Bombay High Court
Raju @ Rajkumar Keshavrao Landge (In ... vs State Of Maharashtra Thr. P.S.O. Ashti, ... on 26 October, 2018
Author: R.K. Deshpande
Bench: R.K. Deshpande
1
conf. case 1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPELLATE JURISDICTION
CRIMINAL CONFIRMATION CASE NO.01 OF 2018
WITH
CRIMINAL APPEAL NO.85 OF 2018
WITH
CRIMINAL APPEAL NO.119 OF 2018
CRIMINAL CONFIRMATION CASE NO.01 OF 2018
The State of Maharashtra,
through P.S.O., Ashti,
Tahsil Ashti, District Wardha. ... Appellant
Versus
Raju @ Rajkumar Keshavrao Landge,
Occupation - Watchman,
R/o Sahur,
Tahsil Ashti, District Wardha. ... Respondent
CRIMINAL APPEAL NO.85 OF 2018
Raju @ Rajkumar Keshavrao Landge,
Aged about 46 years,
R/o Sahur, Tahsil Ashti,
District Wardha. ... Appellant
Versus
State of Maharashtra,
through P.S.O. Ashti,
Tahsil Ashti, District Wardha. ... Respondent
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
2
conf. case 1.odt
CRIMINAL APPEAL NO.119 OF 2018
Raju @ Rajkumar Keshavrao Landge,
Aged about 46 years,
R/o Sahur, Tahsil Ashti,
District Wardha. ... Appellant
Versus
State of Maharashtra,
through P.S.O. Ashti,
Tahsil Ashti, District Wardha. ... Respondent
Shri S.S. Doifode, Additional Public Prosecutor for State.
Shri S.K. Bhoyar, Advocate for Accused/ Appellant in Criminal Appeals.
Coram : R.K. Deshpande & Arun D. Upadhye, JJ.
th
Date of Reserving the Judgment : 11 October, 2018
th
Date of Pronouncing the Judgment : 26 October, 2018
Judgment (Per R.K. Deshpande, J.) :
1. The incident is of 15-8-2015, which took place at the newly
constructed building of the hostel of Adivasi Madhyamik Ashram Shala,
Pandhurna, Tahsil Ashti, District Wardha. The victim is Ku. S
(name not disclosed to withhold the identity), aged about ten years and the
charge against the accused was that he repeatedly committed
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
3
conf. case 1.odt
rape/penetrative sexual assault on three consecutive days prior to
15-8-2015. The further charge was that the accused committed an act of
criminal intimidation by threatening Ku. S to kill her with intent to cause
alarm if she discloses the incident to anybody. It was also the charge that not
being a member of Scheduled Caste or Scheduled Tribe, the accused was in a
position to dominate the will of Ku. S, a minor girl belonging to Scheduled
Caste or Scheduled Tribe, and used the position to exploit her sexually by
repeated acts. The charges were framed initially on 27-10-2016, and the
additional charge was framed on 16-8-2017 for sexual assault on a minor girl
aged about ten years, amounting to an offence punishable under
Section 5(m) and (p) and Section 6 of the POCSO Act.
2. The conviction of accused Raju on 5-10-2017 in Special (Ch.) Case
No.76 of 2015 by the Special Judge for POCSO, Wardha, is for the offence
punishable under Section 376(2)(i) of the Indian Penal Code (IPC) and the
sentence imposed is of life imprisonment means for the remainder of his
natural life and with a fine of Rs.5,000/-. The conviction is also for the offence
punishable under Section 506(II) of IPC and the sentence for it is to suffer
rigorous imprisonment for seven years with a fine of Rs.1,000/-. The further
conviction is for the offence punishable under Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
4
conf. case 1.odt
(the Atrocities Act) and for it, the sentence is to suffer life imprisonment with
a fine of Rs.5,000/-. All the sentences for the substantive offences are directed
to run concurrently. The acquittal is in respect of the offences punishable
under Section 376(2)(n) of IPC, Sections 4 and 6 of the Protection of Children
from Sexual Offences Act, 2012 (the POCSO Act), and Section 3(1)(xii) of the
Atrocities Act.
3. Though the offences were alleged to have been committed on three
consecutive days prior to 15-8-2015, the oral report and the written complaint
were given for the first time in the Police Station on 6-9-2015 by one
Smt. Drupadabai, the grandmother of the victim, registered as FIR No.43 of
2015 at Exhibit 26. The proseuction led evidence and examined twelve
witnesses during 9-1-2017 to 1-8-2017. The conviction was recorded by
delivering the judgment on 5-10-2017, which is the subject-matter of
challenge in Criminal Appeal No.119 of 2018.
4. The second incident is of 19-8-2015 and the place is the Government
Adivasi Ashram School, Pandhurna at 11.00 hours. The accused is the same
person Raju and and the victim is Ku. R (name not disclosed to withhold the
identity), aged about nine years. Initially the charges were framed on
27-10-2016 alleging that the accused committed rape on Ku. R, aged about
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
5
conf. case 1.odt
nine years and has thereby committed an offence under Section 376(2)((i) of
IPC. The second charge was that the accused committed criminal intimidation
by threatening to end life of Ku. R and has thereby committed an offence
punishable under Section 506 of IPC. The third was that of committing
penetrative sexual assault, resulting in commission of offence under Sections 3
and 5 of the POCSO Act, punishable under Section 6 therein. The additional
charge was framed on 16-8-2017 in respect of the offence punishable under
Sections 2(m) and (p) and 6 of the POCSO Act. Further, the charge under
Section 376-E of IPC was framed on 12-12-2017.
5. The same accused Raju has been convicted on 11-1-2018 by the
same Special Judge for POCSO, Wardha, in Special (Ch.) Case No.77 of 2015
for the offence punishable under Section 376-E of IPC and is directed to be
hanged by neck till he is dead, subject to the confirmation by this Court. The
accused is also convicted for the offence punishable under Section 376(2)(i)
of IPC and is sentenced to suffer life imprisonment for the remainder of his
natural life with a fine of Rs.5,000/-. He is also convicted for the offence
punishable under Section 506(II) of IPC and is sentenced to suffer rigorous
imprisonment for seven years with a fine of Rs.1,000/-. The conviction is also
for the offence punishable under Section 3(2)(v) of the Atrocities Act and the
accused is sentenced to suffer life imprisonment with a fine of Rs.5,000/-. All
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
6
conf. case 1.odt
the sentences for the substantive offences imposed upon the accused are
directed to run concurrently. The acquittal of the accused Raju is in respect of
the offence punishable under Sections 4 and 6 of the POCSO Act and also of
the offence punishable under Section 3(1)(xii) of the Atrocities Act.
6. Though the incident is of 19-8-2015, the FIR No.40 of 2015 was
lodged on 1-9-2015 by Zanaklal Zibru Parteki, the father of the victim. The
prosecution examined twenty-two witnesses during 1-9-2017 to 16-12-2017.
The conviction was recorded and the death sentence was imposed in the
judgment delivered on 11-1-2018, which is the subject-matter of Criminal
Confirmation Case No.01 of 2018 by the State and challenged in Criminal
Appeal No.85 of 2018 by the accused Raju.
7. The undisputed position is that the second incident of 19-8-2015
was reported first on 1-9-2015, whereas the first incident of 15-8-2015 was
reported subsequently on 6-9-2015. The conviction of the
appellant-accused is for the offence of rape covered by Sections 376(2)(i) of
IPC, apart from the offences under Sections 506(II) of IPC and Section 3(2)(v)
of the Atrocities Act. Though the charge in Special (Ch.) Case No.76 of 2015
was also for the offence under Section 376(2)(n) of IPC, the accused is
acquitted of the same and there is no conviction for it in any of the two cases.
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
7
conf. case 1.odt
In addition to the accused Raju, the conviction in the Confirmation Case is
also of accused No.2 Madan and accused No.3 Vaishali, the Head Master and
Hostel Superintendent respectively, for the offences punishable under
Section 202 of IPC and Section 21(1)(2) of POSCO Act, as they failed to
report the matter and take action in spite of knowledge. All these offences
were committed on or before 19-8-2015 for which the maximum punishment
that could be imposed under Section 376(2)(i) of IPC was of imprisonment for
life, means the remainder of the natural life of the accused and fine.
However, on the basis of the provision of Section 376-E of IPC, introduced
with effect from 3-2-2013, the punishment for repeat offenders imposed is
that of the death sentence, as the accused was found to be previously
convicted of an offence of rape under Section 376 of IPC.
Contentions :
8. Initially we heard Shri S.K. Bhoyar, the learned counsel appearing
for the accused, who urged that for imposing the punishment of death under
Section 376-E of IPC for the repeat offenders, the previous conviction
contemplated therein is the conviction recorded prior to commission of
subsequent offence or at any rate before the charge in the subsequent offence
is framed. In the present case, previous conviction is during the course of trial
of the subsequent offence. After recording the conviction in the subsequent
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
8
conf. case 1.odt
case, the charge was framed in respect of punishment of death on 12-12-2017
and then the sentence of death was imposed. The sentence for death cannot,
therefore, be sustained.
9. According to Shri Bhoyar, the learned Judge of the Sessions Court
was determined to sentencing the accused for death. He submits that instead
of conducting one trial, as contemplated by Section 219 of Cr.P.C., for the
same kind of offence committed within a span of twelve months, the learned
Sessions Judge conducted two trials in respect of the same kind of charge
simultaneously. The conviction in Special (Ch.) Case No.76 of 2015
(called as 'previous case'), was recorded on 5-10-2010 and thereafter
proceeded the examination of remaining witnesses in Special (Ch.) Case
No.77 of 2015 (called as 'subsequent case'). Shri Bhoyar submits that if one
trial had been conducted, as contemplated under Section 219(1) of Cr.P.C.,
the question of previous conviction would not have arisen. He also urged that
the procedure adopted of conducting simultaneous trial has caused prejudice
to the accused.
10. It is further urged, relying upon the provisions of Sections 303 and
304 of Cr.P.C. and Sections 12 and 13 of the Legal Services Authority Act,
1987, that the accused was not provided an effective opportunity to defend
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
9
conf. case 1.odt
the matter, as the counsel appointed from the legal aid to represent him in
trial did not possess requisite experience. He took us through the
cross-examination conducted to point out that the questions which could not
have been put in cross-examination were asked and the questions which could
have been put by a lawyer having reasonable knowledge were not put to the
witnesses. On this count, he submits that the conviction recorded in both
these matters need to be set aside with an order of remand to provide the
accused an effective opportunity to defend.
11. Shri Sanjay Doifode, the learned Additional Public Prosecutor
appearing for the State, invited our attention to Sections 236, 376, 386, 391,
464 and 465 of Cr.P.C. to urge that the findings on the sentence cannot be
reversed or altered on account of any error, omission or irregularity unless in
the opinion of the Court, failure of justice has in fact been occasioned thereby.
He submits that at the most the matter can be remanded back keeping in view
the argument in respect of failure on the part of the Court to provide an
effective opportunity to defend. He further submits that there was no defect
in framing the charge and refutes the argument that the 'previous conviction'
means the conviction subsisting either on the date of commission of second
offence or on the date of framing of charge in the subsequent case. He
submits that the procedure adopted by the Sessions Court was correct, proper
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
10
conf. case 1.odt
and in accordance with law.
12. While hearing the learned counsels appearing for the parties, we
thought that in the absence of any judgment on the provision of Section 376-E
of IPC, it would be better if we call upon someone to assist us and address on
several important questions involved in the matter. We, therefore, passed an
order as under :
"Both these matters raise various questions of public importance
involving interpretation of provisions of Section 376 of Indian Penal
Code and other amendments introduced with effect from 21.04.2018.
We are dealing with the case of confirmation of death sentence and the
questions arising in the present matter probably have not been
addressed to by any Court as the amendment is of 2018.
We, therefore, called upon Shri Adwait Manohar and
Smt. Renuka Sirpurkar, the learned counsels to address this Court on
several issues as amicus curiae which we have explained to them.
We expect Shri Bhoyar, the learned counsel for the accused and
Shri Doifode, the learned Additional Public Prosecutor to supply
sequence of events to both the learned counsels appointed by this Court,
so that they can address this Court on the precise issues.
Put up this matter on 11.10.2018."
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:42 :::
11
conf. case 1.odt
13. We have heard Shri Adwait Manohar, the learned counsel appointed
as amicus curiae, who has taken us through the scheme of conducting trial
under the Code of Criminal Procedure, including the mandatory provision of
Section 218 of Cr.P.C., dealing with conducting of separate trial in respect of
distinct offences and the exceptions to it under the provisions of Sections 219
to 223 of Cr.P.C. and has urged that there can be no fault in the procedure
adopted by the Sessions Court in conducting different trials. He has taken us
through various judgments of the Apex Court on this aspect of the matter and
has urged that merely because separate trials are conducted, no prejudice is
said to have been caused to the accused. He has further invited our attention
to the provision of Section 376-E of IPC, introduced on 3-2-2013, and the
amendments carried out with effect from 21-4-2018 and submits that the said
provision is clearly attracted in the present case. According to him, the
Sessions Court was right in framing the charge in respect of the enhanced
punishment under Section 376-E of IPC after recording the conviction in the
subsequent trial. Further, according to him, at no earlier point of time, there
was an occasion to frame the charge. On the aspect of failure to provide an
opportunity to defend, he has also relied upon the decisions of the Apex Court
in the cases of (i) Mohd. Hussain alias Zulfikar Ali v. State (Government of NCT
of Delhi), reported in (2012) 2 SCC 584; and (ii) Mohd. Hussain alias Julfikar
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
12
conf. case 1.odt
Ali v. State (Government of NCT of Delhi), reported in (2012) 9 SCC 408, and
has urged that the matter is required to be remanded back to the Sessions
Court to conduct de novo trial from the stage of framing of the charge itself.
14. Smt. Renuka Sirpurkar, the learned amicus curiae, has also produced
before us the report of the Committee on the amendments to criminal law to
point out that the Committee in fact did not recommend the punishment of
death sentence, but then the Parliament has passed a legislation introducing
the provision of Section 376-E, to provide the punishment of death in the
situation contemplated therein. She has concurred with the view expressed by
Shri Adwait Manohar that the 'previous conviction' referred to under
Section 376-E of IPC need not necessarily be a conviction existing either at the
time of commission of second offence or at the time of framing of the charge
in the subsequent trial. She subscribes to the view that it is only upon
recording of the conviction in the subsequent trial that the occasion to invoke
the provision of Section 376-E of IPC would arise.
15. We must express that Shri S.K. Bhoyar, the learned counsel
appearing for the accused Raju, and Shri Sanjay Doifode, the learned
Additional Public Prosecutor appearing for the State, have not only provided
us proper assistance on the facts of the cases, but have also gone ahead and
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
13
conf. case 1.odt
assisted us as officers of this Court and we appreciate it. We must also place
on record our appreciation in respect of the efforts taken by Shri Adwait
Manohar and Smt. Renuka Sirpurkar as amicus curiae and the assistance
provided to us in understanding the scheme of the trial of the offences by the
Sessions Court and the interpretation of various provisions, supported by
several decisions and the report of the Committee on the amendment of
criminal law. We have no hesitation in expressing that the arguments by both
of them would always remain an addition to our knowledge. It would have
been our pleasure to deal with all the aspects addressed to us. However, it is
not necessary for us in the present matter to deal with the same, as we are
convinced on the question of remand of the matter back to the Sessions Court
after setting aside the decisions for de novo trial on the ground of lack of
opportunity provided to the accused to defend.
Conviction in Special (Ch.)case No.76 of 2015 - 'Previous Case' :
16. In the previous case, the conviction for the offence punishable under
Section 376(2)(i) of IPC is based upon the oral testimony of the victim Ku. S,
examined as PW 5; Smt. Dhrupadabai, PW 2, the grandmother of the victim
and the complainant; Chanda Kamble, PW 11, the teacher of the victim; and
Dr. Vaishali, PW 7. We would, therefore, like to see the material available on
record to support the findings of conviction.
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
14
conf. case 1.odt
17. The charge in the previous case is in respect of an offence under
Sections 376(2)(i) and 376(2)(n) of IPC, framed as under :
" Firstly, That, in the summer of year 2014, on three consecutive
days and about one to one and half month prior to 15.08.2015 at a
newly constructed building of Hostel of Aadivasi Madhyamik Aashram
Shala, Pandhurna, Tah.-Ashti, District Wardha, you accused repeatedly
committed rape/penetrative sexual assault on Ku. Shilpa Prakash
Nirmale, a minor/child under 16 years of age and thereby committed
an offence punishable under section 376(2)(i), 376(2)(n) of Indian
Penal Code and Section 4 of the Protection of Children from Sexual
Offences Act, 2012, and within the cognizance of this Special Court."
18. PW 5 victim Ku. S has stated in Paras 2, 3 and 4 of her
examination-in-chief as under :
"2. Now, through V.C. witness is shown one gents. On seeing him she
has stated that his name is Rajudada. She has identified his by
showing her finger. At relevant time Rajudada was serving as a
Watchman (Choukidar). Dighore Madam was Superintendent and
Khadse Sir was Headmaster. At relevant time, Rajudada was residing
in a new building. When I was in 4th Standard, Rajudada took me in a
new building on 15th August at about 2.00 p.m. At that time, he took
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
15
conf. case 1.odt
me in the kitchen of the said building. Thereafter, he had undressed
me. He had removed his clothes also. Thereafter, he had led me on
Ota of kitchen. Thereafter, he had inserted his main genital into my
vagina. Therefore, blood oozed out of my vagina. He had wiped of said
blood by his clothes. Thereafter, he told to me that if I stated about the
said incident to anybody, he will kill me. Thereafter, I went away from
there. I had stated about the said incident to Dighore Madam.
Thereupon Dighore Madam told to me that if I stated about the said
incident to anybody, she will assault by stick."
"3. Prior to the incident also on three occasion, accused had did
above stated acts with me."
"4. After the incident of 15th August, after 2 to 4 days again
Rajudada called me. At that time, he told to me to call Rani. So, I
called Rani and took her near new building. Rajudada took Rani
inside. I had gone for playing. After sometime, Rani came outside. At
that time, she told to me that whatever bad deeds Rajudada had done
with me he had done the same with her. Thereafter, I and Rani both
had stated to Dighore Madam. Thereupon, she told that not to state
about it to anybody otherwise she will make assault, she has also stated
that she will state about the same to Sir."
The victim states in Para 7 of her cross-examination as under :
"7. It is true to say that besides me other girls are also in my school. I
do not know whether Rajudada was giving harassment to other girls
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
16
conf. case 1.odt
also or not. It is not true to say that at relevant time, I had not
shouted. It is not true to say that prior to the incident also on 2 to 3
occasion when Rajudada gave harassment to me, I had not shouted.
Witness volunteers that when I shouted, Rajudada pressed my mouth.
It is not true to say that after the incident, I was having no pains.
Witness volunteers that there was stomachache to her. It is not true to
say that I had not stated about the previous incident to anybody. I had
stated about it to Dighore Madam and she informed to me that she will
stated about it to Sir. It is true to say that I had not stated about it to
anybody apart from Dighore Madam. I had not stated about the said
incident and earlier incident to Wagh Madam. It is not true to say that
in Police Station about the said incident only my grandmother stated
and I stated nothing. It is not true to say that I am stating against
Rajudada."
This is the entire evidence of the victim in respect of the charge so
framed.
19. PW 2 Dhrupadabai, the complainant and the grandmother of the
victim, has stated in Para 2 of her examination-in-chief as under :
"2. On 5/09/2015 victim and her brother and sisters were brought at
our home by their father. At that time victim was crying. So, I asked
her as to why she was crying. Thereupon, she had stated that Rani
came near victim, accused told to her to call Rani. Thereupon she told
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
17
conf. case 1.odt
as to why I called her. Thereafter, she went away in the school. She
has also stated that on the festival of Nagpanchami accused took away
Rani in the building, removed her clothes and removed his clothes also.
Thereafter, she has also stated that Rani had also stated to her that
accused has inserted his penis in her vagina and blood was oozed out of
it. He had wiped of it by her clothes. Victim had also stated to me that
prior to 1½ months accused had did the same thing with her as liked
Rani. But, accused had given threats of killing to her she had not stated
about it to anybody. As the accused did said act with victim, there was
stomach ache, there was trouble in her vagina of the victim. So, I had
lodged the report of said incident at Police Station. Now the said report
is shown to me. It bears my thumb impression. Its contents are written
as per my narration. It is at Exh.25. Now printed F.I.R. is shown to
me. It bears my thumb impression. It is at Exh.26. I know the
accused. Because, he is a chowkidar of a construction work going on in
the said school. Police had recorded my statement."
In the examination-in-chief, PW 2 Dhrupadabai does not state that
the victim told her that Dighore Madam, the Hostel Superintendent, was
informed about the incident which took place on 15-8-2015 or at any earlier
point of time. However, surprisingly the question is put in the
cross-examination, in response to which she states that the victim had
informed that the incident was communicated to Dighore Madam.
PW 11 Chanda Kamble, the teacher of the victim, came to know about the
incident when the police went to School, obviously on or after 6-9-2015 upon
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
18
conf. case 1.odt
registration of the offence.
20. PW 8 Dr. Vandana is the Gynaecologist, who examined the victim on
7-9-2015 at 5 p.m. She states that the victim was accompanied by her
grandmother Dhrupada, who gave the consent for the medical examination of
the victim. Upon getting history of sexual assault from the victim, she states in
her examination-in-chief as under :
"... At that time Pain and small amount of bleeding (few drops) not
told to anybody at that time. On her examination I found that no
injury on her body, on her genital examination I found that pubic hair
not developed, labia majora, labia minora, clitoris within normal
limits, vagina within normal limit, hymen injury present, edges
normal, no edema, small tear present as 5.00 O clock position. I had
collected vaginal swab, blood sample. From the same I had opined that
sexual intercourse//assault cannot be ruled out. Hence, final opinion
is kept pending till receipt of FSL report. Three sealed bottle given to
LPC Nisha B. No.866. Accordingly, I had issued certificate. Now the
same is shown to me. It bears my signature. It is in my handwriting.
Its contents are true. It is at Exh.51."
The certificate issued by PW 8 Dr. Vandana in respect of the
examination is at Exhibit 51. She further states that she filled in Form-B and
Form No.II giving particulars about blood, vaginal swab and nail clipping,
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
19
conf. case 1.odt
marked as Exhibits 53 and 54. She also proved FSL report at Exhibit 55. She
states that on seeing the report, she opined that the possibility of sexual
intercourse/assault cannot be ruled out.
21. Exhibit 51 is the forensic medical examination report of the victim.
In Para (II)(a), the history stated by the victim (e.g. Date, time, place of
assault, number of assailants and type/nature of sexual assault and other
relevant details) is stated as under :
" H/given by grandmother C
that H/o sexual assault 1½ month
back in the under construction building
by (chaukidar) guard of building.
At that time pain & small amount of
bleeding (few drops). Not told to
anybody at that time."
It is stated in Para (III)(a) as under :
"Not attaineded menorche."
In the column of position of tears in Para (VI)(f), it is stated as
under :
"Small tear O present at 5 'O clock position."
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
20
conf. case 1.odt
The overall opinion in clause (b) of Para (X) states as under :
b) Evidence of sexual intercourse/assault cannot be ruled out. Hence,
final opinion is kept pending till receipt of FSL reports."
22. Exhibit 58 is the FSL report dated 29-8-2016, which states that
neither blood nor tissue matter is detected on exhibit (3), which is the nail
clipping in a test tube labelled with the name of the victim. It states that no
semen is detected on exhibit (2), which is vaginal swab in a test tube labelled
with the name of the victim.
23. In Paras 26, 27 and 40 of the judgment, the findings are recorded as
under :
"26. The medical evidence is suggestive of sexual intercourse and
sexual assault. The testimony of the prosecutrix that the accused put
his male organ in her organ of urination is revelatory of penetrative
sexual assault. The defence though argued that the sexual intercourse
with the prosecutrix was not possible, it is not of significance as the
prosecutrix has not stated in those words. She was a small child. Her
conduct during inquiry made by PW 11 and also while disclosing the
incident to her grandmother indicates the effect of threats issued to her.
It was after more than 18 days when she disclosed the incident to
PW 11 and almost after 20 days to her grandmother. In such a tender
age not disclosing the incident of sexual assault to anybody under the
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
21
conf. case 1.odt
threats to life is definitely going to negatively affect the psychology of
the child which made her to keep shut."
"27. The evidence of the witnesses PW 2 and PW 11 corroborates
the version of the prosecutrix. The medical evidence also corroborates
the evidence of the prosecutrix."
"40. The prosecution has brought the reliable evidence through the
victim of the crime, medical evidence and corroborative evidence.
Applying all the tests to the facts of the present case the Court is
satisfied beyond any manner of doubt that the prosecutrix had
absolutely no reason to falsely involve the accused. Thus, the
prosecution has successfully proved the offence punishable under
Section 376(2)(i) of IPC."
24. It is not established that the accused committed sexual assault on the
victim Ku. S on three consecutive days and about 1½ month prior to
15-8-2018. In respect of the incident of 15-8-2015, the victim deposes to have
informed Dighore Madam, the Hostel Superintendent, after the incident.
However, in her deposition, she does not state to have informed
PW 2 Dhrupadabai, the grandmother, about the complaint which she made to
Dighore Madam. PW 2 also does not state in her examination-in-chief that the
victim told her about the complaint made to Dighore Madam. This is,
however, taken out in the cross-examination of PW 2. In the forensic medical
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
22
conf. case 1.odt
examination report at Exhibit 51, PW 8 Dr. Vandana, while taking history from
the victim and her grandmother, notes that after sexual assault, the victim did
not tell it to anybody at that time. This becomes significant, more particularly
when PW 8 tentatively opines that the evidence of sexual assault cannot be
ruled out and kept the final opinion pending till receipt of the FSL report.
After receipt of the FSL report at Exhibit 58 on 29-8-2016, the final opinion is
neither expressed nor placed on record.
25. In our view, the oral evidence of PW 2 on the question of sexual
assault on victim is hearsay and not corroborative in its true sense. This
supporting version has an impact on the veracity of statement of the victim.
The medical report at Exhibit 51 shows that the victim Ku. S has not attained
menorche. There are no injuries on the body, pubic hair not developed, labio
majora, labia minora, clitoris and vagina are shown to be WNL (Within Normal
Limit). No bleeding was found. Except hymen tear at 5 'O Clock position,
there is nothing incriminating in the medical opinion. The opinion of
possibility of sexual assault is tentative and no final opinion is placed on record
to constitute a corroborative piece of evidence. There is delay of twenty days
in lodging FIR.
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
23
conf. case 1.odt
Conviction in Special (Ch.) Case No.77 of 2015 - 'Subsequent
Case' :
26. The incident in the subsequent case is of 19-8-2015 at about
11.00 hours and the place is at Government Adivasi Ashram School,
Pandhurna. The victim is Ku. R, aged about 9 years. The charge in respect of
an offence under Section 376(2)(i) of IPC against the same accused Raju
(accused No.1) is as under :
" Firstly, That, on 19.08.2015 at about 11.00 hrs. at Mouza
Pandhurna specifically in Government Adivasi Ashram School,
Pandhurna, you accused no.1 committed rape on Ku. Rani Zannaklal
Parteki, aged about 9 years and thereby committed an offence
punishable under section 376(2)(i) of Indian Penal Code, and within
the cognizance of this Special Court."
In relation to this incident, the accused No.2 Madan Lahanu Khadse,
the Head Master of the School, and the accused No.3 Vaishali Dayalu Dighore,
the Hostel Superintendent, were charged as under :
" Fourthly, That, on the aforesaid date, time and place you
accused nos.2 and 3 knowing that on 19.08.2015 at about 11.00 hrs.
at Mouza Pandhurna, specifically in Government Adivasi Ashram
School, an offence of rape was committed by accused no.1
intentionally, you both accused no.2 and 3 in furtherance of your
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
24
conf. case 1.odt
common intention intentionally omitted to give information respecting
the commission of the offence which you both were legally bound to
give and thereby committed an offence punishable under section 202
read with section 34 of Indian Penal Code, and within the cognizance
of this Special Court."
" Fifthly, That, on the aforesaid date, time and place, your
accused no.2 being Principal of incharge of Government Adivasi
Ashram School, Pandhurna, you accused no.3 being Superintendent in
said Institute, in furtherance of your common intention fails to report
the commission of an offence under sub-section (1)(b) of Section 19 in
respect of a subordinate under their control and thereby committed an
offence punishable under section 21(1)(2) of the Protection of
Children from Sexual Offences Act, 2012, and within the cognizance
of this Special Court."
The victim Ku. R (PW 7) states in Para 2 of her examination-in-chief
as under :
"2. Shilpa told to me that Rajudada was calling to you. So, she was
saying to me to come towards Rajudada. He was calling you. So, I
and Shilpa had gone to Rajudada. At that time, he was standing at
the rate of a building. Rajudada had given two rupees to me and four
rupees to Shilpadidi. Thereafter Rajudada told me to come to see one
room. Thereafter Rajudada took me in one room. At there he had
removed my nicker and his nicker also. Thereafter, he had inserted
his male genital into my vagina. At that time, he was saying to me
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
25
conf. case 1.odt
not to make noise. By saying so, he was scolding to me. Thereafter,
he pressed my mouth. Thereafter, my brother Rupesh came in the said
room. Thereafter Rajudada went away from there. At that time, it
was 2 O' clock in the noon. My brother wore clothes to me and took
me outside. Thereafter I had gone to narrate the said incident to
Dighore Madam. I had stated it to Dighore Madam. Thereupon,
Dighore madam told to me not state to me I will assault you by stick.
Now, witness has shown two gents through V.C., in it, there is
Rajudada and Khadse Sir (accused nos.1 and 2 in this case). The said
act did by Rajudada with me. ..."
The entire cross-examination on behalf of the accused No.1 is
contained in Para 4, which is reproduced below :
"4. When Rajudada took me in a room I shouted. It is not true to
say that Rajudada did not take me in a room and he had not inserted
his genital into my vagina. At relevant time there was pain to my
vagina. But no blood oozed out of it. Understanding is given to me
about how to state, accordingly I have stated. It is not true to say that
I am stating falsely."
27. PW 8 Ku. S is the victim in the previous case, PW 11 Rupesh is the
elder brother of the victim Ku. R and was studying in 6 th Standard in the same
School at the relevant time, and PW 18 Aniket is also the student in the same
School and at the relevant time he was in 6 th Standard. According to the
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
26
conf. case 1.odt
learned Judge of the Sessions Court, PW 11 Rupesh, the brother of the victim
Ku. R, was the eye-witness to an incident. At the instance of accused Raju,
PW 8 sent the victim Ku. R to the accused, and PW 18 Aniket, the student in
the same School, has deposed about the accused Raju being in the habit of
sexually exploiting the minors. On the basis of the evidence of these witnesses,
the Sessions Court records the findings in Para 53 of the judgment as under :
"53. Thus, from the overall evidence coming through PW.7,
PW.8, Pw.11 and PW.18 the facts can be gathered that it was after 2
to 4 days of 15th August 2015, in the afternoon, when the accused
no.1 called PW.7 and took her inside, he removed his clothes and her
clothes and thrust his penis into the private organ of the prosecutrix.
Meanwhile, PW.11 on the information of PW.18 went inside the new
building and saw the accused no.1 sleeping on the person of PW.7 and
both were naked. The accused no.1 ran away with his clothes and
PW.11 clothed the prosecutrix and brought her back."
28. The oral evidence of PW 9 Dr. Manisha, who examined the victim
Ku. R on 2-9-2015 at General Hospital, Wardha, and PW 17 Dr. Kalpana, the
Private Medical Practitioner, who also examined the victim Ku. R, is recorded
in Para 63 of the Judgment as under :
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
27
conf. case 1.odt
"63. From medical evidence, it has been established the
prosecutrix had hymen injury which cannot be caused by any other
reason that the sexual assault and on 31-8-2015 she had abdominal
pain and burning in micturation due to sexual assault."
29. In the previous case, the conviction is based upon the sole
testimony of victim Ku. S, whereas in the subsequent case, it is based upon the
oral evidence of PW 7 Ku. R; PW 8 Ku. S, the victim in the previous case;
PW 11 Rupesh, the real brother of the victim Ku. R, as an eye-witness; and
PW 18 Aniket, the student in the same School. All these witnesses are minors
and their evidence was recorded in-camera.
Adjudication :
30. In the cases of rape on the minor child of aged 9 - 10 years, the
question of finding out the motive of the accused normally does not arise, as
the barbarous act is done to satisfy the lust of the pervert mind. The minor
victim or her close relatives, like parents, can hardly be attributed with any
motive to falsely implicate unknown person in the crime. The problem has to
be looked into with great sensitivity, based upon the understanding that the
offence alleged is committed in the isolated place, which can remotely be
accessed to by any one. In such case, there can hardly be any reason to doubt
the incident of rape described or narrated by the minor victim falling prey to
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
28
conf. case 1.odt
the lust with all disabilities on her forefront. The conviction can, therefore, be
based upon the sole version of the victim, in respect of which we do not
entertain any doubt in our mind. The rider, however, is that it must inspire
confidence of the Court and a finding in respect of it has to be recorded. While
recording the finding of conviction, the Court cannot be oblivious of the
principle that there exists no reasonable ground for the conclusion consistent
with the innocence of the accused and that every possible hypothesis, except
the one, i.e. the guilt, is proved beyond reasonable doubt, is excluded.
31. While appreciating the oral evidence in the subsequent case, the
Sessions Court records the finding in Para 15 of the Judgment that in the
cross-examination of Advocate for accused no.1, there is no denial to the facts
related to the prosecutrix narrated by PW 8. In respect of the oral evidence of
PWs 11 and 18, the Court records the finding in Para 18 that nothing could be
elicited out except denials to the suggestions put. In Para 184 of the
Judgment, the Court records the finding as under :
"184. Though learned Counsels for accused No.1 is appointed
through Legal Aid and did not make elaborate submissions, the overall
submissions made by accused in person and by his advocate
Shri B.D. Lambat is sufficient on facts to bring on record mitigating
circumstances and on legal aspects, this Court will be taking every care
to consider entire law on the subject for arriving to the decision of
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
29
conf. case 1.odt
appropriate sentence."
32. In Paras 196, 197 and 198 of the Judgment, the findings are
recorded as under :
"196. Amicus Curiae advocate P.B. Taori took the Court to the
need of social cry and submitted that undisputedly the crime is heinous
and needs to be dealt with sternly. However, he also extended his
submissions to the evidence adduced by prosecution, investigation
carried out and how the incompetence of defence lawyer affected the
trial."
"197. The force is towards the appointment of legal aid lawyer in
defence of accused no.1, who represented him in Special (Ch.) Case
No.76/2015 also. The line of his argument is that due to the fault of
defence lawyer, accused should not be penalised."
"198. He also pointed out the discrepancies in dates as displayed
from the evidence of child witness. He clarified that inspite of
availability of evidence in defence of the accused, prosecution concealed
it and placed the only material leading to the guilt of the accused. He
urged Court to go through the case diary of investigation. He relied
upon following judgments in support of his arguments."
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
30
conf. case 1.odt
33. In Paras 204, 205 and 206 of the Judgment, the findings are
recorded as under :
"204. It would also be worth to mention here that in this case
13 witnesses were already examined by my learned predecessor.
Considering the seriousness of charges against accused no.1 and even
before the final arguments were heard Amicus Curiae, adv. P.B. Taori,
was asked whether he would represent the accused to which he refused.
Inspite of that the Court looking at the gravity of offence, appointed
him as Amicus Curiae. But after the case was fixed for final arguments,
learned APP called PW.18 under Section 311 of Cr.P.C. and again the
trial was continued. Advocate Taori was diligently making enquiry of
the case till it reached up to his formal appointment as Amicus Curiae.
Therefore, now no one can discuss the flaws of legal aid appointed
defence Counsel."
"205. It is also worth to express that there are few more cases of
child rape pending before this Court in which Court is in a view to
engage an experienced and competent lawyer, who can be only from
leading professionals. However, the situation is so bad that after
appearing and examining one or two witnesses, even appointed legal
aid Counsels are withdrawing their vakalatnamas or requesting the
Court to discharge them. Had it been a case of murder or even rape of
major woman, the advocates fraternity would not have worked in such
a fashion. Because the cases are in respect of rape of tender aged girls,
the lawyers also do not want to work with such files. But the Court is
equally sensitive in striking balance to get the accused properly
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
31
conf. case 1.odt
represented."
"206. Wardha is a small city. The Court has to search for legal
aid lawyers from the available advocates from Bar Council only. Under
such situation at district places such episodes are not new."
34. After inviting our attention to the aforesaid findings, the learned
counsel for the appellant-accused brought to our notice the averments made in
Paras 21 to 23 of the Confirmation Case, wherein it is stated that the accused
was defended by Advocate B.D. Lambat in both the trials. The counsel was
also an Agricultural Officer, and after retiring from service, joined the legal
profession. He was appointed through the Legal Aid Committee without
having standing experience to conduct the cases. He was not possessing the
expertise to conduct the cases before the Sessions Court. The counsel has failed
to bring on record the inconsistencies, contradictions and omissions with
reference to previous statements of the witnesses and the questions which
should have been asked were not put and the questions which could not have
been asked in the cross-examination were put to the witnesses. The counsel
was also not conversant with the procedure. The legal aid provided to the
accused was in defeat of the provisions of Article 39A read with Sections 12
and 13 of the Legal Services Authority Act, 1987. Article 22(1) of the
Constitution of India and Sections 303 and 304 of the Code of Criminal
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
32
conf. case 1.odt
Procedure, which require the State to provide an effective legal aid to the
accused at the State expense are also pressed into service. This has violated
the guarantee contained in Article 21 of the Constitution of India.
35. It is also pointed out that the learned Judge of the Sessions Court,
after examining all the prosecution witnesses and giving finding of guilt of the
accused in the previous case, felt that the interest of the accused was not
protected and, therefore, appointed Advocate P.B. Taori, an eminent criminal
lawyer, as an Amicus Curiae in the matter and requested him to defend the
accused. Advocate P.B. Taori refused the same, as, at that time, the
prosecution had examined all the witnesses and there was no major role left to
be played by him to protect the interest of the accused-appellant. It is urged
that the Legal Aid Committee has failed to protect the interest of the accused,
and in the absence of fair and just trial, the conviction recorded in both the
cases need to be set aside.
36. The purpose of cross-examination of a witness has been explained
by the Constitution Bench of the Apex Court in the case of Kartar Singh v.
State of Punjab, reported in (1994) 3 SCC 569. Para 278 of the said decision
being relevant, is reproduced below :
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
33
conf. case 1.odt
"278. Section 137 of the Evidence Act defines what cross-
examination means and Sections 139 and 145 speak of the mode of
cross-examination with reference to the documents as well as oral
evidence. It is the jurisprudence of law that cross-examination is an
acid-test of the truthfulness of the statement made by a witness on
oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of
his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client
from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching
the credit of the said witness;
and the questions to be addressed in the course of cross-examination
are to test his veracity; to discover who he is and what is his position
in life; and to shake his credit by injuring his character."
37. In the subsequent decision of the Apex Court in the case of
Jayendra Vishnu Thakur v. State of Maharashtra, reported in
(2009) 7 SCC 104, it is reiterated in Para 24 as under :
"24. A right to cross-examine a witness, apart from being a natural
right is a statutory right. Section 137 of the Evidence Act provides for
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
34
conf. case 1.odt
examination-in-chief, cross-examination and re-examination.
Section 138 of the Evidence Act confers a right on the adverse party to
cross-examine a witness who had been examined in chief, subject of
course to expression of his desire to the said effect. But indisputably
such an opportunity is to be granted. An accused has not only a
valuable right to represent himself, he has also the right to be
informed thereabout. If an exception is to be carved out, the statute
must say so expressly or the same must be capable of being inferred by
necessary implication. There are statutes like the Extradition Act,
1962 which excludes taking of evidence vis-a-vis opinion."
38. In the decision of Zahira Habibullah Sheikh (5) v. State of Gujarat,
reported in (2006) 3 SCC 374, it is held in Paras 35, 36 and 37, the relevant
portion of which is reproduced below :
"35. ... If a criminal course is to be an effective instrument in
dispensing justice, the Presiding Judge must cease to be a spectator
and a mere recording machine by becoming a participant in the trial
evincing intelligence, active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find out the truth,
and administer justice with fairness and impartiality both to the
parties and to the community it serves. The courts administering
criminal justice cannot turn a blind eye to vexatious or oppressive
conduct that has occurred in relation to proceedings, even if a fair
trial is still possible, except at the risk of undermining the fair name
and standing of the judges as impartial and independent
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
35
conf. case 1.odt
adjudicators."
"36. The principles of rule of law and due process are closely linked
with human rights protection. Such rights can be protected effectively
when a citizen has recourse to the courts of law. It has to be
unmistakably understood that a trial which is primarily aimed at
ascertaining the truth has to be fair to all concerned. There can be no
analytical, all comprehensive or exhaustive definition of the concept of
a fair trial, and it may have to be determined in seemingly infinite
variety of actual situations with the ultimate object in mind viz.
Whether something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage of
justice has resulted. It will not be correct to say that it is only the
accused who must be fairly dealt with. That would be turning a
Nelson eye to the needs of society at large and the victims or their
family members and relatives. Each one has an inbuilt right to be
dealt with fairly in a criminal trial. Denial of a fair trial is as much
injustice to the accused as is to the victim and the society. Fair trial
obviously would mean a trial before an impartial judge, a fair
prosecutor and an atmosphere of judicial calm. Fair trial means a
trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated. If the
witnesses get threatened or are forced to give false evidence that also
would not result in a fair trial. The failure to hear material witnesses
is certainly denial of fair trial."
"37. A criminal trial is a judicial examination of the issues in the case
and its purpose is to arrive at a judgment on an issue as to a fact or
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
36
conf. case 1.odt
relevant facts which may lead to the discovery of the fact in issue and
obtain proof of such facts at which the prosecution and the accused
have arrived by their pleadings; the controlling question being the
guilt or innocence of the accused. Since the object is to mete out
justice and to convict the guilty and protect the innocent, the trial
should be a search for the truth and not a bout over technicalities,
and must be conducted under such rules as will protect the innoncent,
and punish the guilty. The proof of charge which has to be beyond
reasonable doubt must depend upon judicial evaluation of the totality
of the evidence, oral and circumstantial, and not by an isolated
scrutiny."
39. In the decision of the Apex Court in the case of Mohd. Hussain alias
Zulfikar Ali v. State (Government of NCT of Delhi), reported in
(2012) 2 SCC 584, the decision of the Allahabad High Court in the case of Ram
Awadh v. State of U.P., reported in 1990 Cri LJ 4093 (All), was quoted with
approval. Para 14 in Ram Awadh's case, quoted with approval, is reproduced
below :
"14. The requirement of providing counsel to an accused at the
State expense is not an empty formality which may be not by merely
appointing a counsel whatever his calibre may be. When the law
enjoins appointing a counsel to defend an accused, it means an
effective counsel, a counsel in real sense who can safeguard the interest
of the accused in best possible manner which is permissible under law.
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
37
conf. case 1.odt
An accused facing charge of murder may be sentenced to death or
imprisonment for life and consequently his case should be handled by
a competent person and not by a novice or one who has no
professional expertise. A duty is cast upon the judgments before whom
such indigent accused are facing trial for serious offence and who are
not able to engage a counsel, to appoint competent persons for their
defence. It is needless to emphasis that a Judge is not a prosecutor
and his duty is to discern the truth so that he is able to arrive at a
correct conclusion. A defence lawyer plays an important role in
bringing out the truth before the Court by cross-examining the
witnesses and placing relevant materials or evidence. The absence of
proper cross-examination may at times result in miscarriage of justice
and the Court has to guard against such an eventuality."
It is held in Para 23 of Mohd. Hussain alias Zulfikar Ali's case as
under :
"23. The prompt disposition of criminal cases is to be commended
and encouraged. But in reaching that result, the accused charged with
a serious offence must not be stripped of his valuable right of a fair
and impartial trial. To do that, would be negation of concept of due
process of law, regardless of the merits of the appeal. The Criminal
Procedure Code provides that in all criminal prosecutions, the accused
has a right to have the assistant of a counsel and the Criminal
Procedure Code also requires the court in all criminal cases, where the
accused is unable to engage counsel, to appoint a counsel for him at
the expenses of the State. Howsoever guilty the appellant upon the
inquiry might have been, he is until convicted, presumed to be
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
38
conf. case 1.odt
innocent. It was the duty of the court, having these cases in charge, to
see that he is denied no necessary incident of a fair trial."
It is held in Para 26 of the said decision that "The Criminal
Procedure Code ensures that an accused gets a fair trial. It is essential that the
accused is given a reasonable opportunity to defend himself in the trial. He is
also permitted to confront the witnesses and other evidence that the
prosecution is relying upon. He is also allowed the assistance of a lawyer of
his choice, and if he is unable to afford one, he is given a lawyer for his
defence. The right to be defended by a learned counsel is a principal part of
the right to fair trial. If these minimum safeguards are not provided to an
accused; that itself is "prejudice" to an accused."
40. In the aforesaid decision of the Apex Court, two different opinions
were expressed as to whether there should be a de novo trial in a situation
where the accused is denied of a fair trial and an effective opportunity to
defend himself. The matter was referred to a Larger Bench, which considered
the issue in its decision in the case of Mohd. Hussain alias Julfikar Ali v. State
(Government of NCT of Delhi), reported in (2012) 9 SCC 408. It is held in
Para 41 of the said decision as under :
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
39
conf. case 1.odt
"41. The appellant court hearing a criminal appeal from a
judgment of conviction has power to order the retrial of the accused
under Section 386 of the Code. That is clear from the bare language
of Section 386(b). Though such power exists, it should not be
exercised in a routine manner. A de novo trial or retrial of the
accused should be ordered by the appellant court in exceptional and
rare cases and only when in the opinion of the appellate court such
course becomes indispensable to avert failure of justice. Surely this
power cannot be used to allow the prosecution to improve upon its
case or fill up the lacuna. A retrial is not the second trial; it is
continuation of the same trial and same prosecution. The guiding
factor for retrial must always demand of justice. Obviously, the
exercise of power of retrial under Section 386(b) of the Code, will
depend on the facts and circumstances of each case for which no
straitjacket formula can be formulated but the appeal course must
closely keep in view that while protecting the right of an accused to
fair trial and due process, the people who seek protection of law do not
lose hope in legal system and the interests of the society are not
altogether overlooked."
41. Keeping in view the aforestated law laid down by the Apex Court,
we have gone through the cross-examination conducted by the learned counsel
appointed from the Legal Aid to defend the accused in both the matters. We
have also gone through the findings recorded in both the matters by the
Special Court. We find that no efforts are made to bring on record the
inconsistencies, contradictions and omissions in the cross-examination of the
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
40
conf. case 1.odt
witnesses. Certain questions which could not have been asked in the
cross-examination were put and the questions which should have been asked
were ignored. The lawyer appointed to represent the accused is found to be
totally inexperienced in conducting the Sessions Trial. The truthfulness of the
statements made by the witnesses could not be tested; as a result, the
opportunity to cross-examine the witnesses became illusory. The accused has
lost completely his right to defend, as the counsel appointed from legal aid has
failed to protect his interest. As a result, the Sessions Court was also required
to take assistance of another counsel who was helpless in view of the evidence
brought on record.
42. When a person is accused of the offences of a serious nature for
which a penalty of death sentence could also be imposed, the Sessions Court
was required to be more sensitive to the right of defence, which means a right
to get effectively defended through a competent and experienced lawyer, who
can safeguard the interest of the accused in a best possible manner, as
permissible in law. The requirement of providing a lawyer to the accused at
the State expense is not an empty formality. While appointing a lawyer
through legal aid, the attention is required to be made to the provisions of the
Legal Services Authority Act, 1987. The anxiety of the Court should be to see
that the constitutional right to effectively defend is protected and it is not
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
41
conf. case 1.odt
made illusory. We find this case to be exceptional where there is complete
failure of justice resulting in denial of free and fair, reasonable and just trial,
which is the constitutional guarantee contained in Articles 21, 22(1) of the
Constitution of India read with Section 304(1) of Cr.P.C. In terms of the
decisions of the Apex Court in the case of Mohd. Hussain alias Julfikar Ali, cited
supra, in our view, the conviction of the accused Raju recorded by the Special
Court needs to be set aside and the matter is required to be remanded back to
the Special Court to conduct a de novo trial from the stage of framing of the
charge itself, as there has to be a material, sufficient to frame a charge, to be
looked into by the Court and the counsel.
43. In case of repeated offence of rape either on the same woman or
different woman at different times, a separate charge and trial for each such
offence would be the rule under Section 218 of the Code of Criminal
Procedure (Cr.P.C.). If a person is convicted for more offences of rape than
one, then for each of such offence he would be liable for punishment for a
term not less than ten years, which may be extendable to imprisonment for
life means for the remainder of the natural life of the accused and fine. If for
previous conviction the sentence imposed is for such a life imprisonment, any
sentence upon subsequent conviction whether for a term or for life
imprisonment would naturally cover sentence of life imprisonment imposed in
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
42
conf. case 1.odt
previous conviction. If in subsequent conviction the sentence is imposed for
such life imprisonment, obviously it would cover the sentence previously
imposed, if any, for a term. If the punishment in previous and subsequent
conviction is for a term, the Court invoking its jurisdiction under Section 427
of Cr.P.C. can direct the sentence to run concurrently or consecutively, but the
sentence would not be for an imprisonment for life.
44. Section 219 of Cr.P.C. dealing with three offences of same kind
within a year may be charged together, is held to be an enabling provision and
operates as an exception to Section 218 of Cr.P.C., requiring separate charge
for distinct offences to be tried separately. When a person is accused of more
offences than one of the same kind committed within a space of twelve months
from the first to the last of such offences, whether in respect of the same
person or not, Section 219(1) of Cr.P.C. states that he may be charged with
and tried at one trial for, any number of them not exceeding three. Sub-
section (2) therein clarifies that the offences are of the same kind when they
are punishable with the same amount of punishment under the same section of
the Indian Penal Code or of any special or local law. In such a case, the Court
may invoke the power under Section 31(1) of Cr.P.C. if a person is convicted
for all such offences, to direct running of sentences imposed as concurrently or
consecutively. Significantly, the trial being one, there would be no question of
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
43
conf. case 1.odt
'previous' or 'subsequent' conviction, even if there is conviction recorded and
separate sentences are imposed for each such charge or the offence.
45. In both the cases, the accused Raju is convicted for the offence
punishable under Section 376(2)(i) of IPC for which maximum punishment
prescribed is of the imprisonment for life which means for the remainder of his
natural life with fine and not of the death. It is only if Section 376-E of IPC is
attracted that the punishment of death sentence can be invoked. In the light of
the such position, we keep the question of framing the charges against the
accused persons and being tried them at one trial, as contemplated by sub-
section (1) of Section 219 of Cr.P.C. open to be decided by the Special Court, if
any such application is made by the accused persons. We find that the lawyer
engaged to defend the accused has also failed to apply his mind and to make
an application for that purpose. We also refrain from expressing any opinion as
to whether in such a situation the provision of Section 376-E of IPC would be
attracted or not. This question can also be decided by the Special Court.
46. The conviction of other accused persons, viz. Madan Lahanu
Khadse, the Head Master; and Ku. Vaishali Dayalu Dighore, the Hostel
Superintendent, is connected with the conviction of accused Raju and hence
their conviction also cannot be sustained in the Confirmation Case. We set
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::
44
conf. case 1.odt
aside the same.
47. In the result, we partly allow all the three appeals and pass an order
as under :
: O R D E R :
(1) The judgments and orders dated 5-10-2017 delivered in Special (Ch.) Case No.76 of 2015, and dated 11-1-2018 delivered in Special (Ch.) Case No.77 of 2015 by the Special Judge for POCSO, Wardha, are hereby quashed and set aside. (2) The matter is remitted back to the Special Court for conducting a de novo trial in respect of both the cases, viz. Special (Ch.) Cases No.76 and 77 of 2015 from the stage of framing of the charge.
(3) The Special Court to make an endeavour to appoint a competent and experienced lawyer to defend the accused persons, keeping in view the relevant provisions of the Legal Services Authority Act, 1987, and thereafter proceed to frame the charge and conduct the trial and complete it within a period of six months from the date of framing of the charge.
::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 ::: 45
conf. case 1.odt (4) R & P be sent back to the Sessions Court immediately. (Arun D. Upadhye, J.) (R.K. Deshpande, J.) P.D. Lanjewar, Private Secretary ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:35:43 :::