Gujarat High Court
Chhotelal Mohanlal Chamar vs State Of Gujarat on 9 May, 2018
Author: A.Y. Kogje
Bench: M.R. Shah, A.Y. Kogje
R/CR.A/402/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 402 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/-
and
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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CHHOTELAL MOHANLAL CHAMAR
Versus
STATE OF GUJARAT
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Appearance:
MR NEERAJ SONI(3433) for the PETITIONER(s) No. 1
MR RONAK RAVAL, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 09/05/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE)
1. This appeal is preferred under Section 374 of the Criminal Procedure Code against judgment and order of conviction dated 07.09.2015 by Special Judge (POCSO), Mahesana in Special (POCSO) Case No.35 of 2014. Under the impugned judgment and order, the appellant is Page 1 of 23 R/CR.A/402/2018 JUDGMENT convicted for offences under Sections 363, 342, 376(A) and 302 of the Indian Penal Code and Section 6 and 10 of the POCSO Act and sentenced as under:-
Sr. No. Section Sentence 1 363 of IPC 2 year R.I., fine of Rs.500/- and in default 5 days S.I. 2 342 of IPC 6 months R.I. 3 376(A) of IPC Life imprisonment, fine of Rs.5000/- and in default 50 days S.I. 4 302 of IPC 30 year R.I. 5 6 of the POCSO Act 10 year R.I., fine of Rs.2000/- and in default 20 days S.I. 6 10 of the POCSO Act 5 year R.I., fine of Rs.1000/- and in default 10 days S.I. 2. The brief facts are that an FIR being I-CR
No.97 of 2013 came to be registered with Nandasan Police Station for offences under Sections 363, 342, 376(A) and 302 of the Indian Penal Code, wherein the informant Pappubhai Manubhai Kalara (Bhil) alleged that the appellant was serving in Bajan Tiles Factory along with him and on 26.10.2013 in the afternoon hours, the appellant had induced informant's three and half year old daughter by offering chocolates and biscuits and took her to his room, committed her rape and murder and escaped from there after putting dead both of the daughter of the informant near door of his room.
2.1 The appellant was thereafter arrested and after due investigation, was charge sheeted for offences under Sections 363, 342, 376(A) and 302 of the Indian Penal Code and Sections 6 and 10 of the POCSO Act. Page 2 of 23
R/CR.A/402/2018 JUDGMENT 2.2 After complying with the formalities under
Section 307 of the Criminal Procedure Code, sessions came to be committed and vide Exh.3, charge came to be framed. Vide Exh.4, plea came to be recorded wherein the appellant pleaded not guilty and hence, trial commenced. 2.3 During trial, the prosecution examined following witnesses:-
Sr. Name of the witness Exh. No.
No.
1 Deposition of Dr.Manshi Vipulkumar Shah 8
2 Deposition of Dr.Chirag Prahladbhai Patel 13
3 Deposition of panch witness Parmar Mayurkumkar Naginbhai 18
4 Deposition of panch witness Aslambhai Ismailbhai Kureshi 22
5 Deposition of complainant - Kalara (Bhil) Pappubhai Manubhai 24
6 Deposition of witness Rakeshji Khodaji 26
7 Deposition of witness Lilaben Kapurbhai Parmar 27
8 Deposition of witness Paliben Pappubhai Kalara 29
9 Deposition of panch witness Keshaji Jenaji Thakore 31
10 Deposition of panch witness Rajubhai Kantibhai Parmar 38
11 Deposition of panch witness Nareshsinh Ravjibhai Chavada 45
12 Deposition of PSO Mabubhai Majibhai Bodat 46
13 Deposition of IO Kantubhai Lalubha Jadeja 53
2.4 Through the aforesaid witnesses, the
prosecution brought on record the following documentary evidence:-
Sr. Name of the witness Exh. No.
No.
1 Medical certificate of the accused regarding his body check up 9
(CHC, Nandasan)
2 Police Yadi regarding body check up of the accused 10
3 Original letter sent to DNA Division, FSL, Gandhinagar sending 11
therewith blood sample of the accused for DNA test Page 3 of 23 R/CR.A/402/2018 JUDGMENT 4 Sthalpatra of form "B" regarding sending of blood sample of the 12 accused in sealed cover to FSL for investigation 5 PM note of the deceased 14 6 Certificate showing preliminary reason for death of the deceased 15 7 Certificate showing final cause of death after receipt of FSL report 16 8 Police Yadi 17 9 Panchnama of recovery of muddamal cloth and plastic mat 19 10 Panch slips on muddamal article Nos.10 and 11 20,21 11 Complaint of the complainant 25 12 Inquest panchnama 28 13 Panchnama of scene of offence 32 14 Panch slips on muddamal article Nos.1 to 5 33 to 37 15 Panchnama of recovery of cloths worn by the deceased at the time 39 of offence 16 Panch slips on muddamal article Nos.6 to 8 40 to 42 17 Panchnama of recovery of T shirt worn by the deceased at the 43 time of offence 18 Panch slips on muddamal article No.9 44 19 Order deputing investigation 49 20 Copy of station diary registering offence 50 21 Muddamal outward entry 16(A) 22 Two receipts pertaining to receipt of muddamal by the FSL 54, 55 23 Report of forensic examination 56 24 FSL report 57 25 FSL report of Biology Department 58 26 FSL report of Serological Department 59 27 FSL report of viscera 60 28 Sthalpatra of police report sent with dead body 61 29 Original preliminary report of Forensic Science Laboratory of 62 District Superintendent of Police Van 30 Closing pursis from complainant side 63 2.5 Upon conclusion of trial, further statement of the appellant under Section 313 of the Criminal Procedure Code was recorded where he claimed to be innocent and that he has been falsely implicated in the offence.
2.6 Relying upon the evidences produced on record
by the prosecution, the Special Court proceeded to
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conclude that the offences under Sections 363, 342,
376(A) and 302 of the Indian Penal Code and Sections 6 and 10 of the POCSO Act are proved beyond reasonable doubt, thereby convicting the appellant for the same.
3. For the reasons recorded in order dated 09.05.2018 in Criminal Misc.Application No.1 of 2018, the appeal is taken up for final hearing.
4. Learned Advocate for the appellant submitted that before concluding against the appellant, the trial Court has failed to take into consideration the material contradictions in the oral testimony of the prosecution witnesses. It is submitted that the version given by each of the prosecution witnesses does not match with the version given other prosecution witnesses, thereby creating doubt in the case of the prosecution, for which benefit be given to the appellant.
4.1 It is submitted that the entire case is based on circumstantial evidence and that there are many gaps in each of the circumstances and therefore, chain of events cannot be said to be complete to convict the appellant.
4.2 It is submitted that if the deposition of the informant at Exh.24 is taken into consideration, there is gross discrepancy in the initial portion of his Page 5 of 23 R/CR.A/402/2018 JUDGMENT deposition and later part of the same. It is submitted that in the initial portion, the informant has deposed that the appellant ran away as soon as he show the informant and others coming towards him when he was locking the door of his room and in the later part of the very deposition, he has deposed that the appellant was present at the place of offence when Sarpanch of the village was informed about the incident and thereafter called the appellant at the place of offence. 4.3 The other discrepancy relied upon by learned Advocate for the appellant is regarding the version in the FIR about the informant informing Mukesh Rana, who is a Supervisor in the factory, whereas in the deposition he has expressed his ignorance as to whether said Mukesh Rana opened the room of the appellant. On this basis, it is argued that there is probability that the room where the offence was committed must have been visited by other persons prior to investigation being carried out. 4.4 It is further submitted that said Mukesh Rana was not examined as a witness when he appears to have played role during the investigation and was an important witness, while the prosecution has failed to explain non- citing and non-examining Mukesh Rana as a witness.
4.5 It is argued that on the basis of the
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deposition of the Dr.Manshi Vipulkumar Shah-PW No.1-
Exh.8, who examined the appellant, it is clear that the appellant had not suffered any injury on his private parts and there was no smegma on his private part. Therefore, offence of rape cannot be attributed to him. Learned Advocate for the appellant also relied upon her opinion where she has opined that she cannot make a definite statement whether the appellant had entered into any sexual intercourse.
4.6 It is also submitted that Dr.Chirag Prahladbhai Patel-PW No.2-Exh.13, who carried out autopsy, has deposed that he cannot definitely depose regarding commission of rape. He has also agreed that viscera report is negative.
4.7 Learned Advocate for the appellant also argued regarding discrepancy in location of the body of the deceased. He has pointed out that there is discrepancy in such location in the evidence of one Lilaben Parmar-PW No.7-Exh.27, where she has stated that the body of the deceased was found in-between the rooms of the appellant and the informant. He has also tried to point out another discrepancy between the deposition of Paliben Kalara-PW No.8-Exh.29-mother of the deceased and Lilaben Parmar-PW No.7-Exh.27-relative of the deceased on the ground that one witness says that house of the informant Page 7 of 23 R/CR.A/402/2018 JUDGMENT and the appellant are opposite to each other whereas PW No.8 says that both the houses are in one line. 4.8 Learned Advocate for the appellant also argued that how name of the appellant has surfaced in the investigation as an accused is very unclear as both PSO- PW No.12 and Investigation Officer-PW No.13 have deposed that the name of the offender was not mentioned in the telephone worthy nor was it mentioned in the inquest panchnama. Then under what circumstances, the appellant was connected with the crime is not very clear. 4.9 It is submitted that the witnesses have not supported the case of the prosecution to connect the appellant with crime. Even panch witnesses of collecting articles from the scene of offence, etc. are not supporting the case of the prosecution, thereby clearly creating doubt on the prosecution theory insofar as scientific evidence against the appellant is concerned. Learned Advocate for the appellant therefore prays for complete acquittal.
5. As against this, learned APP has submitted that the offence is of a grossest nature, wherein minor aged three and half years has been sexually assaulted and murdered. It is submitted that there is enough evidence on record in the form of medical evidence to prove Page 8 of 23 R/CR.A/402/2018 JUDGMENT commission of rape and death of the deceased out of exasperation.
5.1 It is submitted that Rakeshji Khodaji Thakore- PW No.6-Exh.26, who is owner of the shop from where the appellant had purchased wafers and chocolates, wrappers of which were found at the place of offence, has supported the theory of the prosecution that the appellant had used wafers and chocolates to induce the deceased.
5.2 It is submitted that the panch witness of the scene of offence - Keshaji Jenaji Thakore-PW No.9-Exh.31 has completely supported the case of the prosecution in drawing of the panchnama of scene of offence. From the scene of offence, oil stains were found on the floor and the same oil stains were found on the clothes of the appellant as well as on the clothes of the deceased. The piece of clothe, underwear and vaginal swipe, which were received during the course of investigation under the panchnama were also supported by this witness. 5.3 It is further submitted that there is even enough scientific evidence by which presence of DNA of the appellant was found on the clothes of the deceased to directly connect the appellant with the offence.
5.4 It is therefore submitted that though the case
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being of circumstantial evidence, the prosecution is able to establish all the links to complete the chain of circumstances to connect the appellant with the offence and hence, learned APP prays for rejection of the appeal.
6. Heard learned Advocates for the rival parties and perused Records and Proceedings.
7. Dr.Chirag Patel-PW No.2-Exh.13, who has performed the postmortem of the dead body of the deceased, has noted in column No.15 of the postmortem note regarding swelling in private part of the deceased with radish coloured mucous of vaginal tract and also rapture of hymen. In column No.17, he has recorded about multiple bruises on face and abrasion on inner side of lips and nail marks on upper and lower limbs. The postmortem note is exhibited at Exh.14. This witness has clearly deposed that in view of the injuries sustained and mentioned in column No.15 of the postmortem note, he has opined that the deceased was raped. He has also deposed that by the injuries mentioned in column No.17, which were caused on account of pressing of mouth and causing suffocation, pumping of heart had stopped leading to stoppage of circulation of blood to vital organs of body, leading to her death. In the medical certificate produced at Exh.15, cause of death is shown to be by asphyxia due to smothering.
Page 10 of 23
R/CR.A/402/2018 JUDGMENT 8. Dr.Manshi Vipulkumar Shah-PW No.1-Exh.8, who
had examined the appellant and issued certificate, has deposed that when the appellant was examined, he himself had given history which she has recorded in her handwriting at Exh.9, which is as under:-
"Accused of Rape, Chotelal Mohanlal Chamar, 40 yr examined after taking written consent.
History taken from Accused.
After coming from Night duty Accused had taken Alcohol on 26/10/13.
Victim (Priyanka 3/½ yr) came to his Quarter at 1.00 pm then he raped on her and kill her by putting clothes on her mouth for 5 min.
Then he keep her in corridor of his home."
8.1 She has also identified her signature on seal regarding taking of samples for DNA test and forwarding the same to FSL. The necessary documentation has been exhibited and identified by this witness at Exhs.9, 10 and 11.
8.2 This witness in her cross-examination has deposed that the accused had not suffered any physical injury even on his private parts. However, she has denied the suggestion put forth by the defence that in case of rape of a minor, accused possibly would receive Page 11 of 23 R/CR.A/402/2018 JUDGMENT some injury. The clear-cut denial recorded in this regard would therefore not support the argument advanced by learned Advocate for the appellant that this witness has ruled out possibility of rape on account of non- receiving of injury by the appellant during commission of offence.
9. Pappubhai Manubhai Kalara (Bhil)-PW No.5-Exh.24 is the informant. He has clearly deposed that when he returned after looking for his daughter all over, at that time, on returning to home, he show the appellant closing door of his room and at that time, he was putting his daughter near closed doors and ran away from there. He has also deposed that when he came near to his daughter, he show blood stains on her private part and on her face. He has also deposed that the accused being present there when police arrived, police arrested him. In the cross- examination, questions were posed to this witness regarding information given by him to the Sarpanch of the village Jayantibhai Mukhi, who thereafter called police. Questions were also posed with regard to action of one Mukesh Rana, who was supervisor of the company. Questions were posed with regard to Mukesh Rana having entered into the room of the accused before investigation. He has further denied the suggestion made that he had seen some person putting her daughter near Page 12 of 23 R/CR.A/402/2018 JUDGMENT the door and on account of darkness, he was not able to see who such person was. Such suggestion was categorically denied by this witness.
10. Keshaji Jenaji Thakore-PW No.9-Exh.31 is the panch witness of the place of offence, from where incriminating material connecting with the offence was collected. This witness has supported the case of the prosecution and through him, panchnama of the muddamal articles from scene of offence are exhibited vide Exhs.32 and 33.
11. Rajubhai Kantibhai Parmar-PW No.10-Exh.38 is the panch witness of the panchnama of recovery of clothes from the appellant-accused. This witness has not supported the case of the prosecution and has been declared hostile. Similarly, Nareshsinh Ravjibhai Chavda-PW No.11-Exh.45, who is the second panch witness, has also not supported the case of the prosecution, insofar as panchnama of seizure of clothes of the accused is concerned. These two witnesses, however, have identified their signatures on the panchnama and for that purpose, slips on the panchnama with their signatures have been exhibited vide Exhs.39 and 44.
12. The prosecution has thereafter relied upon the deposition of the Investigation Officer for the purpose Page 13 of 23 R/CR.A/402/2018 JUDGMENT of seizure of clothes. However, panchnama of seizure of clothes may not be considered to be so relevant so as to disconnect the appellant from the offence, more particularly in face of other cogent material available on record and connecting the appellant with the offence. The scientific evidence on the basis of DNA reports is exhibited vide Exh.56, wherein observations of the scientific experts are recorded as under:-
"Observations:
From the above results, using AmpFeSTR Y-Filer Kit it is observed that:
* Alleles of amplified loci of male DNA profile could not be obtained from blood stain of Exhibit: A: Cotton Thread (source of Scene of Offence) might be due to severe degradation.
* Alleles of amplified loci of male DNA profile obtained from blood stain of Exhibit: C: Jangiyo (source of Scene of Offence) found discordant with alleles of amplified loci of male DNA profiles obtained from stains of Exhibit: G(B&S): Jangiyo (source of Chotelal Mohanlal Chamar) and with alleles of amplified loci of male DNA profiles obtained from Exhibit:M2:Blood Sample (source of Chotelal Mohanlal Chamar).
* Alleles of amplified loci of male DNA profile obtained from stains of Exhibit:
G(B&S): Jangiyo (source of Chotelal Mohanlal
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Chamar), Exhibit:G(S): Jangiyo (source of
Chotelal Mohanlal Chamar), Exhibit: I : Pants (source of Chotelal Mohanlal Chamar) found concordant with alleles of amplified loci of male DNA profiles obtained from Exhibit:M2:Blood Sample (source of Chotelal Mohanlal Chamar).
* Multiple alleles of amplified loci of male DNA profile obtained from blood stains of Exhibit: J: Cloth Piece (stated as 'used by accused at the time of offence') found concomitant with alleles of amplified loci of male DNA profiles obtained from Exhibit:M2:Blood Sample (source of Chotelal Mohanlal Chamar) and male DNA profile obtained from blood stain of Exhibit: C: Jangiyo (source of Scene of Offence).
OBSERVATIONS :
From the above results, using AmpF l STR Identifier Plus Kit it is observed that ;
* Multiple alleles of the amplified loci of autosomal DNA profile obtained from Exhibit no: A : Cotton Thread: Blood Stains (source of Scene of Offence), does not found full concomitant with alleles of the amplified loci of autosomal DNA profile obtained from Exhibit no: C : Jangiyo (source of Scene of Offence) and Exhibit: M2 : Blood Sample (source of Chotelal Mohanlal Chamar) along with a female origin amplified loci of autosomal DNA profiles obtained from Exhibit no: L : Vaginal Swab (source of Priyanka D/O Pappubhai Kalara), Page 15 of 23 R/CR.A/402/2018 JUDGMENT might be due to severe degradation.
* Alleles of amplified loci of autosomal DNA profile obtained from blood stain of Exhibit: C : Jangiyo (source of Scene of Offence) found discordant with alleles of amplified loci of autosomal DNA profiles obtained from stains of Exhibit: G(B&S) : Jangiyo (source of Chotelal Mohanlal Chamar) and with alleles of amplified loci of autosomal DNA profile obtained from Exhibit: M2: Blood Sample (source of Chotelal Mohanlal Chamar).
* Alleles of the amplified loci of autosomal DNA profiles obtained from Exhibit no: F : T- Shirt : Blood Stain (source of Scene of Offence); Exhibit: K : Mat: Blood Stain (stated as 'used by accused at the time of offence') found concordant with alleles of the amplified loci of autosomal NDA profiles obtained from Exhibit: L : Vaginal Swab (source of Priyanka D/O Pappubhai Kalara). Presence of semen could not be detected, in received samples belonged to Priyanka D/O Pappubhai Kalara; Exhibit: L - Vaginal Swab; hence autosomal DNA profile could not be obtained indicating origin of male.
* Multiple alleles of the amplified loci of autosomal DNA profile obtained from Exhibit no: G : Jangiyo: Blood mixed Semen Stains, found concomitant with alleles of the amplified loci of autosomal DNA profiles obtained from Exhibit no: F : T-Shirt : Blood Stain (source of Scene of Offence); Exhibit : K : Mat : Blood Stain (stated as 'used by accused at the time of Page 16 of 23 R/CR.A/402/2018 JUDGMENT offence'); Exhibit: L : Vaginal Swab: Blood Stain (source of Priyanka D/O Pappubhai Kalara) and Exhibit: M2 : Blood Sample (source of source of Chotelal Mohanlal Chamar).
* Alleles of the amplified loci of autosomal DNA profile obtained from Exhibit no: G: Jangiyo: Semen Stains, found concordant with alleles of the amplified loci of autosomal DNA profiles obtained from Exhibit no: I : Pants : Blood Stain (source of Chotelal Mohanlal Chamar) and Exhibit: M2 : Blood Sample (source of source of Chotelal Mohanlal Chamar).
* Multiple alleles of the amplified loci of autosomal DNA profile obtained from Exhibit no: J : Cloth Piece : Blood Stains (stated as 'used by accused at the time of offence'), found concomitant with alleles of amplified loci of autosomal DNA profiles obtained from blood stain of Exhibit: C : Jangiyo (source of Scene of Offence); Exhibit no: F : T-Shirt : Blood Stain (source of Scene of Offence); Exhibit: K : Mat: Blood Stain (stated as 'used by accused at the time of offence'); Exhibit: L : Vaginal Swab: Blood Stain (source of Priyanka D/O Pappubhai Kalara) and Exhibit: M2 : Blood Sample (source of source of Chotelal Mohanlal Chamar).
13. The conclusions drawn on the basis of the above observations are as under:-
"CONCLUSION :Page 17 of 23
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* Multiple alleles of the amplified loci of
autosomal DNA profile obtained from Blood Stain of Cotton Thread (Exhibit no: A : source of Scene of Offence) might be due to severe degradations, hence it does not fully concomitant with alleles of the amplified loci of autosomal DNA profiles obtained from Jangiyo (Exhibit: C : source of Scene of Offence), Blood Sample (Exhibit: M2 : source of Chotelal Mohanlal Chamar) along with a female origin amplified loci of autosomal DNA profile obtained from Vaginal Swab (Exhibit: L : source of Piyanka D/O Pappubhai Kalara).
* Alleles of amplified loci of male (Y - chromosomal) DNA profile and autosomal DNA profile obtained from blood stain of Jangiyo (Exhibit: C : source of Scene of Offence) found concomitant with alleles of amplified loci of male (Y - chromosomal) DNA profile and autosomal DNA profile obtained from stains of Cloth Piece (Exhibit: J : stated as 'used by accused at the time of offence'), but found dissonant with alleles of amplified loci of male (Y - chromosomal) DNA profile and autosomal DNA profiles obtained from Blood Sample (Exhibit: M2 : source of Chotelal Mohanlal Chamar). The contributor of the DNA profile of blood stain of Jangiyo (Exhibit: C :
source of Scene of Offence) is unknown human male other than Chotelal Mohanlal Chamar.
* The STR profile obtained from Vaginal Swab (Exhibit no: L) stated to be the victim deceased Priyanka D/O Pappubhai Kalara, is a Page 18 of 23 R/CR.A/402/2018 JUDGMENT single source profile. Alleles of the amplified loci of autosomal DNA profiles obtained from T-Shirt : (Exhibit no: F : Blood Stain : source of Offence); Mat: (Exhibit: K : Blood Stain : stated as 'used by accused at the time of offence') found concordant with alleles of the amplified loci of autosomal DNA profiles obtained from Vaginal Swab : (Exhibit: L : source of Priyanka D/O Pappubhai Kalara), revealing the same human female source.
* Alleles of amplified loci of male (Y - chromosomal) DNA profile and autosomal DNA profile obtained from Blood Samples (Exhibit:
M2 and Exhibit: MM) found concordant with
alleles of amplified loci of male (Y -
Chromosomal) DNA profile and autosomal DNA
profile obtained from Jangiyo (Exhibit: G) and Pants (Exhibit: I). All said exhibits were stated a source of Chotelal Mohanlal Chamar.
* Alleles of amplified loci of male (Y - chromosomal) DNA profile and autosomal DNA profile obtained from Jangiyo (Exhibit : G : Blood with Semen Stain) found concomitant with alleles of amplified loci of male (Y - chromosomal) DNA profile and autosomal DNA profile obtained from Blood Samples (Exhibit: M2 and Exhibit: MM : source of Chotelal Mohanlal Chamar) and alleles of the amplified loci of autosomal DNA profiles obtained from Vaginal Swab : (Exhibit: L : source of Priyanka D/o Pappubhai Kalara).
* Alleles of amplified loci of male (Y -Page 19 of 23
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chromosomal) DNA profile and autosomal DNA
profile obtained from Cloth Piece (Exhibit: J : Blood Stain : stated as 'used by accused at the time offence') found concomitant with alleles of amplified loci of male (Y - chromosomal) DNA profiles and autosomal DNA profiles obtained from Blood Samples (Exhibit: M2 and Exhibit: MM : source of Chotelal Mohanlal Chamar) and Jangiyo (Exhibit: C : Blood Stain: source of Scene of Offence), along with alleles of the amplified loci of autosomal DNA profiles obtained from Vaginal Swab : (Exhibit: L : source of Priyanka D/O Pappubhai Kalara).
* Results regarding biological and serological examinations are mentioned in the table.
Result regarding chemical examination from Chemistry Division of this laboratory is enclosed at last.
Note: 1. Results relate only to exhibits tested."
14. From the conclusions drawn, it can be seen that Mat Exh.12 and the clothe piece-Exh.5, which were found from the scene, i.e. from the room of the accused under the panchnama, show presence of DNA of the deceased. The FSL report also shows presence of oil on the clothes of the deceased and the same oil is found from on the clothes of the appellant and from floor of the scene of offence. The aforementioned DNA profile results and the Page 20 of 23 R/CR.A/402/2018 JUDGMENT FSL reports are clinching evidences to directly connect the appellant with the crime of rape as well as murder.
15. The Sessions Court has therefore closely perused the evidence on record and after elaborate discussion on the scientific evidence has arrived at a just and proper conclusion holding the accused guilty of the charge.
16. In view of the aforementioned analysis of the evidence, argument regarding discrepancy in the version of the two witnesses regarding location of the dead body near door of the room of the appellant cannot be considered to be a discrepancy which goes to the root of the matter so as to vitiate the findings of the Sessions Court to the benefit of the appellant. The submission made on behalf of the appellant regarding opinion of the Doctor examining the accused regarding factum of rape does not appear to be accurate as close reading of the deposition of this witness shows that it is only with regard to opinion about possibility. This witness has also answered to the effect that in case of rape on minor, there is possibility of injury on the accused. The argument on behalf of the appellant cannot be accepted merely on the answers given by these witnesses to the suggestion made regarding possibility during the cross-examination. With regard to the discrepancy in the Page 21 of 23 R/CR.A/402/2018 JUDGMENT first part of the deposition about the version given by the informant that the accused escaped when he show informant coming and that the presence of the accused at the place of offence when police arrived and that the police arrested him at that place, this aspect is clear from the fact that PW No.9-Keshaji Thakore, who is a panch witness of the scene of offence, does not reflect presence of the appellant when the panchnama was carried out immediately upon registration of the FIR. Thereafter, on 27.10.2013, as per the deposition of the Investigation Officer, the appellant was apprehended from the lake situated behind the company where the appellant was working and thereafter, panchnama was prepared and muddamal articles 10, 11, etc. were recovered from the scene of offence and the said panchnama Exh.19 wad proved by panch witness PW No.4-Exh.22. Though one of the panch witnesses of this very panchnama Exh.19 did not support the panchnama, still in view of the fact that panchnama of the muddamal article was proved through one of the panchas showing presence of the accused during this panchnama carried out on 28.10.2013, does not create any doubt in the procedure adopted during the investigation. Therefore, reliance on the version of the informant, who is a rustic villager regarding case papers being prepared by the appellant and the time at which such panchnamas are prepared, it cannot be said that at the time of FIR Page 22 of 23 R/CR.A/402/2018 JUDGMENT or at the time of first panchnama of the scene of offence, the appellant was very much present there and investigation was aware of the appellant being perpetrator of crime.
17. Having gone through the oral as well as documentary evidence on record of this case, this Court is in agreement with the view taken by the Sessions Court. Nothing has appeared on record to conclude that the approach of the Sessions Court is vitiated by any illegality or that the decision is perverse or that the Sessions Court has ignored any material evidence while recording the conviction. The findings arrived at by the Sessions Court and the reasonings recorded for conviction are justified in view of the evidence on record and hence, no case is made out to entertain this appeal. The appeal is dismissed.
Records and Proceedings to be transmitted to the concerned trial Court.
Sd/-
(M.R. SHAH, J.) Sd/-
(A.Y. KOGJE, J.) SHITOLE Page 23 of 23