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- (Per Dr.Neela Gokhale, J.) For the convenience of the exposition, this judgment is divided into the following parts: -

INDEX I. FACTUAL MATRIX .................................................................. 5 II. SUBMISSIONS OF THE PARTIES ........................................ 13 A. Submissions on behalf of the Appellant.................................... 13 B. Decisions relied upon by the learned counsel for the Appellant... 25 C. Submissions on behalf of the Respondent-State....................... 28 D. Decisions relied upon by the learned counsel for the Respondent....................................................................... 41 E. Submissions on behalf of Revision Applicant.......................... 42 Rajput PR (P.A.) 1-APEAL-678-2014 & 2 ors.doc III. POINTS FOR DETERMINATION....................................... 44 IV. ANALYSIS...................................................................... 45 A. Law laid down in cases involving evidence of circumstantial nature....45 B. The evidence on record indicting Sajjad................................... 49 C. On motive ........................................................................... 50 D. Sajjad's presence at the spot of the crime & Law on the Last Seen theory.................................................................................... 53 E. Seizure of Articles; chain of custody / absence of wax seal ............... 59 F. On CA Report regarding DNA ................................................. 62 G. On recovery of weapon.......................................................... 62 H. On recovery of other articles................................................... 63 I. Extrajudicial confession........................................................... 66 J. Contradictory statements given by Sajjad and unexplained injuries on his person.................................................................................... 71 K. On CCTV footage / fingerprint & footprints............................... 73 L. Postmortem Report................................................................ 74 M. On applicability of Section 464 Cr.PC...................................... 74 V. FINAL CONCLUSION .................................................... 75 Rajput PR (P.A.) 1-APEAL-678-2014 & 2 ors.doc

8.1) Mr. Yende canvassed an argument regarding the aggravating factor that Avik, the Complainant, who found Pallavi's body went in such a shock that he passed away on 14 th November 2013 from inflammatory brain disorder which was caused by trauma of the incident. In fact, when Avik was required to be recalled to depose regarding his supplementary statement, he had already died by then. Mr. Yende, representing Pallavi's father, made a passionate plea that the prosecution failed to challenge the lack of offense punishable Rajput PR (P.A.) 1-APEAL-678-2014 & 2 ors.doc under Section 376 read with Section 511 of the IPC that was excluded from the charges framed. In fact, the evidence of broken string of Pallavi's shorts and the condition of her bedroom strongly suggested an attempt to rape. Mr. Yende even urged this Court to convict Sajjad for the said offenses by invoking Section 464 of Cr.P.C. He submitted that in case the Court was not inclined for the same, Sajjad should be sentenced to enhanced capital punishment. He prayed for dismissal of Sajjad's Appeal as well.

M. On applicability of Section 464 Cr.PC (Argument of the Revision Applicant):

35) Mr. Yende argued that the string of the shorts worn by Pallavi was broken. The bedsheets in the bedroom were mangled and Rajput PR (P.A.) 1-APEAL-678-2014 & 2 ors.doc in disarray. There was blood all over, pillows were strewn on the bedroom floor. Coupled with the established motive of Sajjad, it is obvious that his act amounted to an attempt to rape. The fact that the deceased resisted the attempt to rape does not make the act less serious. He submitted that the Trial Court ought to have charged and convicted the accused under Section 376 read with Section 511 of the IPC. He prayed that Section 464 Cr.PC be invoked and Sajjad be convicted for the charge of attempt to rape despite the same not being framed by the Trial Court. We have perused the statutory provision of Section 464. It is a matter of record that neither the State nor the Revision Applicant had assailed the charges framed by the Trial Court or sought framing of additional charge. We are not inclined to either direct the Trial Court to frame charge under these Sections and record evidence from the point immediately after framing of the charge or direct a new trial upon framing of the additional charge.