that the appellant herein was arrested in Crime No. 18/06 for the offences under Sections 457 and 380 of the Indian Penal Code which was registered at ::: Downloaded on - 09/06/2013 13:31:47 ::: 11 Asegaon Police Station committed during the intervening night of 2.7.2006 and 3.7.2006. He further submitted that in connection with the said crime Criminal Case No. 264/06 is pending before the Judicial Magistrate, First Class, Chandurbazar against the appellant. Mr. Doifode placing reliance upon the said affidavit submitted that the appellant is also the accused in Sessions Trial No. 52/07 in which charge sheet has been filed against the appellant for the offence punishable under Section 302 of the Indian Penal Code for committing murder of his wife Chanda by assaulting her by stick on 4.10.1993. According to Mr. Doifode, the Sessions Trial No. 52/07 is pending against the appellant for the said offence. Mr. Doifode further submitted that the appellant has criminal record and considering the nature and manner in which offences have been committed in the present case the appellant deserves death sentence. In support of his submission that the appellant deserves death sentence Mr. Doifode relied upon the following authorities.
i) Shivu & another vs. R.G.High Court, Karnataka and another. 2007Cri. L.J., 1806, S.C. ii) Shri Mithu Kalita alia Mitu Kalita vs. Sate of Assam 2006 CrLJ 2570; iii) Bachan Singh vs. State of Punjab AIR 1980 SC, 898; iv) Machhi Singh & others vs. State of Punjab AIR 1983 Supreme Court, 957; ::: Downloaded on - 09/06/2013 13:31:47 ::: 12
17. Mr. Daga, in reply to the submissions made by Mr. Doifode in support of the death sentence more particularly by placing reliance upon the affidavit of Investigating Officer Devsing Baviskar filed in this court submitted that the prosecution ought to have relied upon those circumstances in the trial court inasmuch as they were very much available to the prosecution during the trial and, therefore, these circumstances cannot be taken into consideration in reference by the Sessions Court made or in the appeal filed by the accused against imposition of death sentence awarded by the trial court. Mr. Daga, further submitted that in any event there is no prior conviction recorded against the appellant and, therefore, imposition of death sentence on the appellant is uncalled for.
18. We have carefully considered the submissions made by the learned counsel for the appellant and learned A.P.P.. We have carefully perused the record and the authorities relied upon by both sides.
19. To prove the charges against the accused, the prosecution has relied upon the following circumstances.
i) On 20.07.2006 the accused went to Gunwant Maharaj Sansthan at Lakhanwadi and stayed there for one day along with accused no.2 and on 21.7.2006 took the deceased to dhuni.
::: Downloaded on - 09/06/2013 13:31:47 ::: 13ii) On 22.7.2006 accused took deceased to Gayatri Mandir.
iii) On 23.7.2006 the accused along with his wife and deceased went to the house of Ravindra Lavate (P.W.8) and stayed there.
iv) On 23.7.2006 at night the accused committed rape on
deceased.
v)
On 23.7.2006 during the night time the accused left on the bicycle with the deceased and on 24.7.2006 he came back to the house of Ravindra Lavate to take his wife accused no.2.
vi) False explanation given by the accused to Ravindra that he had dropped deceased at Lakhanwadi.
vii) On 24.7.2006 dead body of the deceased was found in the field of the father of Sanjay Jawarkar (P.W.9)
viii) Death of deceased was homicidal and that deceased was subjected to sexual intercourse on more than one occasion.
ix) Deceased was suffering from moderate mental retardation.
::: Downloaded on - 09/06/2013 13:31:47 ::: 14 x) Identification of the accused by the witnesses.
xi) Spot Panchanama and discovery of articles at the instance of
the appellant.
20. In order to prove the first circumstance the prosecution has relied upon the evidence of Ramrao Akolkar (P.W.10), Rajkumar Bobade (P.W.11), Ramesh Khandare (P.W.12) and Parvati w/o Gunwantrao Khandare (P.W.13). Ramrao Akolkar (P.W.10) who was present at Gunwant Maharaj Sansthan at the relevant time deposed that on 20.7.2006 at about 7.00 p.m. Shankar (Appellant) and his wife came to Mandir and stayed there in the hall of Mandir in the night. One girl aged about 11 years was staying with her grand father and grand mother for about one month but he did not remember the names. The said girl was mentally weak. He had seen the accused Shankar with the said girl in the Hotel of Panjabrao Bobade and at that time accused gave some eatables to her and at about 10 to 11 a.m. both the accused took the said girl towards Dhuni which is at the distance of 1000 ft. from Sansthan.
Thereafter, he did not see both the accused and the said girl. He further deposed that thereafter the girl was missing and, therefore, her grand father was searching her but she could not be traced out. He also stated that after about 8 days of arrest of both the accused he was called in Tahsil Office, Achalpur and he identified accused Shankar and he signed on Exh. 33. In the cross-examination, he admitted that the names of the persons who stayed in Sansthan were maintained in the Register but he ::: Downloaded on - 09/06/2013 13:31:47 ::: 15 had not brought the Register with him. He further deposed that when the accused took nasta in the hotel of Panjabrao Bobade which is near Santhan he was near the main gate of the Sansthan/Mandir. He further stated that if one sits in Chhapari he can not see the hotel of Panjabrao Bobade and the other things outside the compound wall of the temple. He further stated that daily about 100 to 150 persons used to visit the Mandir and he did not know them personally. He further stated that when he was in the shop of sansthan he observed both the accused and the girl going towards the hotel of Panjabrao. He further stated that he had not stated to the police that accused no.1 with the girl was in the hotel of Panjabrao as police had not asked him about it. He further admitted that along with the Tahsildar, Clerk and P.S.O. were present. He denied the suggestion that on 20.7.2006 both the accused had not come to the Sansthan nor accused Shankar had taken the girl in the Hotel of Panjabrao Bobade. Rajkumar Bobade (P.W.11) deposed that he was doing hotel business opposite Gunwant Maharaj Mandir, Lakhanwadi. On 20.7.2006 at about 7 p.m. one man and woman had come to his hotel and on the next day at about 1 p.m. the man and the woman had come with the girl aged about 10 to 11 years and went to small Mandir (Dhuni). He further deposed that after about 3 days, Police Station Officer had come to his hotel and had shown him a photo of the girl and asked him whether he could identify the girl. He identified the photograph as of the girl who was residing in the Mandir for about 4-5 months. He could identify the man and woman who took away the girl. He identified both the accused in the Court as the persons who had taken the girl with them. He further stated that the girl was wearing white ::: Downloaded on - 09/06/2013 13:31:47 ::: 16 shirt and green skirt. He identified Articles 2 and 3 as shirt and skirt as the same worn by the girl. In the cross-examination he admitted that daily about 100 to 150 visitors used to come to the temple and about 25 visitors used to visit his hotel daily.
He further stated that he had not engaged any servant in the hotel. He used to prepare tea and other articles and used to serve the customers. He was doing the hotel business from 6 to 10 p.m. daily. He deposed that he did not know whether the girl was kidnapped or not. He stated that the said person had disclosed his name as Shankar Khade. He admitted that prior to the incident he was not acquainted with both the accused. He denied that he had disclosed the names of both the accused as per the say of the police and that both the accused had not come to his hotel nor they had taken the girl with them. Ramesh Khandare (P.W.12) who is the uncle of deceased stated that Parvatibai was his mother and deceased was about 12 years old.
He had sent his father and mother to Gunvant Deosthan of Lakhanwadi and along with them deceased had also gone. On 23.7.2006 his mother came to his house at Madhan and informed that deceased was missing. Thereafter, he made search but he could not trace her. Then he came to know that the dead body was in the Hospital of Sub District Hospital, Achalpur. He went to the hospital and identified the dead body as that of deceased. He found marks on her neck. The custody of the dead body was given to him upon executing suparatnama. He identified his signature on suparatnama (Exh. 57). In cross-examination he deposed that about 15 days prior to the incident his parents had gone to reside at the Sansthan.. When his mother disclosed to him about missing of the deceased he did not go to the Sansthan. After ::: Downloaded on - 09/06/2013 13:31:47 ::: 17 reading the news of missing of his sister's daughter he went to the Police Station, Shirajgaon Kasaba. The Police at Paratwada disclosed to him that the dead body was in the Sub District Hospital, Achalpur. He stated that he had stated to the police that his parents had gone to the sansthan for a period of one and one fourth month.
However, the words "Savva Mahina" were omitted. He could not assign any reason why it was not mentioned in the police statement that deceased was 12 years old. He further denied that he was deposing falsely. The evidence of Parvatibai Khandare (P.W.13) discloses that at the time of the incident the deceased was about 10 years old and studying in 4th standard and her mental condition was weak. Five to six months before the incident she along with her husband had gone to Sansthan and about 5 to 6 days before the incident deceased had come to reside with them. She was informed by ladies in the sansthan that one male and one female had given sweetmeat to deceased and had taken her to place of Puja (Dhuni) and thereafter deceased was missing. She then came to Madhan and disclosed to Ramesh that deceased was missing. After observing photograph of deceased in newspaper she came to know about her murder. In cross-examination, she stated that she had not seen the male and female who had taken her grand daughter with them. He further stated that he had not submitted report about missing of Shilpa.
21. Upon scrutiny of the evidence of above witnesses, we have no hesitation to hold that some days prior to 20.7.2006 Parvatibai Khandare and her husband had come to Sansthan with the deceased on 20.7.2006 the accused along with his wife ::: Downloaded on - 09/06/2013 13:31:47 ::: 18 had come to the Sansthan and stayed there for one day and offered sweetmeat to the deceased and both the accused took the deceased along with them towards Dhuni.
Hence the first circumstance is proved.
22. In order to prove the second circumstance that the accused along with his wife took deceased to Gayatri Mandir, the prosecution has relied upon the evidence of Sundarbhan Dhurve (P.W.6) who deposed that on Paratwada - Gaurkheda Road there is Gayatri Mandir where he was working as a watchman for about one year. He further deposed that he was illiterate and about 10 months prior to his deposition which was recorded on 1.6.2007 he was in the Mandir at about 8 p.m.. At that time one lady and one man with a girl about 12 years old came there. The man was aged about 50 to 60 years and woman was aged about 40 years. Both of them stated that they wanted to stay in Gayatri Mandir. He did not permit them to stay in Mandir.
However, both of them along with the girl slept on one cot in Mandir and at about 6 a.m. they went away. He identified both the accused as the persons who had come to Gayatri Mandir. In the cross-examination he admitted that when the main gate of the temple was closed no one could enter the premises of the Mandir and that outsiders were not permitted to stay in the temple. He further stated that he had not seen the accused going out of Mandir. He stated that his statement was recorded as per his say. The witness was confronted with the statement in which he has stated that he had not stated at the time of statement that he had permitted them. The witness stated that the said statement was not correct and he could not assign any ::: Downloaded on - 09/06/2013 13:31:47 ::: 19 reason for the same. He denied the suggestion that his statement was not recorded by police. A close scrutiny of the evidence of this witness clearly suggests that about 10 months before 1.6.2007 both the accused along with the girl had come to Gayatri Mandir and had stayed overnight. There is absolutely no reason for us to disbelieve the version of this witness inasmuch as nothing has been brought on record as to why this witness should falsely state that both the accused along with a girl had come to the Mandir and stayed there. Thus, the second circumstance that both the accused along with a girl aged about 12 years (the deceased) had come to the temple and stayed there overnight is established.
23. The next circumstance relied upon by the prosecution is that on 23.7.2006 accused Shankar along with his wife had gone to the house of Ravindra Lavate (P.W.8) and stayed there overnight. To prove this fact, the prosecution has relied upon the evidence of Ravindra Lavate (P.W.8) who deposed that he was residing in Saraipura Achalpur since his birth. Prior to about 5 years of the incident accused Shankar was residing in his locality and, therefore, he knew him. Shankar was residing with his wife and sons. He identified both the accused present in the court. He further deposed that Santosh, the son of the accused was his friend and, therefore, he used to go to the house of the accused. Shankar sold his house and left Achalpur. He further stated that Shankar had come to his house on 19.6.2006 and his wife stated that both of them had come in the hospital as her relative was ill. She further stated that she should be permitted to stay in his house for the night. Accused ::: Downloaded on - 09/06/2013 13:31:47 ::: 20 no.2 stayed at his house during the night and accused no.1 Shankar went out to the house and next day he came and took his wife with him. After about 2 - 3 days i.e. on 23rd, both the accused came with the girl aged about 12 years in the house. She was wearing white shirt and green skirt. They all came on bicycle. Accused no.2 stated that they should be permitted to stay in the night as their relative was in the hospital. Accused Shankar and the girl were in the varandah of the house. Ravindra (PW-8) was watching TV programme. He was sleeping in the house along with his family members. At that time, he heard weeping of the girl and, therefore, he came in the varandah and observed in the electric light that accused Shankar was lying on the body of the said girl and was having sexual intercourse with her. He and his wife asked him to what he was doing. He asked him to take the said girl. Shankar took away the said girl on the bicycle and accused no.2 stayed in his house during the night. On the next day, accused alone came back to his house and took away accused no.2 with him. On inquiry accused told him that he had left the girl at Lakhanwadi. He identified the bicycle as the bicycle on which the accused had left.
He identified the bicycle on which accused had left along with the girl. He further deposed that after about 4-5 days police brought accused no.1 in his house and asked him to identify him. He identified the accused and his statement was also recorded by the Judicial Magistrate at Chandur Bazar. He identified Articles 2 and 3 as the cloths worn by the girl. In cross-examination, he stated that he did not observe that the girl was not related to the accused. The accused had come to his house at about 8 to 9 p.m. on 23rd. He further stated that there are houses adjacent to his house and ::: Downloaded on - 09/06/2013 13:31:47 ::: 21 there is a compound to his house, height of which is about 6 ft.. He stated that he did not know whether neighbours had heard the weeping of the girl. He stated that on hearing the weeping of the girl nobody from the neighbourhood had come to varandah. He did not obstruct the accused Shankar when he took the girl with him at about 9.50 p.m.. He further stated that the accused had not compelled the girl to sit on the cycle nor he had submitted the report about the incident to the Police Station.
He had also not inquired from accused no.2 about the details of the said girl. He denied the suggestion that there was load-shedding from 6 p.m. to 12 a.m. i.e. mid-
night of 23rd. He admitted that it was not mentioned in the police statement that he had asked the accused to go. He further stated that he had stated to the police that the son of the accused was his friend but he could not assign any reason why this part of the statement was omitted in his statement. He further denied that he was deposing as per the say of P.S.I. Baviskar. He further denied the suggestion that he did not know both the accused and their son Santosh. He denied the suggestion that the incident did not take place in his house or that both the accused had not come to the house and that he was deposing falsely. A close scrutiny of the evidence of this witness who knew both the accused since they were residing at Achalpur for some time clearly establishes that both the accused along with the deceased had come to his house and stayed in his house on 23.7.2006. The evidence also establishes that the accused Shankar along with the deceased were in the verandah and the witness saw the accused committing sexual intercourse with her and thereafter accused left along with the deceased on bicycle on which they had come. In so far as the attack made on ::: Downloaded on - 09/06/2013 13:31:47 ::: 22 the testimony of this witness on the ground that there was considerable delay in recording the statement which was recorded on 14.8.2006 is concerned we find that the same is not fatal to the prosecution case. This witness who knew the accused very well and claims that son of the accused was his friend has absolutely no axe to grind against the accused and it is very difficult for us to accept that he had invented story that on 23rd July, 2006 ( mentioned as 23rd June by the witness) both the accused along with the girl (deceased) came to his house and that he saw the accused committing sexual intercourse with her and that thereafter the accused left with the said girl on the bicycle. The fact remains that he knew both the accused very well as the son of the accused was his friend and, therefore, it was quite natural for him to give shelter to both the accused along with the girl. In cross-examination of this witness nothing tangible has been brought on record to discredit his testimony. The evidence of this witness inspires confidence. The evidence of this witness also establishes that on the next day i.e. on 24th the accused came alone and told this witness that he had left the girl at Lakhanwadi.
24. Upon close scrutiny of the evidence of Ravindra the circumstance that on 23.7.2006 both the accused along with the deceased came to his house and that the accused committed rape on the deceased at about 8 p.m. is clearly established. It is also established that the accused came to the residence of this witness on the next day and on inquiry told him that he had left the said girl at Lakhanwadi. This explanation is patently false inasmuch as there is cogent evidence on record that on ::: Downloaded on - 09/06/2013 13:31:47 ::: 23 24th itself the dead body of the deceased was found in the field of the father of Sanjay Jawarkar (P.W.9). Thus, the prosecution has been able to prove the circumstance numbers 3 to 6.
25. The seventh circumstance that on 24.7.2006 the dead body of the deceased was found in the field of father of Sanjay (P.W.9) is established by the evidence of P.W.9 Sanjay who stated that he was informed by Vinod Jawarkar that the dead body of a girl aged about 12 to 14 years was lying in his field. He, therefore, went to the field and noticed the dead body of the girl. At that time the police patil Shalikram (P.W.1) was also present. He lodged report (Exh. 48). There is also cogent evidence that the dead body was identified by Ramesh (P.W.12), the uncle of the deceased. Thus, the prosecution has been able to prove that the dead body of the prosecutrix was found in the field of the father of Sanjay (P.W.9) on 24.7.2006. It is also pertinent to note that there is no serious challenge that the body of the prosecutrix was found in the field of the father of Sanjay on 24.7.2006. This circumstance is also corroborated by spot panchanama. Therefore, the seventh circumstance stands duly proved.
26. The next circumstance relied upon by the prosecution is that the death of deceased was homicidal and that she was subjected to rape. To prove this circumstance the prosecution has relied upon the evidence of Dr. Mohan Kewade (P.W.3) who had conducted post-mortem on the dead body of the deceased. Dr. ::: Downloaded on - 09/06/2013 13:31:47 ::: 24 Mohan Kewade deposed that on 25.7.2006 he had conducted the post-mortem on the dead body of the prosecutrix aged about 14 years and he found the following external injuries.
i) Labia Mejora and Minora swelled, tear of size two inch x ½ inch over interior part of labia Majora, extending to vagina present with clots of blood.
ii) Anal tear of size 1 inch x ½ inch posteriorly present swelling of anal opening and dilation of anal opening about 2 inch ween.
iii) Bruises of size 3 cm x 2 cm over both side of neck present about three in number on each side.
iv) Bruises of size 2 cm x 2 cm over medial surface thigh and thigh folds present.
v) Perianal bruises of size 1cm x 1 cm about three in number present. Probable age of injuries are about 2 to 3 days.
On internal examination he found the following injuries.
i) Injuries over larynx Trachea and bronchi; Evidence of fracture of upper two tracheal rings and larynx present.
ii) Organs of Generation.
(i) tear of cervix about 3 cm enteriorly present with echoymetic
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25
patches over uterus present. All these injuries were antemortem.
27. According to the witness the cause of death was asphyxia due to strangulation. He further deposed that there was evidence of rape and sodomy. He had issued post-mortem report (Exh. 27) which was bearing his signature. He further deposed that the contents of the report were correct. He reported that the external injuries could be caused by hard and blunt object and internal injuries observed by him would have been caused due to pressure by hard object. Internal tear of servix can be caused by hard object. Same injury may be caused by due to forcible penetration. Labia Majora and manora swell tear may be caused by hard and forcible penetration. Anal tear could have been caused by hard forcible penetration.
On 16.8.2006 he had received letter for his opinion. Accordingly, he gave his opinion on 6.9.2006. He had opined that on more than one occasion rape was forcibly committed on the deceased and also sodomy was committed on the deceased. He opined that the age of the deceased was about 11 to 14 years. He confirmed the contents of the opinion given at Exh. 29 correct. In cross-examination he stated that he could not tell the time gap between rape committed on the deceased and also he could not tell for how many times the rape was committed on the deceased.
Similarly, he could not tell the number of times sodomy was committed on the deceased. He further deposed that it was possible that more than one person might have committed rape on the deceased. He also could not tell the time of sodomy and rape on the deceased. A person aged about 55 to 60 years old could commit ::: Downloaded on - 09/06/2013 13:31:47 ::: 26 intercourse more than once and the same depends upon the physical capacity of the person. A close scrutiny of the evidence of this witness discloses that the deceased was subjected to rape on more than one occasion. The evidence of this witness also establishes that the age of the deceased was between 11 to 14 years and as such question of consent is totally irrelevant. Having regard to the factual scenario which clearly establishes that both the accused had taken the prosecutrix from the Deosthan on 20.7.2006 and that time deceased was in the custody of both the accused and the accused no.2 being female, the only legitimate inference which can be drawn is that it is the appellant who had committed rape on the deceased on more than one occasion.
The deceased was in the custody of the accused and his wife after she was kidnapped on 20.7.2006 till she was taken on bicycle on 23.7.2006 by accused Shankar from the house of Ravindra (P.W.8). Therefore, in the absence of any plausible explanation coming from the accused the only legitimate inference which can be drawn is that it was the accused who committed rape on the deceased on more than one occasion.
The medical evidence corroborates the version of Ravindra (P.W.8) who has deposed about commission of rape on deceased by accused on 23.7.2007 at about 8 p.m. in the verrandah of his house. Thus, the prosecution has been able to prove that it was the accused who committed rape on the deceased on more than one occasion.
28. At this stage we deem it appropriate to refer to a disturbing feature which has come to our notice. The medical evidence clearly establishes that sodomy was committed on the deceased. Charge sheet filed by the prosecution was also filed ::: Downloaded on - 09/06/2013 13:31:47 ::: 27 under Section 377 of I.P.C. along with other sections of I.P.C.. We fail to understand as to why the learned trial Court did not frame charge under Section 377 of I.P.C.
which was prima facie made out against the accused Shankar. We consider it as a serious lapse on the part of the trial Court in not framing charges under Section 377 of I.P.C. when there was prima facie material in support of the charge. It is also pertinent to note that in the cross-examination of Dr. Mohan Kewade nothing tangible has been brought on record to discredit his version that deceased was subjected to sodomy. However, in the absence of any specific charge having been framed, we are afraid that the evidence of Dr. Mohan which clearly establishes sodomy is not of much help to the prosecution to establish the offence of sodomy against the appellant. We also feel that the prosecuting agency has failed in his duty in pointing out to the court that prima facie case under Section 377 of I.P.C. was made out against accused Shankar for framing the charge. However, in the absence of any specific charge under Section 377 of I.P.C. we leave the matter at that.
29. The evidence of Dr. Ashok Thakare (P.W.16) who examined the appellant clearly establishes that the accused was capable of having intercourse. The same is corroborated by the certificate (Exh. 70) issued by him.
30. In so far as the homicidal death of the deceased is concerned, the evidence of Dr. Mohan (P.W.3) clearly establishes beyond reasonable doubt that the death of deceased was due to strangulation, on account of pressure having been ::: Downloaded on - 09/06/2013 13:31:47 ::: 28 exerted on her neck. Since the dead body of the deceased was found in the field of father of Sanjay (P.W.9) with the evidence of rape, the only legitimate inference which can be drawn is that the person who committed rape and sodomy also committed murder of the deceased. We have already held that there is cogent evidence to prove beyond reasonable doubt that it was the accused who committed rape on more than one occasion on the deceased and, therefore, we have no hesitation to hold that it was the accused and the accused alone who committed murder of the deceased in the field of the father of Sanjay. Therefore, the eight circumstance stands proved beyond reasonable doubt by the prosecution.
31. The prosecution has also relied upon the circumstance that deceased was having moderate mental retardation. To prove this fact the prosecution has relied upon the certificate dated 16.5.2006 (Exh.94) issued by the President of Handicap Board, General hospital, Amravati which discloses that the deceased was physically handicapped and was having disability of moderate mental retardation. The certificate clearly proves that deceased was having moderate mental retardation. The evidence of Ramesh (P.W.12), Parvati (P.W.13) and Ramrao (P.W.10) corroborates the fact that the deceased was moderately mentally retarded. Therefore, the prosecution has been able to prove the circumstance that the deceased was having moderate retardation.
32. The prosecution has also relied upon the test identification parade ::: Downloaded on - 09/06/2013 13:31:47 ::: 29 conducted by Gajendra Malthane - Naib Tahsildar (P.W.4) which was held on 8.8.2006. However, we are unable to place any reliance on the test identification parade inasmuch as Gajendra Malthane (P.W.4), the Magistrate has clearly admitted in his cross-examination that the accused were hand cuffed by police. We, therefore, find it difficult to place any reliance on the test identification parade in which the prosecution claims that the witnesses had identified the accused.
33. The prosecution has also relied upon the spot panchanama (Exh. 58) and discoveries at the instance of the accused. The spot panchanama which was conducted on 24.7.2006 has been duly proved through the evidence of Vinod Jawalkar (P.W.14). The evidence of Vinod and the spot panchanama establish that on the spot bidis, match box, lid of vassaline bottle, pair of blackish chappals were found in the field of father of Sanjay Jawarkar (PW9). The witness identified articles which were found on the spot and were seized by the police pursuant to the panchanama (Exh. 58) and pursuant to seizure memo (Exh. 59). Although the prosecution claims that certain articles like bicycle, cap of vasline bottle and the clothes were discovered pursuant to the disclosure statement made under Section 27 of the Evidence Act the fact remains the perusal of the panchanama which was witnessed by Gajanan (P.W.2) discloses that in the disclosure statement of the accused there is no reference to the articles but the articles were seized from the house situated in Ravi Nagar locality of village Paratwada belonging to Sarswati Kharate. The cap of vasline bottle, shawl, shirt, pant, baniyan and scarf were seized ::: Downloaded on - 09/06/2013 13:31:47 ::: 30 from the house. From the house the bicycle which was used by the accused to carry the deceased to the spot was also seized. In the cross-examination of this witness who was the police patil of Yerpurna nothing tangible has been brought on record to discredit his testimony. No doubt he has stated that he was having cordial relations with the police but being the police patil there was nothing wrong in he having cordial relations with the police. However, the fact remains that the recoveries of these articles cannot be treated as recoveries under Section 27 of the Evidence Act in the absence of any statement to that effect having been made prior to the recovery and seizure of these articles. Therefore, though the prosecution has not been able to prove discovery of the above articles from the house at the instance of the accused, yet the prosecution has been able to prove that these articles were seized from the house.
34. From the Spot Panchanama (Exh. 58) and Seizure Memo (Exh. 59) as well as Panchanama (Exh.24) a clinching circumstance against the accused is proved by the prosecution. In terms of spot panchanama along with other articles a blue coloured plastic lid of vasline container was found on the spot which was seized in terms of Seizure Memo (Exh.59). As per Panchanama (Exh.24) a white vasline bottle without lid was seized from the house shown by the accused . The said lid fits the vasline bottle. Therefore, this is a clinching circumstance against the accused.
Thus, the prosecution has been able to prove all the above mentioned circumstances except the circumstance regarding identification of the accused by ::: Downloaded on - 09/06/2013 13:31:47 ::: 31 some of the prosecution witnesses. In so far as the discovery of certain articles at the instance of the accused is concerned, the same cannot be treated as discovery at the instance of the accused but the same can be treated as simple recovery.
35. The question which arises for consideration is whether the circumstances proved by the prosecution are sufficient to prove the complicity of the appellant in the commission of various offences for which he has been convicted and sentenced by the trial court.
The Apex Court in Shivu's case (supra) has held that before the conviction could be based on circumstantial evidence the following conditions must be fully established.
i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
ii) The facts so established should be consistent only with the hypo of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
::: Downloaded on - 09/06/2013 13:31:47 ::: 32iii) The circumstances should be of a conclusive nature and tendency;
iv) They should exclude every possible hypothesis except the one to be proved; and
v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In our considered opinion applying the above principles we have no hesitation to hold that the prosecution has been able to prove beyond reasonable doubt that it is the accused and accused alone who committed rape on the deceased and murdered her after kidnapping her from Gunwant Maharaj Sansthan at Lakhanwadi. Therefore, the conviction of the accused for the offences for which he has been convicted does not call for any interference.
36. The next question which arises for our consideration is whether death sentence awarded by the trial court is justified. In other words, the question which arises for consideration is whether this is rarest of rare case justifying imposition of extreme penalty of death on the appellant/accused.
::: Downloaded on - 09/06/2013 13:31:47 ::: 3337. We shall refer to the authorities relied upon by the learned counsel for the accused and learned A.P.P..
In Balram Sharma's case (supra) Chhatisgarh High Court commuted the death sentence awarded to the accused to life imprisonment. The accused was convicted for having committed murder of his wife and two sons. However, the High Court held that the accused was having financial hardship and was having mental strain. Considering these facts, the High Court commuted the death sentence to life imprisonment. The factual situation not being identical with the present case the authority does not advance the case of the accused. In Mohd. Chaman's case (supra) the accused was convicted and sentenced for rape and murder of 1½ years old child.
The Apex Court commuted the death sentence to life imprisonment. In the said case the accused while committing rape caused injuries on the lever and other parts of the deceased. Considering these facts the Apex Court commuted the death sentence to life imprisonment. In Amit Gandhi's case (supra) the Apex Court commuted death sentence to life imprisonment on the ground that the accused was hardly 20 years' old and had no history of crime. In this case the accused had murdered a minor girl by strangulation after committing rape. In Surendra Pal's case (supra) the Apex Court commuted death sentence imposed on the accused for the offence of rape and murder to life imprisonment considering that the accused was 36 years old and had no criminal record. In Mansingh's case (supra) the Apex court reversed the acquittal of the accused for the offence of rape and murder and maintained conviction for rape ::: Downloaded on - 09/06/2013 13:31:47 ::: 34 and murder recorded by the trial court but commuted the death sentence awarded to life imprisonment on the ground that the alleged offence had taken place long back and the accused was acquitted by the High Court. In Deshraj's case (supra) the Apex Court set aside the acquittal of the accused of the offence of murder and rape on 10 years old girl and awarded life imprisonment to the accused. Similarly, in Kashiram's case the Apex Court awarded life imprisonment by setting aside the acquittal of the accused for murder of his wife and two daughters.
38. In Bachan Singh's case (supra) the Apex Court upheld the validity of death sentence and held that the death sentence could be imposed in a rarest of rare case.
39. In Machhi Singh's case (supra) the Apex Court observed thus:
"The following questions may be asked and answered as a test to determine the rarest of the rare case in which death sentence can be inflicted:-
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate
and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
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35
The following guidelines which emerge from Bachan Singh case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises (SCC p 489 para 38):-
i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
ii) Before opting for the death penalty the
circumstances of the offender also require to be taken into consideration along with the circumstances of the crime.
iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when 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 cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
In rarest of rare case when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death ::: Downloaded on - 09/06/2013 13:31:47 ::: 36 penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiments in the following circumstances:
1) When the murder is committed in an extremely brutal, grotesque, diabolical revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassination for money or reward or a cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust or murder is committed in the course for betrayal of the motherland.
3) When murder of a member of a Scheduled Caste or minority community etc.. is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality, are committed.
::: Downloaded on - 09/06/2013 13:31:47 ::: 375) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
40. In paras 24,25 and 26 of Shivu's case (supra) the Apex Court observed thus;
"24. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt."::: Downloaded on - 09/06/2013 13:31:47 ::: 38
"25. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations.
Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence, sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread."
"26. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences.
Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of toleration that is unwarranted and unwise. But, in fact quite apart from those ::: Downloaded on - 09/06/2013 13:31:47 ::: 39 considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences."
41. Having regard to the principles laid down by the Apex Court to which we have made exhaustive reference herein above the question which arises is whether the death sentence awarded by the trial court is justified. At this stage, it would be appropriate to refer to the affidavit dated 11.4.2008 filed by the Investigating Officer during the course of hearing of the appeal and the reference which discloses that the accused is also an accused in two crimes. Crime No. 165/92 has been registered at Police Station, Borgaon Manju, District Akola for the offence under Section 302 of the Indian Penal Code on the allegation that he caused murder of his wife Chanda by assaulting her with stick on 4.10.1993. It has been pointed out that Sessions Trial No. 52/07 is pending before the Sessions Judge, Akola against the accused. The second crime alleged against the accused is Crime No. 80/06 registered at Chandur Bazar Police Station for the offences under Sections 457 and 380 of the Indian Penal Code. No doubt it is for the first time in the proceedings pending before this court that the prosecution has sought to rely upon the criminal record of the accused.
According to Mr. Daga, the learned counsel for the accused the prosecution ought to have brought these facts before the trial court and it is not permissible for the prosecution to bring criminal record of the accused on record for the first time in ::: Downloaded on - 09/06/2013 13:31:47 ::: 40 these proceedings. No doubt, the prosecution was expected to place on record the entire relevant material justifying the death sentence before the trial court and there is remiss on the part of the prosecution in not bringing this fact to the notice of the trial court at the appropriate time. However, fact remains that the accused has not disputed the pendency of these proceedings against him. Moreover, they cannot be said to be irrelevant for the purpose of deciding the appropriate sentence which deserves to be imposed on the appellant. We, therefore, deem it appropriate to consider the pendency of these cases as a circumstance against the accused. It is well settled that the powers of the Appellate Court are co-extensive with that of the trial court and in order to find out whether the conviction and sentences imposed on the accused are justified and appropriate, this Court would be justified in considering the evidence led before the trial court as well as the relevant factors placed before us which are germane for deciding the appropriate sentence to be imposed on the accused.
42. In so far as the authorities relied by Mr. Daga in support of his submission that the death sentence is unwarranted is concerned, in none of the authorities cited by him factual situation is similar to the present case. In the present case, the appellant who is aged about 55 years has kidnapped the minor child of about 12 years and that too having moderate mental retardation. The evidence merely establishes that the accused committed rape on the deceased on more than one occasion. No doubt as stated above in the absence of charge the accused cannot be ::: Downloaded on - 09/06/2013 13:31:47 ::: 41 convicted for the offence under Section 377 of the Indian Penal Code but we see no bar in relying upon the circumstance that the deceased was subjected to carnal intercourse before she was murdered and considering the circumstances of the case there can be no doubt whatsoever that it was the accused and accused alone who subjected the deceased to carnal intercourse. The entire conduct of the accused exhibits total depravity which shocks our conscious. Moreover, the fact remains that the accused has criminal record and as on the date of his conviction he was facing charges of murder as well as theft and trespass. The fact that the accused is a married man of 55 years old and that he has two sons cannot outweigh the aggravating circumstances. Considering the fact that the accused had taken undue advantage of a minor girl of 12 years who was having moderate mental retardation and had subjected her to rape on more than one occasion and also to carnal intercourse and that he committed her murder by strangulation we find that this is rarest of rare case which justifies imposition of death sentence on the accused/appellant. After drawing the balance sheet of aggravating and mitigating circumstances we find that aggravating circumstances clearly outweigh the mitigating circumstances which are hardly present. We make it clear that in so far as the criminal record of the accused is concerned, we have only taken note of pendency of the proceedings against him and we have not expressed any opinion on the merits of the cases. We find that the facts in the present case are more shocking than the facts in Shivu's case (supra) in which the Apex Court awarded death sentence for committing the offence of rape and murder. In the said case the accused had earlier attempted twice to rape a village girl ::: Downloaded on - 09/06/2013 13:31:47 ::: 42 and were admonished by Village Panchayat. We, therefore, find that the trial Court was justified in awarding the death sentence to the accused. In our opinion, the conviction recorded and sentences imposed on the accused for the offences under Sections 302, 366-A, 363 read with Section 34 and 376 of the Indian Penal Code need no interference.
43. For the reasons stated above, we find no merit in the appeal preferred by the appellant. Accordingly, the Criminal Appeal No. 512/2007 filed by the accused is dismissed and reference made by the trial Court is accepted.
Judge Judge
At this stage, Mr. Daga, learned counsel appearing for the
appellant/accused submits that the execution of death sentence be stayed for a period of eight weeks since the appellant desires to approach the Apex Court against the judgment and order passed today by this Court. Mr. Doifode, learned A. P. P. has no objection to stay to the execution of death sentence for a period of eight weeks. In order to enable the appellant/accused to approach the Apex Court, execution of death sentence is stayed for a period of eight weeks.
JUDGE JUDGE ::: Downloaded on - 09/06/2013 13:31:47 ::: 43 ::: Downloaded on - 09/06/2013 13:31:47 :::