Only accused No.2 Nikhil was convicted for the penal
provisions under the Atrocities Act i.e. Section 3(1)(w)(1) and 3(1) (w)(ii). A plain reading of said penal provisions show that accused must know that the woman belong to the Scheduled Caste or Scheduled Tribe. He is also convicted for the offence punishable under Section 3(2)(v) of the Atrocities Act.
These two penal provisions show that at the time of
commission of the offence, the accused must have knowledge that
the victim belongs to either Scheduled Caste or Scheduled Tribe and in spite of the knowledge, he commits the acts which are punishable.{Para 131}
132. As per the Caste Certificate (Exh.21) of the victim, she
belong to the caste which is a Scheduled Caste. Similarly, it is proved on record that accused no.2 is not belonging to Scheduled Caste. Accused no.1 was belonging to Scheduled Caste.
133. After a careful scrutiny of the evidence of the “victim” as
well as “father”, there is noting on record to show that accused no.2 was knowing and/or having knowledge that family of the victim belong to Scheduled Caste. Even learned Additional Public Prosecutor for the State could not point out to us that aspect. If that be so, we are of the view that the learned Special Judge ought not to have convicted accused no.2 Nikhil for the penal provisions under the Atrocities Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL CONFIRMATION CASE NO. 01 OF 2020
State of Maharashtra, Vs Sagar Vishwanath Borkar,
CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.
Dated: SEPTMEBER 07, 2021
JUDGMENT [Per V. M. Deshpande, J.]
1. A trial was conducted in the Court of learned Special
Judge, Buldhana as Special (POCSO) Case No. 27 of 2019 against
two accused persons namely- (1) Sagar Vishwanath Borkar ; and (2)
Nikhil Shivaji Golait. They were charged for the offence punishable
under Sections 363, 366-A, 376(2)(j), 376(2)(m), 376(DB), 506
read with Section 34 of the Indian Penal Code (IPC). They were also
charged for the offence punishable under Section 6 of the Protection
of Children from Sexual Offences Act, 2012 (hereinafter referred to
as “the POCSO Act” for the sake of brevity) and under Sections
3(1)(w)(i), 3(1)(w)(ii) and 3(2)(v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as “the Atrocities Act” for the sake of brevity.
After a full fledged trial, the learned Special Judge,
Buldhana delivered the judgment on 13.08.2020 holding that the
prosecution has proved the Charge and convicted both the accused
persons for the offence punishable under Sections 363, 376(2)(m),
506 read with Section 34 of the Indian Penal Code (IPC).
The learned Special Judge also convicted both the
accused for the offence punishable under Section 376(DB) read with
Section 34 of the IPC and under Section 6 of the POCSO Act.
Only accused no.2 – Nikhil Shivaji Golait was convicted
for the offence punishable under Section 3(1)(w)(i), 3(1)(w)(ii) and
3(2)(v) of the Atrocities Act.
Both the accused persons were acquitted for the offence
punishable under Section 366-A read with Section 34 of the IPC.
2. For their conviction under Section 363 read with Section
34 of IPC, both the accused persons were directed to suffer rigorous
imprisonment for a period of seven years and to pay a fine of
Rs.10,000/- by each of them with default clause of sufferance of
simple imprisonment for four months.
For their conviction under Section 376(2)(m) read with
Section 34 of IPC, they were directed to suffer rigorous imprisonment
for life, with a direction that it shall mean, imprisonment for the
remainder of their natural life and to pay a fine of Rs.25,000/- by
each of them with default clause of sufferance of simple
imprisonment for ten months.
For their conviction under Section 376(DB) read with
Section 34 of the IPC and under Section 6 of the POCSO Act,
sentence was ordered only for the offence under Section 376(DB)
read with Section 34 of IPC and the sentence given to them was
death sentence and they were ordered to be hanged by neck till they
are dead and also to pay a fine of Rs.50,000/- by each of them.
Both the accused persons were sentenced to suffer
rigorous imprisonment for a period of two years and to pay a fine of
Rs.2,000/- by each of them, they having committed an offence
punishable under Section 506 read with Section 34 of the IPC.
Accused no.2 Nikhil Golait was directed to suffer
rigorous imprisonment for a period of one year and to pay a fine of
Rs. 2,000/- and in default to suffer simple imprisonment for one
month for the offence punishable under section 3(1)(w)(i) of the
Atrocities Act.
Similarly, he was sentenced to suffer rigorous
imprisonment for a period of one year and to pay a fine of Rs.
2,000/- and in default to suffer simple imprisonment for one month
for the offence punishable under section 3(1)(w)(ii) of the Atrocities
Act.
Accused No.2 Nikhil Golait was also sentenced to suffer
imprisonment for life and to pay a fine of Rs. 10,000/- and in default
to suffer simple imprisonment for four month for the offence
punishable under section 3(2)(v) of the Atrocities Act.
3. Since, both the accused persons, who were tried by the
learned Special Judge, Buldhana, were sentenced to death, the
learned Special Judge made a reference to this Court for
confirmation of death sentence and the entire record and
proceedings were sent to this Court. The reference made by the
learned Special Judge is registered as Criminal Confirmation Case
No. 01 of 2020.
4. In the meanwhile, both the accused persons also
preferred two separate criminal appeals challenging their conviction
and punishment. The appeal filed by accused no.1 Sagar Vishwanath
Borkar is registered as Criminal Appeal No. 423 of 2020, whereas the
appeal preferred by accused no.2 – Nikhil Shivaji Golait is registered
as Criminal Appeal No. 370 of 2020.
5. On 01.10.2020, the appeal filed by accused no.1 Nikhil
was admitted. On the same day, notices were issued in Criminal
Confirmation Case to the respondents/accused and Shri R.M. Daga,
learned counsel who was present in the Court on the said day, for
arguing the appeal filed on behalf of accused no.2 Nikhil, waived
service in the Confirmation Case.
On 28.10.2020, Shri A.A. Dhawas, learned counsel
appeared in the Confirmation Case for and on behalf of respondent/
accused no.1 Sagar Vishwanath Borkar, who filed Criminal Appeal
No. 370/2020 and which was admitted on 28.10.2020.
6. Since, these proceedings arise out of the judgment and
order of conviction and sentence passed by the learned Special
Judge, Buldhana in Special (POCSO) Case No. 27 of 2019, these
three proceedings were heard simultaneously and they are being
decided by this common judgment.
7. In this judgment, the appellants in Criminal Appeal No.
370/2020 and Criminal Appeal No. 423/2020 are referred by their
original position in the trial Court i.e. appellant Sagar Borkar is
referred to as “accused no.1” ; and appellant Nikhil Golait is referred
to as “accused no.2”.
8. In order to screen the identity of the minor girl, on
whom rape was committed and her father, the first informant,they
will be referred to in this judgment as the “victim” and the “father”.
PROSECUTION CASE
9. The prosecution case, as it is unfurled during the course
of the trial, is as under :
A] “Father” (PW1) is the first informant. He lodged oral
report on 27.04.2019 at Police Station, Chikhali, Dist. Buldhana. His
oral report is at Exh.19, which culminated into registration of the
crime vide Crime No. 245/2019 for the offence punishable under
Sections 366-A, 376DB, 506 of the IPC and under Section 6 of the
POCSO Act against accused no.1 and one unknown person. The
printed first information report is at Exh.19A. As per the report, the
“father”, who was examined as PW1 in this prosecution case, used to
reside at Agriculture Produce Market Committee (APMC), Chikhli
along with his wife and three daughters, including “victim” (PW4),
aged about 9 years, the eldest daughter and two other daughters
aged about 5 years and 3 years. He is a Coolie and used to work as
such at APMC, Chikhli and at night he used to work as a Guard,
guarding the shop known as “Mahesh Traders” and used to stay with
his family in a tin shed there during night hours.
B] The first information report further states that on
26.04.2019 at about 10.00 O’clock in the night, the first informant
along with his wife and three daughters were sleeping after having
dinner. At about 11.00 O’clock in the night, accused no.1 along with
one boy, though he was knowing the said boy but was not knowing
his name, came in front of the tin-shed where they were sleeping, on
a Scooty. Report further narrates that at that time, the first
informant woke up due to noise of these persons and he noticed that
both were consuming liquor. The report discloses that accused no.1
used to come intermittently inside the tin-shed for consumption of
liquor. After consumption of liquor both left the place and the first
informant again slept.
C] The report further narrates that at about 1.00 O’clock in
the night, the first informant felt thirsty and therefore, he woke up
for drinking water. That time, he could not notice the presence of his
eldest daughter, the “victim”. Therefore, he woke up his wife and
started searching for their daughter. As per the report, they made
inquiry with Shivaji Onkar Salve (PW3), Watchman of APMC and
Prakash Sandu Sasane, a labourer in Commission Agent shop of
Shirale, as to whether they have seen their daughter. Upon that they
disclosed that they had seen accused no.1 with one unknown boy
with him taking a girl by making her to sit in between them on a
Scooty. Therefore, at about 2.00 O’clock in the night, the first
informant and his wife came on road in front of Mounibaba Sansthan
and when they were searching for their daughter, they noticed their
daughter, the “victim”, coming alone on foot from Siddharth Nagar
side in front of Mounibaba Sansthan.
D] The first information report further states that at that
time, the “victim” was frightened and her clothes (salwar pant) were
smeared with blood. The report further states that they made
inquiry with their daughter (victim) as to what happened ? and
where had been she ? Upon that, the victim disclosed to the first
informant that accused no.1 and one boy with him, whose name she
was not knowing, pressed her mouth while she was asleep, made her
to sit on their Scooty and took her to a dark spot in an open area
where Cricket is played, in front of burial ground, they removed their
nickers and also her nicker and they inserted their urinary organs
into her urinary place turn by turn, which resulted into oozing of
blood from her urinary place. Thereafter they threatened her not to
say anything to anyone and if she discloses anything, they will come
there and will kill her and her family members and then they made
her to sit on Scooty and left her at the corner of Mounibaba temple
and both of them went away by Scooty. After narrating this to the
first informant, as per the report, the victim was crying by saying “my
urinary place and abdomen is paining a lot”. The report further
states that the first informant and his wife realized what must have
happened to their daughter and therefore, they came to Police
Station along with their daughter.
E] PW14 Gulabrao Parashram Wagh, was discharging his
duty as Police Inspector at Police Station, Chikhali on 27.04.2019.
On that day at about 4.00 a.m., he received information from PSI
Kiran Khade that two persons have committed sexual assault on a
9 year old girl. On getting this information, he immediately rushed
to the Police Station. There he came to know that the victim and her
parents were taken by police to the Rural Hospital, Chikhali. PW14
Gulabrao Wagh informed about the said offence to his senior officer
on cell phone. The Deputy Superintendent of Police Shri Mahamuni
(PW15) directed PI Gulabrao Wagh (PW14) to conduct the
investigation.
F] After being entrusted with the investigation, PW14 PI
Wagh issued a letter (Exh.77) to the Medical Officer, Chikhali and
sought opinion of the Doctor whether the “victim” was in a position
to give her statement. On obtaining positive response from the
Medical Officer, statement of the “victim” was recorded as per the
questions put to the “victim” by lady Naik Police Constable Jyoti
Muley and lady Doctor Vijaya Kharpas (PW6).
G] The Investigating Officer PI Wagh also issued a letter
(Exh. 78) to the Chief Officer, Municipal Council, Chikhli for
arranging two panch witnesses for recording spot panchanama. The
Chief Officer provided two panch witnesses. They accompanied the
Investigating Officer to the spot of incident, which was narrated by
the “victim” and the “father”. The “victim” shown the place near
Mahesh Traders where they were residing. Accordingly,
panchanama was prepared. Thereafter, the “victim” took them to a
place where sexual assault was committed on her. Accordingly,
panchanama was prepared in presence of panchas. The spot
panchanama is at Exh.24. This spot panchanama is a common
panchanama about both the places. Thereafter, LPC Jyoti Muley
brought samples of the “victim” such as, blood sample, nail sample,
Urethral swab and vaginal swab in a sealed condition. Those were
seized under the seizure panchanama (Exh.26).
The “victim” was referred to Civil Hospital, Buldhana by
Dr. Vijaya for gynec opinion. At Buldhana, she was examined at Civil
Hospital by Dr. Manisha (PW11) and after giving treatment, she
referred the “victim” to Government Medical College at Aurangabad.
H] The Investigating Officer thereafter arrested accused
no.1 Sagar vide arrest panchanama (Exh.79).
I] LPC Jyoti Muley also brought clothes of the “victim” at
Police Station, which were seized under seizure panchanama
(Exh.25). The clothes were - (i) black and white top having blood
stains ; and (ii) purple colour with black dots salwar having blood
stains. These two clothes are at Articles A and B.
J] The Investigating Officer also seized the clothes of
accused no.1 Sagar i.e. (i) full sleeve white shirt with black design,
(ii) light blue colour jeans ; and (iii) one light blue colour underwear
having blood stains, under seizure panchanama (Exh.27). These
clothes are at Articles C, D and E.
K] The Investigating Officer thereafter seized a red colour
two wheeler Scooty bearing registration No. MH-28/AM-1298, which
was used in commission of the offence. It was seized from in front of
house of Vijay Gadekar at Pundlik Nagar, Chikhli under seizure
panchanama (Exh.29).
L] The Investigating Officer then issued a letter (Exh.51) to
the Medical Officer, Rural Hospital, Chikhli for examining and
obtaining samples of accused No.1. In pursuance to the same, the
Investigating Officer received blood sample, nail sample, pubic hair
and semen sample of accused no.1. Those were seized under seizure
panchanama (Exh.28). The Investigating Officer deposited these
muddemal articles with Head Moharir and obtained receipts. Those
are at Exhs.80, 81 and 82.
M] At this stage, Investigating Officer PI Wagh (PW14)
received an information that the “victim” became serious and so she
was shifted to Aurangabad.
N] On 28.04.2019, the Investigating Officer issued a letter
(Exh.83) to the Sub Divisional Police Officer (SDPO), Buldhana for
recording statement of the victim, who was taking treatment at
Aurangabad, by a lady officer. On the said letter itself, SDPO,
Buldhana directed PSI Manisha Hiwrale to record the statement of
the “victim” and for that she was sent to Aurangabad. For sending
PSI Manisha Hiwrale to Aurangabad, the Investigating Officer issued
direction by order dated 28.04.2019. The said is at Exh.84.
Accordingly, PSI Manisha Hiwarale went to Aurangabad and
recorded the statement of the “victim”. In the meanwhile, the
Investigating Officer PI Gulabrao Wagh also recorded the statements
of four witnesses.
O] During investigation, complicity of accused no.2 was
surfaced and therefore, the Investigating Officer arrested accused
no.2 Nikhil under arrest panchanama (Exh.85) on 28.4.2019. The
Investigating Officer seized the clothes of accused no.2 which were
on his person at the time of commission of the offence, under seizure
panchanama (Exh.30). The clothes were consisting (i) fade colour
full sleeves T-shirt, (ii) light blue colour jeans ; and (iii) light blue
colour underwear having blood stains. These clothes are at Articles
F, G and H. The Investigating Officer thereafter deposited those
muddemal articles with Head Moharir and obtained receipt (Exh.86).
P] On 29.04.2019, the Investigating Officer along with
panch witnesses went to the office of APMC, Chikhli to see CCTV
footage. That time, an expert person in computer by name Akash
Lambe was also present. Seven cameras were found to be fixed in
APMC market. Camera at Sr. No.2 was covering the area near
Mahesh Traders, whereas Camera No.10 was covering the area near
main gate. The Investigating Officer seized DVR (Digital Video
Recorder) and Adopter under panchanama (Exh.32). The DVR and
Adopter are at Articles K & L.
Q] By issuing letter (Exh.38) to the Medical Officer,
Government Hospital, Buldhana, the Investigating Officer asked for
conducting medical examination of accused no.2 Nikhil and to
forward his samples. Accordingly, accused no.2 was medically
examined. Blood sample, nail sample, pubic hair and semen sample
of accused no.2 were seized by him under seizure panchanama
(Exh.31). These muddemal articles were deposited with Head
Moharir, for which receipt (Exh.90) was issued. Similarly, DVR and
Adopter were also deposited with Head Moharir and for these two
articles, two receipts (Exhs.91 and 92) were issued.
R] Aadhar Card and Caste Certificate of accused no.2 were
also seized. The Caste Certificate of accused no.2 Nikhil is at Exh.87
and it shows that he belongs to caste ‘Kunbi Maratha’. According to
the Investigating Officer, it was found that the accused were knowing
that the victim belong to Scheduled Caste community. Therefore, the
Investigating Officer issued a letter (Exh.88) to the Court of learned
Special Judge for adding the offences under the Atrocities Act.
S] Having done to this extent, PW14 PI Gulabrao Wagh
handed over further investigation to SDPO Baburao Bhauso
Mahamuni (PW15). SDPO Mahamuni, who was posted as Dy.S.P. in
April-2019, was entrusted with the investigation of Crime No.
245/2019 as the offence was also for the offences punishable under
the Atrocities Act, in view of the letter (Exh.95) issued by the
Superintendent of Police, Buldhana directing him to conduct the
further investigation. Dy.S.P. Mahamuni (PW15) thereafter, on
01.05.2019, sent a letter (Exh.96) to the Social Welfare Officer. On
30.04.2019, PSI Manisha Hiwrale informed Dy.S.P. Mahamuni about
recording of the statement of the victim at Aurangabad.
T] On 02.05.2019, PW15 Dy.S.P. Mahamuni sent muddemal
to Chemical Analyser through Police Constable Suraj Rajput by
issuing Duty Pass (Exh.98) to him. Exh.99 is the requisition given to
the Chemical Analyser along with the muddemal articles.
U] On 03.05.2019, PW15 Dy.S.P. Mahamuni issued a letter
(Exh.54) to the Chief Officer, Municipal Council, Chikhli requesting
him to provide Birth Certificate of the victim. Similarly, he issued a
letter to the “father”, the first informant, for producing the Caste
Certificate. The said intimation cum request letter is at Exh.101.
The caste certificate of the “victim” was also obtained and her Caste
Certificate is at Exh.21. The said was seized by preparing
panchanama (Exh.20). As per the Caste Certificate (Exh.21), the
caste of the victim is Scheduled Caste. On 04.05.2019, PW15 Dy.S.P.
Mahamuni requested the Judicial Magistrate, First Class, Chikhli for
recording statement of the “victim” under Section 164 of the Code of
Criminal Procedure. The letter given to the learned Magistrate is at
Exh.102.
On 14.05.2019, he gave a letter (Exh.103) to the
“victim” for remaining present before the learned Magistrate for
recording of her statement.
V] On 04.05.2019, Dy.S.P. Mahamuni gave a letter to Ghati
Hospital, Aurangabad for providing all medical papers and treatment
of the victim at Aurangabad, which he received. He also gave letters
to the schools of both the accused for obtaining their School Leaving
Certificates. Exh.105 is the letter cum notice under Section 91 of the
Code of Criminal Procedure to the Headmaster of Municipal Council
Secondary School, Chikhli for providing School Leaving Certificate of
accused no.1 showing his caste and date of birth. Similarly, letter
cum notice Exh.106 was addressed to the Headmaster of Shivaji
Vidyalaya, Chikhli for providing School Leaving Certificate of accused
no.2 showing his caste and date of birth. Accordingly, he received
the School Leaving Certificates of accused no.1 and accused no.2,
which are at Exhs.107 and 108, respectively.
W] On 09.05.2019, the Investigating Officer gave a letter
(Exh.109) to the Court of learned Special Judge seeking permission
to conduct Test Identification Parade of accused no.2 through the
victim. After receipt of permission, the Investigating Officer
requested the Tahsildar, Chikhli by issuing letter (Exh.66) for
conducting Test Identification Parade. Accordingly, Test
Identification Parade was held and he received its report (Exh.68).
The memorandum of the Test Identification Parade is at Exh.69 and
the panchanama of said parade is at Exh.70.
X] On 18.05.2019, DyS.P. Mahamuni gave a letter
(Exh.110) to the Chief Officer, Chikhli requesting him to depute two
employees as panchas for obtaining hash value of CCTV cameras.
Accordingly, on 22.5.2019, hash value was calculated by Sharad Giri,
Naik Police Constable on the laptop in “X-Way Winhex 18.5
software”. With its hash value, it was seized as per seizure
panchanama (Exh.111).
Exh.112 is the Certificate under Section 65-B of the
Indian Evidence Act. It was prepared in presence of the Investigating
Officer by NPC Sharad Giri. A pen drive was purchased from Rudra
Computers under receipt (Exh.113). The DVR, adopter and pen
drive were seized by preparing panchanama (Exh.32). Those were
deposited with the Head Moharir under muddemal receipts (Exhs.91
and 92). The Pen Drive is at Article M.
Y] On 24.05.2019, a letter (Exh.44) was given to the
Medical Officer, Chikhli for obtaining medical papers of the victim.
Accordingly, all medical papers of the victim were received.
Z] On 08.06.2021, the Investigating Officer gave a letter
(Exh.114) to the Regional Transport Office, Buldhana for obtaining
documents of Scooty vehicle used for commission of the offence. On
10.06.2019, the Investigating Officer received the documents along
with letter (Exh.115) of the Regional Transport Office. The vehicle
particulars issued by Regional Transport Office, Buldhana shows that
the vehicle is in the name of accused no.2 Nikhil Golait. The said
vehicle particulars are at Exh.116.
ZA] The Investigating Officer also requested Tahsildar,
Chikhli for drawing map of the spot under request letter Exh.117.
Accordingly, he received the map from Tahsildar office, Chikhli,
which is at Exh.118.
ZB] On 14.5.2019, the Investigating Officer gave a letter
(Exh.119) to Police Station, Chikhli for enquiry as to whether any
other offences are pending against the accused persons. He received
the details of the offences pending against the accused persons along
with the copies of the first information reports from Police Station,
Chikhli under covering letter (Exh.120). Register Entry extract is at
Exh.121 and the copies of the first information reports are at
Exh.122 and 123. The Investigating Officer also issued a letter
(Exh.124) to the Superintendent of Police, Buldhana for obtaining
Subscriber Details Record (SDR) and Call Details Record (CDR) and
tower location of the accused. Accordingly, he received the same.
Those are collectively at Exh.125 on the record. As per the
Investigating Officer, from CDR and SDR, it was revealed that
location of the accused at the time of the incident was the spot of the
incident.
ZC] After completion of the investigation, Dy.S.P. Mahamuni
filed the charge-sheet before the Court and after receipt of the
Chemical Analyser’s reports, the same were produced in the Court.
ZD] The learned Special Judge thereafter framed the Charge
against both the accused persons for the offences which are stated in
the opening paragraph of this judgment under Charge (Exh.3). Both
the accused abjured the guilt and claimed for trial.
ZE] In order to bring home the guilt of the accused, the
prosecution has examined in all 15 witnesses and also relied upon
various documents which were duly proved during the course of
trial.
ZF] The learned Special Judge before whom the trial was
conducted, also recorded the statements of both the accused under
Section 313 of the Code of Criminal Procedure. They did not
examine any defence witness. From their statements under Section
313 of the Code of Criminal Procedure and from the line of crossexamination,
their defence is that they are falsely implicated in the
crime.
ZG] After hearing the learned Public Prosecutor, the learned
defence counsels and after appreciating the entire evidence, the
learned Judge found that the prosecution was successful in proving
its case against the accused persons as narrated in the opening
paragraphs of this judgment and awarded sentence. Hence, these
proceedings.
10. We have heard learned counsel for accused no.2 Shri
R.M. Daga extensively. Learned counsel for accused no.1 Shri A.A.
Dhawas adopted the arguments of Shri Daga, Advocate. We have
also heard in extenso learned Additional Public Prosecutor for the
State Shri S.S. Doifode.
With the able assistance of the respective counsel, we
have gone through, in detail, the notes of evidence and the record
and proceedings.
SUBMISSIONS -
11. According to the learned counsel for the accused, they
are falsely implicated in the crime in question. Learned counsel Shri
Daga’s submissions can be cataloged as under :-
a] There is a delay of three hours in lodging the first
information report and that is not explained at all.
b] Name of accused no.2 was not figuring in the first
information report still subsequently he was arrayed as accused in
the crime.
c] Though, from the evidence and the report, the “father”
was knowing accused no.2, may be by face, for the reasons best
known to the “father”, he did not implicate him in the first
information report.
d] The identification of accused no.2 in evidence by PW3
Shivaji is unsafe to accept inasmuch as in his evidence he did state
that his name was disclosed to him by other Security Guard Shri
Sasane. Thus, PW3 Shivaji was not knowing accused no.2. In this
context, non-examination of Shri Sasane assumes importance.
e] Though, test identification parade of accused no.2 was
made through “victim” (PW4), for the reasons best known to the
Investigating Officer, the test identification parade was not conducted
in respect of accused no.2 through PW3 Shivaji.
f] Even test identification parade of accused no.2 was also
not done at investigation stage by the Investigating Officer through
father.
g] The panchas regarding the identification parade were
not examined and the identification parade was conducted after a
period of 50 days.
h] The Court should not accept identification of accused
no.2 even by the “victim” inasmuch as there is nothing in the spot
panchanama (Exh.24) that there was source of light.
i] There is omission in respect of fat person in the
statement of the victim recorded under Section 164 of the Code of
Criminal Procedure and the learned Magistrate, who recorded her
statement was also not examined.
j] Vijay Gadekar is not examined, which materially affects
the prosecution case since Scooty used in commission of the offence
was seized from in front of his house.
k] The injuries caused to the private part of the victim were
possible due to fall on a pointed thing, as at least one of the Doctors
does not rule out that possibility.
l] No injury on the genitals of any of the accused, shows
their innocence.
m] As per the prosecution case, at once only there was
sexual intercourse and as per the medical evidence, the injuries
noticed on the genitals of the victim occurred due to sexual
intercourse multiple times.
n] Seized muddemal was received at Chemical Analyser’s
office on 03.05.2019 and there is no evidence that the muddemal
was in proper condition from 29.04.2019 i.e. last date of the seizure.
o] Non-examination of Head Moharir to point out that the
muddemal was in proper condition, is fatal to the prosecution.
p] It would be unsafe to accept DNA report because there is
no evidence about safe custody.
q] In any case, there is a serious doubt about the
truthfulness of the entire prosecution case.
r] In any case, the punishment imposed that the accused
should be hanged by neck till death is harsh inasmuch as this is not
the case which could be placed in the category of rarest of rare.
s] No opportunity was given to any of the accused to
adduce evidence to explain as to why death sentence should not be
imposed upon them.
12. Per contra, learned Additional Public Prosecutor Shri
S.S. Doifode vehemently supported the reasoning given by the
learned Special Judge. He painstakingly pointed out as to how
evidence of the “victim” is reliable and trustworthy. He pointed out
the material from record as to how the “victim” could know accused
no.1. He pointed out that evidence of the “victim” and “father” are
free from any omission and contradiction and their evidence inspires
confidence.
The learned Additional Public Prosecutor submitted that
multiple injuries found on the private part of the victim shows the
degree of torture on a minor girl, aged about 9 years, by committing
rape. He submitted that once it is found that evidence of the “victim”
is trustworthy and it can be safely accepted, the perpetrators of the
crime cannot escape from legal punishment. He also submitted that
the learned Special Judge was right in imposing punishment of death
since both the accused are beasts, who in order to fulfill their sexual
lust have committed sexual atrocities on a minor girl. He, therefore,
submitted that the reference be answered in affirmative and the
appeals filed by both the accused be dismissed.
CRITICAL ANALYSIS OF THE PROSECUTION CASE.
A] First Information Report.
13. It is a trite law that the first information report does not
constitute substantive evidence. It can be used as a previous
statement for the purpose of corroborating either its maker under
Section 157 of the Indian Evidence Act, or for contradicting him
under Section 145 of the said Act. The first information report’s
importance is that it conveys earliest information regarding the
occurrence so that it cannot be doubted. These are the principles
enunciated by the Hon’ble Apex Court.
14. In the present case, the criminal law was set into motion
by “father” (PW1). He lodged his oral report dated 27.04.2019 with
Police Station, Chikhali, which is at Exh.19. The printed first
information report is at Exh.19-A.
In paragraph 9 of this judgment, the contents of the first
information report are elaborately discussed. Therefore, in order to
avoid repetition and to avoid bulkiness, we are not again discussing
the factual matrix as stated in the first information report at this
stage.
15. The first submission of the learned counsel for the
accused persons, as cataloged above, is that there is a delay of three
hours in registration of the crime, which is not explained and
according to the learned counsel, it is fatal to the prosecution.
16. Let us examine this submission.
Sub clause (b) of Column 3 of the printed first
information report (Exh.19A) shows that the information of the
occurrence was received at Police Station early in the morning at
4.00 O’clock on 27.04.2019, whereas the date and time of the first
information report in the said printed first information report shows
as 27.04.2019 at 8.37 a.m.
The unchallenged version of “father” (PW1) shows that
he and his wife were searching for their daughter, the “victim”, since
2.00 a.m. on 27.01.2019 when they noticed her absence on the bed
and during search they noticed their daughter coming in frightened
condition having blood on her clothes in front of Mounibaba
Sansthan. As per the printed first information report (Exh.19A), the
distance between police station and the place of occurrence is 2
kilometers. The learned counsel for the accused pointed out from
evidence of PW14 PI Gulabrao Wagh that the distance between
police station and the graveyard is about one kilometer and the
distance between police station and APMC market is also about one
kilometer. He, therefore, submitted that though the printed first
information report shows that the information was received at the
police station at 4.00 O’clock in the morning, for the reasons best
known to the prosecution, the crime was registered at 8.37 a.m.
17. The printed first information report shows that the oral
report lodged by “father” (PW1) was reduced into writing by PSI K.K.
Khade. Though, PSI Khade was not examined by the prosecution,
the contents of the first information report were duly proved by the
maker i.e. “father” (PW1).
PW14 PI Gulabrao Wagh would state in his evidence that
on 27.04.2019 at 4.00 a.m. he received information from PSI Khade
that two persons have committed sexual assault on a 9 year old girl.
Therefore, he immediately rushed to police station where he came to
know that the “victim” and her parents were taken by police to the
Rural Hospital, Chikhli. In our view, this postulates that at 4.00
O’clock in the morning when the “victim” along with her parents had
been to the police station, looking to the physical appearance of the
victim, PSI Khade rightly took them to Rural Hospital, Chikhali and
in the meanwhile, he reported the occurrence to his superior PW14
Gulabrao Wagh. Of course, it was well open for PSI Khade to reduce
into writing the entire narration of the “father” and register the first
information report at 4.00 a.m itself, however, in such cases it was a
natural reaction of a sensitive person, first to take immediate step to
provide medical help to the victim, aged about 9 years by taking her
along with her parents to the hospital. Even the evidence of PW6 Dr.
Vijaya Kharpas, Medical Officer of Rural Hospital, Chikhli would
show that the “victim” was brought to her at 4.00 O’clock in the
morning on 27.04.2019 and she was accompanied by her parents. In
her cross-examination, it was brought on record that she started
examining the victim at 4.15 a.m. The contemporaneous document,
the forensic medical examination report (Exh.43A) of the victim also
shows that Dr. Kharpas examined the “victim” at 4.15 a.m. From
this, it is very clear that PSI Khade had shown sense of urgency and
first took the girl to the hospital so that she can get the required
medical assistance. It must be his thought process that the formality
of registration of the crime can be deferred for a little while, but the
first step is to provide immediate medical help. We approve this
particular approach on the part of PSI Khade. Some time must have
consumed by Dr. Kharpas after she started medical examination of
the “victim”. Exh.42 is the history given by “father” to Dr. Kharpas.
It shows that the writing was started at 4.30 a.m. It appears that
after medical examination of the victim, she and her parents came to
police station and that time detail statement of “father” was reduced
into writing by PSI Khade at 8.37 a.m. and Crime No. 245/2019
came to be registered against accused no.1 and one unknown person
for the offence punishable under Sections 366-A, 376(DB), 506 of
the IPC and under Section 6 of the POCSO Act.
18. One limb of the submissions of learned counsel Shri
Daga on this aspect is that the parents found the “victim” at 2.00
a.m. The distance, even as per Exh.19A, between the police station
and the spot of occurrence, is two kilometers and still they reached
to police station at 4.00 a.m. for which there is no explanation and
therefore, the possibility of false implication of the accused in the
crime, is not completely ruled out.
19. We are afraid that this submission has any merit. When
the parents found the “victim” coming from Mounibaba sansthan on
her foot, she was alone. Not only that, they found their daughter not
only in a frightened condition, but the clothes on her person were
smeared with blood. Visualizing the state of mind of the parents at
that time, we are sure that they must have completely shattered in
their mind and were absolutely dumbstruck and their thought
process must have completely stopped and the only thought that
must be creeping in their mind was to provide immediate help to
their unfortunate daughter. From the first information report, it
appears that “father” made an enquiry with the “victim” that time
and she disclosed the horrifying act committed on her by the accused
persons. Undisputedly, “father” hails from lower strata of the society.
His unchallenged version shows that he used to do labour work at
APMC and in order to supplement his earning, he used to do work of
watchman in the night at Mahesh Traders and also used to sleep
along with his family members including the victim in a tin-shed in
front of Mahesh Traders. It clearly shows that he was not having any
vehicle with him. Some time must have consumed to cover the
distance of two kilometers. Therefore, the evidence of unfortunate
father that he reached to police station at 4.00 O’clock cannot be
doubted. In our view, the aforesaid circumstances themselves have
explained the fact that though the parents found the victim at about
2.00 am, why they reached to the Police Station at 4.00 a.m. and the
crime was registered at 8.37 a.m. In our view the justice will be the
victim if the prosecution case is thrown merely because the crime
was registered at 8.37 a.m. though the information was received at
4.00 O’clock in the morning. In view of above discussion, we have
no hesitation in our mind to reject the submission made by the
learned counsel for the accused that the prosecution case must fall
because of unexplained delay of three hours in registration of crime.
B] AGE AND CASTE OF THE VICTIM :-
20. AGE :- As per the oral report (Exh.19), “father” is having
three daughters. The eldest is the victim, whose age is shown as 9
years and his other daughters at the relevant time were aged about 6
years and 5 years. The date of birth of the “victim” is not disclosed in
the first information report.
21. During examination-in-chief of the “victim”, she has
specifically stated her date of birth as 27.01.2009 and in her crossexamination
it was brought on record that at the relevant time she
was studying in 5th standard. The “father” also gave date of birth of
the victim as 27.01.2009 and stated that her birth took place in a
Government Hospital. This particular evidence was not challenged
by any of the accused when “father” was cross-examined by two
different learned counsel.
The date of birth is duly proved by the prosecution
during the course of trial by examining Raju Wamanrao Deshmukh
(PW9). This prosecution witness was discharging his duties as
Senior Clerk at Nagar Parishad, Chikhli and he was in-charge of
maintaining the Birth and Death Records. As per the evidence of
Dy.S.P. Mahamuni (PW15), when he took investigation to himself, he
issued a letter (Exh.54) to Municipal Council, Chikhli for obtaining
birth certificate of the “victim”. In pursuance to the said, he received
birth certificate from the Municipal Council mentioning the date of
birth as 27.01.2009. When PW9 Raju Deshmukh was in the Court,
he was having original record with him pertaining to the date of
birth of the “victim”. He proved the birth certificate (Exh.55).
22. PW6 Dr. Kharpas, who examined the victim firstly on
27.04.2019 early in the morning at 4.15 am, found that there were
no hairs over pubic area of the victim and therefore, she could not
obtain the samples. The learned counsel for the accused persons
have fairly admitted that the victim was “child” within the meaning
of section 2(d) of the POCSO Act and even during trial the claim of
the “victim” that she was born on 27.01.2009 was never challenged.
The date of the incident is 27.04.2019. Therefore, though in the
report the age of the victim was stated as 9 years, she was aged
about 10 years and 3 months, but of course, the victim was “child” at
the relevant time.
23. CASTE – In the report (Exh.19) itself and also in the
evidence, “father” (PW1) gave name of the caste to which he belongs and the said is ‘Scheduled Caste”.
PW15 Dy.S.P. Mahamuni gave a letter to “father” for
producing his caste certificate. He received the same from “father”,
which was produced on record. The caste certificate which was
produced on record along with the charge-sheet is duly proved by
the prosecution by examining Ravi Dinkar Tale (PW7). As per the
evidence of PW7 Ravi Tale, S.D.O., by issuing order to him, had
authorized him to adduce evidence in the trial. The said order is at
Exh.49. It is clear from the evidence of this witness that at the time
of adducing his evidence, he had brought original records with him.
He had also brought certified copy of the caste certificate (Exh.21),
which was produced on record by “father”. The certified copy of the
caste certificate brought in the Court by PW7 Ravi Tale is at Exh.21A.
His evidence shows that the contents of Exh.21 were as per the
record. Though, in his cross-examination, the defence tried to
challenge his evidence by giving him suggestion that he has not
personally verified whether the victim belong to a particular caste or
not, he denied the same.
Once it was found that the contents of Exh.21, the caste
certificate, produced on record by “father” were in consonance with
the original record and when this official (PW7) produced certified
copy of Exh.21 and which was taken on record by the learned Judge
as Exh.21A, we have no doubt in our mind to record a finding that
the family of the victim and the “victim” belong to a caste, which is a
‘Scheduled Caste’.
C] MEDICAL EVIDENCE
24. From the first information report, it is clear that during
search of the victim by her parents, they noticed the “victim” was
coming towards her house on foot. When they noticed her, they
found that she was in frightened condition and her clothes were
smeared with blood. From the first information report, it is clear that
at 4.00 O’clock in the morning, “father” along with the “victim”
reached to police station.
25. From the evidence of PW14 PI Gulabrao Wagh, it is clear
that at 4.00 O’clock in the morning, he received information from PSI Khade about commission of sexual assault on a minor girl. He,
therefore, immediately rushed to the police station where he was
informed that the “victim” is already taken to the hospital.
26. Dr. Vijaya Kharpas (PW6) was posted at Rural Hospital,
Chikhli on 27.4.2019. At 4.00 O’clock in the morning Lady Police
Constable brought the “victim” to her for examination in relation to
sexual assault. Exh.41 is the communication given to the Medical
Officer, Rural Hospital, Chikhli by PSI Khade requesting the Medical
Officer to conduct medical examination of the “victim”. Accordingly,
Dr. Kharpas started examination of the “victim”. PW6 Dr. Kharpas
also obtained consent from the parents of the “victim” she being
minor for her examination. Obviously, the “victim” being minor, she
obtained history from the parents about the incident. “Father”
narrated the history, which was noted down on paper by Dr. Kharpas
and she also obtained signature of the “father”. The said document
is at Exh.42.
27. It appears that after doing these preliminary things, Dr.
Kharpas started medical examination of the “victim”. Dr. Kharpas, on
victim’s genital examination, found following injuries -
1] Bleeding was present over inner side of thigh,
inner side labia majora, labia minora, bleeding
per vagina present.
2] Tear is present over posterior part of vagina
extending towards anus just anterior to anus
opening involving skin deep.
3] Some secretions thin, whitish in colour mixed
with blood is seen just below this tear.
4] Pubic hairs are absent.
5] No other hairs seen over genital parts.
6] On separating labia majora with two finger
hymen torn seen.
7] No injury over other body part except some
redness over lower back.
28. PW6 Dr. Kharpas also obtained nail sample, blood
sample both plain and EDTA of the victim, however since there were
no hairs over pubic area, hair sample could not be taken. She also
took samples of vaginal swab, urethral swab. She found that the
clothes of the victim were stained with blood. Dr. Kharpas thereafter
sealed the samples and handed over the same to a Lady Police
Constable, who was on duty.
29. Evidence of PW6 Dr. Kharpas would further show that
sexual assault was on a minor i.e. ‘child’ and it was a matter under
POCSO, she gave certificate in the format (Exh.43A). She also issued
certificate after giving treatment to the victim. Certificate (Exh.43A)
contains victim’s medical examination, injuries noticed by the Doctor,
samples taken by the Doctor and the treatment advise.
30. According to the opinion of Dr. Kharpas (PW6), the
injuries found on the person of the “victim” were approximately 4-6
hours old and she examined the victim after 2-3 hours of the
incident.
31. The record would show that Dr. Kharpas (PW6) by
giving referral card (Exh.46) referred the “victim” to Buldhana Civil
Hospital for gynec opinion.
32. The prosecution has examined Dr. Manisha Chavan
(PW11), who was posted as Gynecologist at Civil Hospital, Buldhana
on 27.04.2019. Her evidence would show that the “victim” was
brought to the hospital by a Lady Police Constable. The Casualty
Medical Officer recorded history of the patient, which was of sexual
assault. Thereafter, Dr. Manisha Chavan was called. She went in
casualty and examined the victim. She found that there was active
bleeding. Therefore, the victim was taken to Operation Theater (OT)
As per the evidence of PW11 Dr. Manisha, she explored the “victim”
under spinal anesthesia. She found laceration injury over right and
left lateral vaginal wall. On further examination, she found posterior
pouch of douglas was open, bowels were also seen from vagina.
Evidence of Dr. Manisha would reveal that as condition of the
“victim” was very serious and could not alone handle her, she called
Dr. Bhusari as well as two Gynecologists. These Doctors were called
for proper management of the “victim”.
In order to stop active bleeding, stitches were applied.
Dr. Manisha further states from the witness box that she put mop for
prevention of infection to the bowel. It would be useful to mention
here that before the patient was taken to OT, Dr. Manisha did not
forget to obtain consent from the parents, the “victim” being minor.
Dr. Manisha proved the medical case papers, which were in her own
handwriting and which bear her signature. When she was in witness
box, her attention was drawn to the medical papers which were
running form page 46 to 57. She proved the same. Those were
collectively marked as Exh.59.
33. It was decided by Dr. Manisha to refer the “victim” to the
Government Medical Collage and Hospital, Aurangabad and for that
she gave referral form under her signature. The said referral form is
at Exh.60. Perusal of the said proved document would show that a
request was made to the authorities of the Government Medical
College, Aurangabad for admission of the victim. The summary of
diagnosis as shown in Exh.60 , is as under :
“PV – 30 perennial tear, anal sphincter injury, all
vaginal wall laceration, open, pouch of douglas for
exploratory laparotomy and further treatment.”
34. After the victim was referred to Aurangabad, she was
taken there. Insofar as victim’s examination at Aurangabad is
concerned, the victim was examined by two Doctors, they were Dr.
Vijay Yashwant Kalyankar (PW10) and Dr. Sanjay Bhaskarrao Pagare
(PW12). On oath, PW10 Dr. Kalyankar deposed that on 27.04.2019
he was Associate Professor at Government Medical College,
Aurangabad and he was discharging emergency duty of a Unit, which
he was leading. At 9.45 p.m., the “victim” was brought to him. She
was in emergency. Dr. Kalyankar would state that she was referred
from Buldhana Civil Hospital. As per evidence of Dr. Kalyankar. The
notes of Buldhana Civil Hospital would show that the “victim” was
examined under spinal anesthesia. He found that pouch of douglas
torn for 3 to 4 cms and bowel loops could be seen through it.
35. Evidence of PW10 Dr. Kalyankar further shows that the
“victim” was examined and thereafter she was taken to Operation
Theater for exploration and vaginal tear repair. Under his directions,
the “victim” was taken for surgery. Operating surgeons were Dr.
Sanjay Pagare (PW12), Dr. Pawan Bendale and Dr. Aulia Nasreen.
Evidence of PW10 Dr. Kalyankar would state that on
operation table, the findings were as under :
1] There was III rd degree perennial tear with
open pouch of douglas. The pouch of douglas
was sutured after taking Surgeon’s opinion.
2] IIIrd degree perennial tear was repaired.
There was no bleeding now. Post operatively the
patient recovered health. She was observed for
five days thereafter in the ward.”
36. Dr. Sanjay Pagare (PW12) had operated the victim. His
evidence would show that he found that the victim was having
injuries on vaginal part. He noticed that there was third degree
perennial tear. Therefore, pouch of douglas was opened. He
operated on those injuries and repaired it. According to operating
Doctor, PW12 Pagare, these injuries were serious and grievous.
According to the Doctor, those injuries were because of forceful
sexual intercourse. He found the injuries fresh and made within 24
hours.
37. The victim was admitted at Aurangabad hospital on
27.4.2019 at about 9.30 p.m. and she was discharged from there on
02.05.2019 at 4.30 p.m. The operation notes were signed by Dr.
Aulia Nasreen. Her signature was identified by PW10 Dr. Kanyankar,
Head of the Department and Associate Professor. So also the
discharge card was signed by Dr. Priyanka Kesarwani, whose
signature was also identified by PW10 Dr. Kanyankar. Total 15 pages
running from page nos.65 to 80 were collectively marked as Exh.57.
38. The noting at Buldhana hospital on 27.04.2019 at 9.30
a.m, which is a part of Exh.59, shows that Dr. Manisha Chavan
(PW11) gave an understanding to the “father” that health of the
victim was critical. The same was acknowledged by the “father”.
Thus, it is clear that the Doctors at Buldhana took right step by
referring the victim to Aurangabad Government Medical College for
better management of the victim, who was in critical condition.
From the evidence of PW10 Dr. Kanyankar and PW12 Dr. Pagare and
from contemporaneous document (Exh.57), it is clear that in the
wisdom of the team of Doctors, operation was required to be done
and therefore, the victim was taken in the Operation Theater and the
operation was done from 12.00 to 12.30 am on 28.04.2019, as it
could be seen from the noting made under head “Operative Details”
of discharge card.
39. During trial, the line of cross-examination of all the
Doctors, who examined the “victim” at three different places, was
that the injuries received by the “victim” on her vaginal part was due
to she falling on a pointed thing.
40. Even before this Court, the learned counsel for the
accused tried to make capital out of the statement made by Dr.
Kharpas (PW6) in her cross-examination that such type of injury is
possible if somebody falls on pointed thing.
Though, same type of suggestion was given to Dr.
Manisha (PW11), she stoutly denied the same. Similar suggestions
were given to Dr. Pagare (PW12). During cross-examination
conducted on behalf of accused no.2 Nikhil, following was brought
on record :
“It is not true to say that such type of injuries are not
possible due to sexual assault. Witness volunteers
that except severe sexual assault, those injuries are
not possible.”
PW10 Dr. Kalyankar, Associate Professor also denied stoutly
the suggestions put to him regarding cause of injuries, which
according to the defence was due to falling on hard and blunt object.
Doctors also denied stoutly the suggestion given that the injuries
found could be due to repairing pouch of douglas. From the crossexamination
of Dr. Kalyankar (PW10), following was brougnt on
record :
“It is not true to say that this injury was done while
repairing pouch of douglas. Witness volunteers that
this type of injury only occurs due to sexual
intercourse. It is not true to say that such type of
injury is not possible due to sexual intercourse. Injury
was so serious that bowel loops could be seen through
the vagina and therefore, patient was referred to us.”
41. While appreciating the prosecution case, it is the duty of
the Court to appreciate the entire evidence as a whole. It is not
expected from the Court to give undue importance to the stray
statements found in the testimonies of the prosecution witnesses.
Evidence of a particular witness including Doctors cannot be read in
bits and pieces. The entire evidence of the witnesses has to be read
as whole and much importance cannot be attributed to the stray
admission made in such evidence.
42. In this case, the suggestion given to the Doctors by the
learned defence counsel that the injuries as noticed on genital part of
the victim were caused due to fall on a pointed object, were given by
the learned defence counsel out of cough. No scientific data or
material in that behalf in the nature of any research paper, books by
well known authors were pressed into service at the time of crossexamination
of those Doctors. Another reason for discarding the said
defence is that the proved events show that the “victim” received
injuries on her person in between 1.00 am to 2.00 am at a place
which is more than 1 kilometer away from the tin shed where she
was sleeping along with her parents. It is impossible even to
visualize that the “victim” at such time will go away to that place
alone even for answering natures call and will receive injuries. In
such a situation, we reject the submission made in that behalf by the
learned counsel for the accused and accept the entire medical
evidence oral as well as documentory, which were contemporary of
each stage when the victim was medically examined.
43. We, therefore, agree that the prosecution case that was
proved and disclosed before the Court through the Doctors, who
examined the “victim”, that the injuries found on the genital part of
the “victim” were caused to her due to forcible sexual intercourse
and due to the said, she received bleeding injuries on her private part
and the injuries were critical requiring the “victim” to transfer firstly
to Buldhana and from there to Aurangabad.
44. Here, we would like to appreciate the Doctors at Chikhli,
Buldhana and Aurangabad, who shown sense of urgency to provide
immediate medical help. At Buldhana, Doctor sutured to control
active bleeding and at Aurangabad, ultimately the “victim” was
required to undergo an operation. In our view, due to the timely
intervention by the Doctors, precious life of the “victim” was saved.
45. Another submission of the learned counsel for the
accused persons was that except injuries on genital part, there were
no injuries on other part of the body of the “victim”.
On this aspect, Exh.43A would show that apart from
injuries on genital parts, the victim was having redness over lower
back. This aspect goes in conformity with the prosecution case that
on a cement ota, sexual assault was made on the victim.
46. Learned counsel for the accused also submitted by
reading out notes of evidence of PW8 Dr. Nutan Kale and PW5 Dr.
Sachin Kadam and their medical certificates that no nail scratches
were found on person of any of the accused. He submitted that it
would be impossible that forcible sexual assault was made on a
woman and there were no marks of resistance on the person of the
accused.
47. Firstly, accused no.1 was arrested. He was referred for
his medical examination at Rural Hospital, Chikhli on 27.4.2019.
After examining him, Dr. Kale (PW8) issued a certificate (Exh.52).
Similarly, after arrest of accused no.2, he was brought for his medical
examination at Civil Hospital, Buldhana on 29.04.2019 and he was
examined by Dr. Sachin Kadam (PW5). His medical certificate is at
Exh.39.
48. True it is that on a perusal of respective medical
certificates of the accused persons, no nail marks or scratches were
found on their body, however, merely because of that, we are not
ready to accept the submission made on behalf of the accused
persons that it is a pointer for their innocence.
49. We cannot forget that the “victim” in this case is hardly
10 years of age. She was subjected to sexual assault by two fully
grown male persons. The victim, therefore, was easily overpowered
by these two accused persons, who were like beasts at the relevant
time. It would be too far expectation from this little girl to assault on
these two beasts when they were in the process of ghastly sexual
assault on her. We, therefore, have no hesitation in our mind to
reject this contention on behalf of the accused persons.
50. To complete on this aspect, we would like to consider
one of the submissions of the learned Additional Public Prosecutor
that in fact both the accused persons have admitted before the
Doctors that they have committed sexual assault on the victim and
therefore, according to the learned Additional Public Prosecutor, it is
an extra judicial confession. For that, he invited our attention to the
history noted down by Dr. Nutan Kale (PW8) given by accused no.1
Sagar. He invited our attention to document Exh.51A under head
‘Medical and Surgical History’ and submitted that accused no.1
himself has admitted that he has performed forcible sexual
intercourse. Similarly, for accused no.2 Nikhil, he invited our
attention to such noting in Exh.39.
51. In our view, the submission as advanced by the learned
Additional Public Prosecutor must fall on the ground.
52. After the arrest, both the accused persons were brought
before two different Doctors for their medical examination. They
were brought under custody before the Medical Officers. Therefore,
we are of the view that even if such history was narrated by them, it
was not voluntary, rather it was made when they were in custody.
Therefore, in our view, the portion of both the documents to that
extent is inadmissible in evidence.
D] IDENTIFICATION :-
53. During the course of the arguments, Mr. Daga, learned
counsel for accused no.2 Nikhil straneously urged before the Court
about identification of the said accused. In fact substantial part of
his argument was covering this issue only. It was his submission that
there was no proper identification of accused no.2 to show that he
had participation in the offence.
54. Mr. Daga opened his arguments with a submission that
name of accused no.2 did not figure in the first information report.
He also submitted that his name cropped up only when, according to
the prosecution, accused no.1 Sagar during his interrogation
disclosed his name and thereafter he was arrayed as accused in the
crime in question. He also submitted that though “father” was
knowing him still he did not disclose his name in the first
information report. Another limb of his submissions was that it
would be unsafe to accept evidence of PW3 Shivaji because he was
not knowing accused no.2, but his identity was disclosed to him by
co-watchman one Shri Sasane and said Sasane was not examined
during the course of the trial. The learned counsel also submitted
that PW3 Shivaji did state in his cross-examination that he had not
seen clearly the faces of the persons who were on Scooty. His further
submission was that it would be really unsafe to accept the evidence
of PW3 Shivaji because it was night time and in absence of source of
light, he could see accused no.2. Insofar as identification by the
“victim” is concerned, the learned counsel submitted that even as per
the prosecution case, the victim was taken to a secluded place where
rape was committed on her and looking to the spot of the incident, it
is clear that there was no source of light at that place.
Another submission of the learned counsel was that
there is omission of word “fat” person in the first information report.
55. The learned counsel further submitted that though
during the course of investigation, test identification parade was
held, it was held belatedly. He also submitted that no steps were
taken by the Investigating Officer for holding test identification
parade in respect of accused no.2 either from “father” or PW3
Shivaji. He also submitted that both the panch witnesses regarding
identification parade were not examined. He submitted that even
though during the course of identification parade, the victim has
identified accused no.2, she has not stated about his role in the
identification parade. In order to buttress his submission, the
learned counsel has relied upon the following cases :
1] 1995 Supp (4) SCC 448
(Shatrughana @ Satrughana Parida and others .vs.
State of Orissa)
2] (1972) 4 SCC 773
(Sheikh Hasib @ Tabarak .vs. State of Bihar)
3] (2015) 6 SCC 623
(Iqbal and another .vs. State of Uttar Pradesh)
56. Mr. Daga, learned counsel also submitted that even
during trial the victim has identified accused no.2 Nikhil only
through his photograph. He also questions as to how the victim
could disclose his name from the witness box.
57. By making aforesaid submissions regarding identity, the
learned counsel sum up that there was no admissible evidence
against accused no.2 Nikhil available in the entire prosecution case
and therefore, that itself is sufficient to discard the prosecution case
against him.
58. Mr. Dhawas, learned counsel for accused no.1 Sagar
submitted that he will not offer any submission about the identity
since name of accused no.1 not only was figuring in the first
information report, but he was known to the victim.
59. Learned counsel also submitted that on the question of
seizure of Scooty, the prosecution has not examined Vijay Gadekar,
from in front of whose house it was seized. Therefore, according to
him, seizure of Scooty is also suspicious.
60. Per contra, learned Additional Public Prosecutor Mr.
Doifode submitted that the prosecution was successful in establishing
the identify of accused no.2 as one of the culprits. He submitted that
if evidence of PW3 Shivaji is evaluated in the whole background of
the prosecution case, then there will be no other way but to accept
his evidence in respect of identity of accused no.2. On the aspect of
source of light, the learned Additional Public Prosecutor would
submit that this Court can take judicial notice of certain facts. He
submitted that the incident in question had occurred on 27.04.2019.
He, with the assistance of calender “Kalnirnay”, has pointed out that
18.04.2019 was a full moon night (Pornima) and 04.05.2019 was the
night of no moon (Amavasya). He, therefore, submitted that there
was sufficient moon light on the day of the incident and therefore,
“victim” could recognize accused no.2 while committing rape on her.
61. We have given our anxious thought and consideration to
the submissions made by both the learned counsel.
62. On the point of delay in holding test identification
parade of accused no.2, Mr. Daga, learned counsel has pressed into
service judgment of the Hon’ble Apex Court in Shatrughna Parida’s
case (supra). In this case, test identification parade was held after
1½ months after the occurrence in question. The learned counsel for
the appellant therein, therefore, submitted that the Apex Court
should set aside the conviction and sentence. Admittedly, in the case
at hand, test identification parade was conducted on 15.06.2019 i.e.
after 50 days of the occurrence. Therefore, according to the learned
counsel for accused no.2, test identification parade has to be
discarded in view of Shatrughna Parida’s case (supra).
63. Each prosecution case has to be evaluated as per the
facts brought on record. A careful reading of the judgment of
Hon’ble Apex Court in Shatrughna Parida’s case would show that
except test identification parade, there was no other corroborative
evidence. In the case at hand, the prosecution is not only relying on
test identification parade of accused no.2 alone, but the prosecution
is also heavily relying on proved facts through scientific evidence to
corroborate its case. Therefore, we have no difficulty to record here
with respect that the judgment in Shatrughna Parida’s case (supra)
cannot be made applicable in the present matter.
64. Insofar as the rulings in Sheikh Hasib and Iqbal’s cases
(supra) are concerned, the facts involved in these reported cases are
entirely different than the case at hand and therefore, in our view,
the learned counsel for accused no.2 was not right in placing reliance
on the said two judgments.
65. By catena of decisions including Sheikh Hasib’s case
(supra), the Hon’ble Apex Court has ruled that substantive evidence
is the statement of witnesses in the Court. The test identification
parade is held to lend assurance that the investigation is on right
path. The Hon’ble Apex Court in Sheikh Hasib’s case has ruled that if
there is no substantive evidence about the person having been one of
the accused persons when the witness saw them at the time of
occurrence of the offence, then test identification parade against him
cannot be of any assistance to the prosecution. Keeping this principle
in mind, let us scrutinize the evidence brought on record about
identification.
66. Firstly, we would like to appreciate the submission of the
learned counsel as to whether identification of both the accused by
the “victim” was proper identification or not because they were
identified by the “victim” in the Court from their photographs.
67. The first information report would show that apart from
penal provisions of the Indian Penal Code, the Investigation Officer
also registered the offence under Section 6 of the POCSO Act, 2012.
Similarly, the charge was also framed against both the accused for
the offence punishable under Section 6 of the POCSO Act. Clause
(d) of Section 2 of the POCSO Act defines “child” and according to
the said provision, the “child” means – “any person below the age of
eighteen years.”
68. In the earlier part of this judgment, we have already
dealt with the issue of age and has recorded a finding that the victim
was a “child” under the provisions of the POCSO Act. The trial was
conducted in the Court of learned Special Judge, Buldhana as Special
(POCSO) Case No. 27/2019.
69. The POCSO Act was enacted to protect the children from
the offence of sexual assault, sexual harassment and pornography
and provide for establishment of Special Courts for trial of such
offences and for matters connected therewith or incidental thereto.
Chapter V of the POCSO Act deals with the procedure for reporting
of cases. Chapter VI of the said Act deals with the procedure for
recording the statement of the child ; and Chapter VIII of the Act
deals with the procedure and powers of the Special Courts of
recording of evidence.
70. Section 36 of the POCSO Act is reproduced hereunder :
“Section 36 – Child not to see at the time of testifying -
(1) The Special Court shall ensure that the Child is
not exposed in any way to the accused at the time
of recording of the evidence, while at the same
time ensuring that the accused is in a position to
hear the statement of the child and communicate
with his advocate.
(2) For the purposes of sub-section (1), the Special
Court may record the statement of a child through
video conferencing or by utilizing single visibility
mirrors or curtains or any other device.”
Sub-section 1 of Section 36 mandates the Special Court
that the said Court shall ensure that the child is not exposed in any
way to the accused at the time of recording of evidence, while at the
same time ensuring that the accused is in a position to hear the
statement of the child and communicate with his advocate. Subsection
2 of Section 36 also permits the Special Court to record
statement of the child through video conferencing.
71. In our view, in order to give complete meaning to subsection
1 of Section 36 of the POCSO Act, the learned Special Judge
was absolutely right in recording evidence of the “victim” in respect
of identification of accused persons by allowing the learned
prosecutor to show their photographs. Further it was never the case
of any of the accused either during trial or even before this Court
that the photographs of the accused were not shown to the victim.
Even it was not their case either during trial or even before this Court
that the accused persons were not having opportunity to hear the
statement of the child i.e. “victim” and they were unable to
communicate with their advocate in that behalf. In view of this, we
have no hesitation in our mind to reject the submission made by the
learned counsel that the identification of accused persons in the
Court by the “victim” is vitiated because they were identified by the
“victim” through photographs.
72. The submission of the learned counsel for the accused
was that though “father” was knowing accused no.2, his name was
not disclosed in the first information report. In the first information
report (Exh.19), it was stated by “father” that - “on 26.04.2019 at
10.00 O’clock in the night, after taking dinner when he along with
his family were sleeping, at about 11.00 O’clock in the night, Sagar
(accused No.1) along with one boy to whom he knows very well but
not knowing his name, came on Scooty.” This particular assertion in
the first information report itself is sufficient to discard the
submission of the learned counsel in that behalf since the first
informant himself has stated that he was not knowing the name. If
that be so, it is a very adventurous submission by the learned counsel
that the informant did not disclose the name of accused no.2 though
he was knowing him.
73. Another submission of the learned counsel for the
accused was that PW3 Shivaji was not knowing any of the accused
and identity of accused no.1 was disclosed by one Prakash Sasane
and still Prakash Sasane was not examined. During crossexamination
of PW3 Shivaji, it was brought on record that at the
time of recording of the evidence said Sasane was passed away. In
the cross-examination of PW3 Shivaji, it was brought on record that
Prakash Sasane had disclosed only name of accused no.1 to him.
74. PW3 Shivaji was a Security Guard at APMC market,
Chikhli with Kashinath Appa Bondre. His evidence would show that
he was knowing “father” of the “victim”, who was also doing labour
work at APMC. As per evidence of PW3 Shivaji, on 26.04.2019, his
duty started at 9.00 p.m. and one Sasane was also doing security
duty. His evidence would show that at 11.30 p.m., two persons came
on red Scooty. He stopped them and made enquiry as to why they
were moving in the night. He also told them not to move in that
area during night time and asked them to leave that area. That time,
as per evidence of Shivaji, Shri Sasane disclosed that one of them
was Sagar Borkar (accused no.1). Evidence of PW3 Shivaji further
discloses that at about 1.00 p.m., he saw three persons travelling on
same Scooty, one was Sagar and another person’s name he was not
knowing and in between them there was a girl, aged about 7-8 years
and when he tried to stop them, they did not stop. His evidence
further reveals that after some time, “father” of the girl came and
made enquiry about his daughter. That time, as per the evidence of
PW3 Shivaji, he disclosed to the “father” that his daughter was taken
away on Scooty by two persons. From the witness box, he did state
that he can identify those two persons, who had taken away the girl.
Relevant portion of the evidence is as under :
“I can identify those two persons who have taken
away the girl. Accused persons shown to me are
same. Witness has pointed out his finger saying
that, one is Sagar.”
75. According to the learned counsel for accused no.2,
therefore, PW3 Shivaji has not identified accused no.2 as he only
pointed his finger towards Sagar.
We are afraid to accept this submission of the learned
counsel. Evidence of PW3 Shivaji would show that another
watchman Shri Sasane only disclosed the name of accused no.1 to
him. If that be so, he has rightly pointed out the finger by taking
name of Sagar, but at the same time he did state and he did identify
accused no.2 also because he deposed that “accused persons shown
to me are same.” (emphasis supplied)
76. From the cross-examination of PW3 Shivaji, it is brought
on record that even during night time villagers used to come with
four wheelers and used to park their vehicles in the ground. From
the evidence of PW14 PI Gulabrao Wagh, it is clear that APMC was
under CCTV surveillance. During the course of hearing, this aspect
was not disputed.
As per evidence of PW14 Gulabrao Wagh, seven CCTV
cameras were fixed in APMC Market. Camera no.2 was covering
area near Mahesh Traders and Camera no.10 was covering the area
near main gate. CCTV footage was also seen by the Investigating
Officer in presence of the panchas. Fixing of seven cameras clearly
show that in APMC area, there was no darkness. Therefore, PW3
Shivaji could see the faces of both the accused persons on two
occasions, firstly at 11.30 pm when they were roaming on red Scooty
and they were stopped by this prosecution witness, made enquiry
with them and asked them to leave the place, which portion was not
at all challenged during his cross-examination ; and secondly, at
about 1.00 p.m. when he saw three persons travelling on same
Scooty, one was Sagar and another person’s name he was not
knowing and in between them there was a girl, aged about 7-8 years
and when he tried to stop them, they did not stop. Therefore,
though PW3 Shivaji was not knowing the name of accused no.2, he
had sufficient opportunity to watch the face of accused no.2 and only
because he was not called in test identification parade, his
substantive evidence identifying accused no.2 cannot be discarded.
Though, in the cross-examination, an attempt was made to seek his
admission that he had not seen clearly the faces of the persons on
Scooty, that does not mean that he had not seen the faces at all.
Therefore, in our view, there was proper identification of accused
no.2 by PW3 Shivaji from the witness box.
77. As per evidence of the “victim”, when she was sleeping ,
she was lifted from her house. Though at that time she was sleeping,
her unchallenged evidence would show that she woke up when she
was made to sit on Scooty. From APMC, she was taken about one
kilometer away where rape was committed on her. So during this
travel, there was sufficient opportunity for her to see and watch the
faces of both the accused persons. Of course, out of those two, she
was knowing accused no.1 as it is clear that he was resident of very
same area where victim’s family used to reside.
78. True it is that at the place of occurrence, there was no
source of light, however, learned Additional Public Prosecutor with
the assistance of the calender has pointed out rightly in our view that
the intervening night of 26th and 27th April, 2019 on which the
incident had occurred, was not a night of no moon. There is nothing
on record to show that clouds were hovering in the sky and moon
was not visible. Further, both the accused committed rape on a small
girl that postulates that their faces were very near to her and it is not
that their faces were covered In our view, the little girl will never
forget the faces of the persons who subjected her to brutal rape and
she will always remember their faces forever. We have already seen
the medical evidence, which shows how brutally both the accused
persons have fulfilled their carnal lust. In our view, it will be really
impossible for the girl to forget the faces of those beasts. She
identified accused no.2 not only in test identification parade, but also
from the witness box.
79. The prosecution case cannot be faulted for not
examining the panch witnesses during test identification parade. The
prosecution has examined Kunal Zalte (PW13), Naib Tahsildar, who
conducted test identification parade. Before conducting test
identification parade, PW15 Dy.S.P. Mahamuni sought permission
from learned Special Judge for holding and conducting test
identification parade by giving request letter (Exh.109). It is dated
09.05.2019. On 10.05.2019, the said was allowed. Accordingly, test
identification parade was held on 15.06.2019, in which the victim
identified accused no.2. It is to be mentioned here that except that
the identification parade was held after 50 days, the learned counsel
for accused no.2 could not point out any lacunae in the test
identification parade.
At the cost of repetition, we again point out that test
identification parade is not a substantive piece of evidence.
Substantive piece of evidence is the identification of the accused by
the witness from witness box and in this case, the “victim” has very
firmly identified both the accused. If that be so, even if there is some
lacunae in holding test identification parade, only on that, the
important piece of evidence of the victim identifying the culprit who
committed rape on her, is not and cannot be allowed to be washed
away. Therefore, we have no hesitation in our mind to reject the
submissions made on behalf of learned counsel for the accused
persons about identification.
80. In so far as Scooty is concerned, evidence of “father”
(PW1) as well as PW3 Shivaji would show that two persons came on
the spot on Scooty. “Father” witnessed them in between 11.00 to
11.30 p.m. as noticed by PW3 Shivaji, whereas at 1.00 O’clock in the
night obviously PW3 Shivaji noticed both the accused persons along
with the victim in between them on Scooty.
81. During the course of the investigation, it was revealed
that two wheeler Scooty was used for carrying the victim from her
place to the place of occurrence. PW14 PI Gulabrao Wagh seized
Scooty bearing registration No. MH-28/AM-1298 under seizure
panchanama (Exh.29). Seizure Panchanama (Exh.29) is duly proved
by PW2 Subhash Bhalerao.
After the investigation was handed over to PW15 Dy.S.P.
Mahamuni, on 08.06.2019, he gave letter (Exh.114) to the Regional
Transport Officer (RTO) for obtaining the documents of the Scooty.
Accordingly, on 10.06.2019, he received the documents along with
letter of the RTO (Exh.115), whereas the vehicle particulars are at
Exh.116. Vehicle particulars (Exh.116) would show that accused
no.2 Nikhil is the owner of two wheeler i.e. M-cycle/scooter. Further
accused no.2 has not disputed that he is not the owner of the two
wheeler, which is commonly used by word “Scooty” by the
prosecution witnesses. From the evidence of PW2, Scooty was seized
from Pundlik Nagar. The charge as well as the memo of appeal filed
by accused no.2 Nikhil show the place of his residence as Pundlik
Nagar. If that be so, merely because Mr. Gadekar, in front of whose
house the Scooty was parked and seized, was not examined, is not
sufficient to discard the evidence of the prosecution regarding
seizure and identification of the Scooty.
E] VICTIM’S VERSION :
82. “Victim” (PW4) was examined by the prosecution during
trial. Rape was committed on her and according to the prosecution,
the accused persons committed the same.
83. From the evidence of the prosecution, it is clear that her
date of birth is 27.01.2019, which is in conformity with Birth
Certificate (Exh.55). Her evidence shows that she was taking
education in a school run by Municipal Council, Chikhli. The learned Judge before whom trial was conducted found that the “victim”
though minor, knows sanctity of oath. Therefore, oath was
administered to her. It is also seen from the record that in view of
the provisions of the POCSO Act, her father was also present while
recording her evidence.
84. Her evidence would show that on the date of the
incident, after taking dinner, she and her parents slept. When she
was asleep, accused no.1 and according to the “victim’s” version, one
fat boy came and they lifted her and took away to the vehicle i.e.
Scooty. She did state that when she was kept on Scooty, she woke
up. She was kept in between them. Thereafter they took her near
grave yard, where there was a cement ota. There they removed her
clothes i.e. her pant, thereafter accused no.1 Sagar and fat person
also removed their pants, then accused no.1 inserted his urinary
organ into her urinal place, similarly, fat boy also inserted his urinal
organ into her urinary place, is the account given by the victim about
rape. She also deposed that due to these acts of both the accused,
her private part started bleeding. Also her stomach started aching.
After fulfillment of their sexual lust, as per the “victim” both the
accused asked her to sit on Scooty and then they dropped her near
Mounibaba math, where she met with her parents.
85. During trial, learned Prosecutor invited attention of the
“victim” by showing the clothes to her which were on her person at
the time of incident, which she identified as very same.
86. The version of the “victim” that both the accused persons
kept her in between them when they were proceeding on Scooty
from tin shed to the actual spot of incident, is duly corroborated by
PW3 Shivaji, who did state that at about 1.00 am he noticed three
persons travelling on Scooty, one was Sagar (accused no.1) and one
another person, whose name said witness was not knowing and in
between them, there was a girl.
87. The victim was knowing accused no.1 Sagar. From her
cross-examination conducted by the learned counsel for accused
no.1, it was brought on record that she resides in Gorakshan wadi
and accused no.1 used to reside in other lane. During her crossexamination,
a suggestion was given to the “victim” that due to
darkness she was unable to state as to who had taken her to the
cricket ground. Said suggestion was stoutly denied by the “victim”.
In the earlier part of this judgment we have already discussed about
the source of light.
88. Suffice to say that from the suggestion given to her, it
appears that there was no complete darkness in the APMC area.
Though, the “victim” was not knowing by name accused
no.2, during her cross-examination at the hands of learned counsel
for accused no.2, she stated that :-
“I have seen fat boy prior to the incident.”.
Nothing could be brought on record during her cross-examination
that her evidence suffers from improvements and omissions when
her police statement was recorded under Section 161 of the Code of
Criminal Procedure.
89. After reading the notes of evidence of the “victim”, at
three places the learned Judge before whom the trial was conducted,
has noted that the “victim” was weeping when the questions were
put to her to suggest that she was lying. In fact at one place she
volunteered to the Advocate conducting cross-examination for
accused no.1 that he is lying. The demeanor of the witness,
especially the victim during the course of the trial, which was noted
by the learned Judge has its own importance.
90. In this case, rape was committed on the girl in between
1.00 am to 2.00 a.m. at a secluded place. Therefore, nobody can
expect that the act of the accused could be witnessed by anybody.
91. Evidence of the victim, in our view, is free from
improvements. There is nothing on record to show that the victim
was having any motive to implicate any of the accused falsely. We
are of the view that evidence of the victim is trustworthy and
reliable. Further she suffered injuries on her private part which
corroborates her version, though corroboration to the version of the
“victim” in rape cases through medical evidence is not rule. Once it
is found by Court that evidence of “victim” in rape cases is found to
be trustworthy and it inspires confidence then the solitary evidence
of such “victim” is sufficient to record conviction. In the present
case, not only the evidence of “victim” is found to be trustworthy, but
in addition to that it is proved that due to the rape, she suffered life
threatening injuries.
F] SCIENTIFIC EVIDENCE :-
92. In this case, the prosecution is relying upon Chemical
Analyser’s reports as well as DNA report to show complicity of both
the accused in relation to the rape committed by them on “victim”.
93. Learned counsel for the accUsed submitted that for
certain lacunae, DNA report (Exh.10) needs to be discarded.
According to the learned counsel for the accused, prosecuting agency
has failed to examine the Assistant Chemical Analyser, who gave C.A.
report as well as DNA report. To buttress the said submission, the
learned counsel relied upon the decision of Single Judge of this Court
(Coram : V.M.Deshpande, J.) in Nagesh Samayya Made .vs. State of
Maharashtra, reported in 2019 All M.R. (Cri) 2224. So also, he
relied upon the decision in Ganesh Laxman Madne .vs. State of
Maharashtra, reported in 2019 (5) Mh.L.J.(Cri) 314.
94. In the earlier part of this judgment, we have already
discussed that the victim was brought in the early morning hours at
Rural Hospital, Chikhli and she was examined by Dr. Vijaya Kharpas
(PW6) and her evidence is elaborately discussed.
Evidence of Dr. Kharpas (PW6) would show that after
examination of the victim, she obtained nail samples, blood samples
i.e. plain and EDTA, vaginal swab, urethral swab etc. Her
unchallenged evidence shows that after obtaining samples, she
sealed the samples and handed over it to a Lady Police Constable,
who was on duty. At the same time, she did state that she could not
obtain pubic hair sample of the “victim” because of its absence.
Evidence of the victim also shows that the clothes of the
victim were smeared with blood.
95. PW14 PI Gulabrao Wagh was in-charge of the
investigation from 27.04.2019 till it was handed over to Dy.S.P.
Mahamuni (PW15) on 29.04.2019 as per the orders of the
Superintendent of Police, Buldhana (Exh.95) because of invocation
of the provisions of penal sections under the Atrocities Act. On
27.04.2019, as per the evidence of PW14 PI Wagh, Lady Police
Constable brought samples of the victim from hospital in sealed
condition. Those were seized by him in presence of panch witness
Subhash Bhalerao (PW2). Seizure panchanama is at Exh.26. This
contemporaneous document shows that the samples were in duly
sealed condition.
96. Similarly, on very same date, the clothes of the “victim”
were also seized in presence of PW2 Bhalerao, which were produced
by LPC. The clothes, consisting of full lower pant (Salwar) and top,
were seized under seizure panchanama (Exh.25) and those were
sealed. These clothes were duly identified as Article-A and Article-B
by panch witness Subhash Bhalerao (PW2) from the witness box.
From the cross-examination of PW14 PI Wagh and PW2
Bhalerao, it is clear that there was no serious challenge at all on the
aspect of “sealing” of the clothes and samples of the “victim”.
97. PI Gulabrao Wagh (PW14) arrested accused no.1 Sagar
Borkar on 27.04.2019 itself at about 11.32 hours under arrest
panchanama (Exh.79). After arrest, his clothes i.e. one white colour
shirt, light blue colour jeans pant and light blue colour underwear
having blood stains, were seized in presence of panch witness
Subhash Bhalerao (PW2). Those were seized under seizure memo
(Exh.27).
98. The Investigating Officer also sent accused no.1 Sagar to
the Rural Hospital, Chikhli for his medical examination by issuing
communication dated 27.04.2019 (Exh.51) addressed to Medical
Officer, Rural Hospital, Chikhli requesting him to conduct medical
examination of accused no.1. Accordingly, Dr. Nutan Kale (PW8),
who was discharging his duty at Rural Hospital, Chikhli on
27.4.2019, conducted medical examination of accused no.1 when he
was brought to him. Evidence of Dr. Kale (PW8) would show that
before medical examination, he obtained consent of accused no.1.
99. Evidence of Dr. Kale (PW8) would show that he
collected blood samples, pubic hair sample, nail clipping and semen
sample of accused no.1, as it could be seen from Exh.52. His
evidence further shows that after collection of the samples, he sealed
it and handed over the same to the Constable. When those samples
were brought in the police station, the Investigating Officer seized
the same under seizure memo (Exh.28).
100. Investigating Officer PI Wagh (PW14) arrested accused
no.2 Nikhil under arrest memo (Exh.85) on 28.04.2019. After his
arrest, he was also sent for medical examination at Rural Hospital,
Chikhli and he was examined by Dr. Sachin Kadam (PW5) on
29.04.2019 when accused no.2 was brought to him with a letter
(Exh.38) from the Investigating Officer requesting him to conduct
medical examination of accused no.2. Accordingly, PW5 Dr. Kadam
examined accused no.2 and after examination, he collected samples
of blood, pubic hair, nails and nail clippings, preferential swab,
coronal swab and urotrol swab for chemical analysis and those were
sealed and handed over to the Police Constable on duty. He also
identified from the witness box accused no.2 as the same person,
whose samples were taken by him. Similarly, clothes of accused no.2
were also seized under seizure panchanama (Exh.30) and under
seizure memo (Exh.31). The samples collected and sealed by Dr.
Kadam (PW5) were seized by the Investigating Officer in presence of
panch witness Subhash Bhalerao (PW2).
101. Worth to mention here that from witness box, both, the
Investigating Officer and panch witness, have identified the clothes
of accused nos.1 and 2 when those were shown to them.
102. Muddemal was sent to the Regional Forensic Science
Laboratory (RFSL), Amravati by Dy.S.P. Mahamuni (PW15) under
letter (Exh.99) dated 02.05.2019. Exh.99 shows an endorsement
that those were received on 03.05.2019 in the said laboratory.
103. The Chemical Analyser’s reports are at Exh.135
collectively. It show that the samples and the clothes of the “victim”
were registered as M.L. Case No. BAM-1310/19, in respect of
accused no.1 it was registered as M.L. Case No. BAM-1311/19, and
in respect of accused no.2 it was registered as M.L. Case No. BAM-
1312/19.
104. Perusal of C.A. reports (Exh.135) would show that the
muddemal in respect of “victim” and both the accused was received
in sealed condition.
105. Examination of M.L. Case No. BAM-1310/19 would
show that blood group of the “victim” was determined as “B”. As per
M.L. Case No. BAM-1311/1, blood group of accused no.1 Sagar was
determined as “A”, whereas as per M.L. Case No. 1312/19, blood
group of accused no.2 Nikhil was determined as “AB”.
Ex.A1 and A2 were the clothes of the victim i.e. top and
full lower pant (stated to be salwar) ; Ex.B1 to B3 were the clothes of
accused no.1 Sagar i.e. full shirt, full jeans pant and underwear ; and
Exh.C1 to C3 were the clothes of accused no.2 Nikhil i.e. full jeans
pant, full T-shirt and underwear (torn).
106. C.A. Report (Exh.135), which is available in this paper
book running from page nos.130 to 131, would show that blood was
detected on the clothes of the “victim”. Similarly, underwear of
accused no.1 Sagar was also found to be stained with blood. So also,
clothes of accused no.2 Nikhil i.e. full pant, full T-shirt and
underwear were found to be stained with blood. C.A. report shows
that clothes of the “victim” were stained with blood of group ‘B’,
obviously because of the fact that her blood group was determined as
“B”. Though, on the clothes of the accused blood was found, as
noted above, its group could not be determined, however,
importantly, the blood found on their clothes was human blood.
107. C.A. Report also shows that full lower pant (salwar) of
the “victim” was having four semen stains, two semen stains each of
about 1 cm in diameter on back middle portion, one semen stain of
about 2 cm in diameter and one semen stain of 3 cm in diameter on
front right middle portion of the said Salwar. The Chemical Analyser
found that said semen detected is of human.
108. C.A. Report (Exh.135) would further show that exhibits
(1), (2) i.e. clothes of the victim and exhibits (5), (6), (7) and (8) i.e.
clothes of accused no.1 Sagar and accused no.2 Nikhil, were
forwarded for DNA analysis as M.L. Case No. DNA AM-15/19.
109. Exh.10 is the DNA report. Results of the analysis are as
under :
“- DNA extracted from blood detected on Ex.1 Top,
Ex.2 Full lower pant, Ex.5 Underwear, Ex.6 Full jeans
pant, Ex.7 Full T-shirt, Ex.8 Underwear in BAM-
1309/19, Semen detected on Ex.2 Full lower pant in
BAM-1309/19, Exh.1 prepared blood stain, Ex.4
Vaginal swab and Ex.5 Urethral swab of “victim”
(...name…) in BAM-1310/19 and Exh.1 prepared
blood stain of Sagar Vishwanath Borkar in BAM-
1311/19 and Exh.1 Prepared blood stain of Nikhil
Shivaji Golait in BAM-1312/19 was typed at 15 STR
LOCI and gender specific Amelogenin locus using PCR
Amplification technique.
- Ex.2 Prepared blood stain of “victim” (..name…) in
BAM-1310/19, Ex.2 Prepared Blood stain of Sagar
Vishwanath Borkar in BAM-1311/19 and Ex.2
Prepared blood stain of Nikhil Shivaji Golait in BAM-
1312/19 are control samples.
- No amplifiable DNA is obtained from blood detected
on Ex.6 Full jeans pant in BAM-1309/19.
After the results of analysis of DNA examination, the Assistant
Chemical Analyser gave Interpretation, which are as under :
1. DNA profile obtained from blood detected on Ex.1
Top, Ex.2 Full lower pant, Ex.7 Full T-shirt, Ex.8
underwear is identical and from one and the same
source of female origin and matched with DNA
profile obtained from Ex.1 Prepared blood stain of
“victim” (...name..)
2. Mixed DNA profile obtained from blood detected
on Ex.5 Underwear matched with DNA profile
obtained from Ex.1 Prepared blood stain of “victim”
(..name..) and Ex.1 Prepared blood stain of Sagar
Vishwanath Borkar.
3. Mixed DNA profile obtained from semen detected
on Ex.2 Full lower pant (Stain 1, Stain 2 and Stain
3) matched with DNA profile obtained from Ex.1
Prepared blood stain of “victim” (..name..) and
Ex.1 Prepared blood stain of Nikhil Shivaji Golait.
4. DNA profile obtained from semen detected on Ex.2
Full lower pant (Stain 4) matched with DNA profile
obtained from Ex.1 Prepared blood stain of Nikhil
Shivaji Golait.
5. DNA profile obtained from Ex.4 Vaginal swab and
Ex.5 Urethral swab of “victim” (..name..) is of
female origin and matched with the DNA profile
obtained from Ex.1 Prepared blood stain of “victim”
(..name..).”
110. From the interpretation, it is clear that DNA profile
obtained from the blood detected on top, full lower pant (salwar) of
the “victim: and full T-shirt and underwear of accused no.2 was
identical and from one and the same source of female origin and
matched.
Similarly, blood detected on underwear of accused no.1
Sagar matched with the DNA profile obtained and prepared from
blood detected on Ex.1 Top of the “victim”. So also it was found
that semen on the cloths after DNA examination from the blood stain
of accused no.2 Nikhil was his semen.
111. At this stage, it would be useful to note that, both C.A.
examination as well as DNA examination were done by Dr. Santosh
R. Kote, Assistant Chemical Analyser, RFSL, Amravati. In view of this
fact, the reliance placed on Nagesh Somayya Made’s case (supra) is
clearly distinguished on the facts itself because in that case, CA
report and the DNA report were prepared by two different Assistant
Chemical Analysers. In that context and in view of other facts as
appearing, the Court was of the view that in order to remove the
ambiguity, examination of scientific expert ought to have been done
though it was not mandatory. Insofar as reliance placed on Ganesh
Laxman Madane’s case (supra), the said case is of little help to the
learned counsel because in paragraph 38 of the said report, it was
specifically observed that though there is DNA report, the nicker of
the victim was all the time exposed and therefore, contamination is
not completely ruled out.
In the present case, right from obtaining samples, their
seizure and seizing of the clothes of the “victim” as well as both the
accused persons, those were properly sealed. During the trial also
nothing could be brought on record by the defence that there was
any chance of tampering with the samples and the clothes of the
“victim” as well as accused nos.1 & 2.
112. DNA is predominant forensic technique for identifying
criminals with the help of biological tissues. Importance and
authenticity of DNA report is already well settled by the Hon’ble
Apex Court in the case of Mukesh and another .vs. State, reported at
2019(2) Mh.L.J. (Cri.)(SC) 52. In this authoritative pronouncement,
the Hon’ble Apex Court has observed that -
“From the aforesaid authorities, it is quite
clear that DNA report deserves to be accepted
unless it is absolutely dented and for non-
acceptance of the same, it is to be established that
there had been no quality control or quality
assurance. If the sampling is proper and if there is
no evidence as to tampering of the samples, the
DNA test report is to be accepted.”
113. In absence of any contrary, we have no hesitation in our
mind to record a finding that the prosecution has proved about the
quality control and quality assurance in respect of examination of
samples. We are of the view, which can be deduced from the
available evidence itself that the clothes and samples of the victim as
well as both the accused persons were properly sealed and those
were not tampered at any point of time. In our view, therefore, the
learned Special Judge, before whom the trial was conducted, has
rightly accepted both C.A. report and DNA report.
114. It would be useful to make a reference here that during
the course of submissions, both the learned counsel for the accused
pointed out that though CA report and DNA report were used by the
learned Special Judge while holding the accused guilty and awarding
punishment, specific questions in that behalf were not put to them
when they were examined under Section 313 of the Code of Criminal
Procedure and thus an opportunity was not given to them to offer
their explanation. They submitted that the questions were put to
them generally. Even the learned Additional Public Prosecutor Mr.
Doifode fairly submitted that the specific questions were not put to
them.
115. The question whether at the appellate stage
incriminating material can be brought to the notice of the convicts in
order to give them an opportunity to offer their explanation is not in
res integra in view of the authoritative pronouncement of the
Hon’ble Apex Court in Nar Singh .vs. State of Haryana, reported in
(2015) 1 SCC 496 and more specifically it is settled in paragraph 23
of the said judgment. Paragraph 23 from the said report is
reproduced herein below :
“23. When such objection as to omission to put the
question under Section 313 CrPC is raised by the
accused in the appellate court and prejudice is also
shown to have been caused to the accused, then
what are the courses available to the appellate
Court ? The appellate court may examine the
convict or call upon the counsel for the accused to
show that what explanation the accused has as
regards the circumstances established against him
but not put to him under Section 313 CrPC and the
said answer can be taken into consideration.”
116. In view of this authoritative pronouncement, on
05.8.2021, this Court proposed to examine both the accused persons
under Section 313 of the Code of Criminal Procedure by recording
their further statement in order to given them an opportunity to offer
explanation, if they wish, to the incriminating evidence used against
them in trial.
117. Both the accused persons used to be brought before this
Court right from the first day of hearing from jail custody, it being
the confirmation of their death sentence. On 05.8.2021, in presence
of their respective counsel, this Court brought to the notice of both
the accused the incriminating evidence appearing against them in
C.A. report (Exh.135) and DNA report (Exh.10) by putting them
questions in ‘Marathi’. This Court also gave an understanding to
them that it is not compulsory on them to answer the questions in a
particular fashion or manner.
118. Neither of the accused offered any explanation to the
question put to them. On the contrary, their replies were that the CA
report (Exh.135) and DNA report (Exh.10) are false. Their
vernacular answers were taken in the handwriting of one of us and
both the accused replied only “[kksVs vkgs-” Thus, though an
opportunity was given to both of them, they did not offer any
explanation, but state that everything is false.
119. In our view, oral evidence of the “victim”, which is
otherwise also found to be trustworthy and inspiring confidence
about the sexual assault made on her by to the accused, found
corroboration from the scientific evidence i.e. CA report (Exh.135)
and DNA report (Exh.10) and therefore, we are recording finding to
that effect accordingly.
G] ADMISSIBILITY OF ELECTRONIC EVIDENCE :-
120. Sections 65A and 65B of the Evidence Act, 1872 deal
with the admissibility and contents of evidence of information
contained in electronic records. The Apex Court in the case of
Anwar P. V. vs P. K. Basheer, reported in (2014) 10 SCC 473 has held
that these two sections are a complete Code in themselves on the
admissibility of evidence of information contained in electronic
records.
121. Section 65B(1) differentiates between –
i) the “original document” – the electronic record on
the device in which the original information is first
stored (qualifying it as primary evidence), and
ii) the output from such device which contains
information originating from the original document,
i.e. a copy made therefrom (being secondary
evidence) [Arjun Panditrao Khotkar vs Kailash
Kushanrao Gorantyal, (2020) 7 SCC 1].
122. The Hon’ble Apex Court has in Arjun Panditrao Khotkar
(supra), in para 73.2, expounded the law on admissibility of primary
and secondary evidence in electronic form in the following words–
“ 73.2. The clarification referred to above is that
the required certificate under Section 65B(4) is
unnecessary if the original document itself is
produced. This can be done by the owner of a
laptop computer, computer tablet or even a mobile
phone, by stepping into the witness box and
proving that the concerned device, on which the
original information is first stored, is owned
and/or operated by him. In cases where the
“computer” happens to be a part of a “computer
system” or “computer network” and it becomes
impossible to physically bring such system or
network to the Court, then the only means of
providing information contained in such electronic
record can be in accordance with Section 65B(1),
together with the requisite certificate under
Section 65B(4). The last sentence in Anvar P.V.
(supra) which reads as “…if an electronic record as
such is used as primary evidence under Section 62
of the Evidence Act…” is thus clarified; it is to be
read without the words “under Section 62 of the
Evidence Act…” With this clarification, the law
stated in paragraph 24 of Anvar P.V. (supra) does
not need to be revisited.”
[Emphasis supplied]
123. It is necessary to note that the Hon’ble Apex Court in
Anwar P. V. (supra) has clarified its position on primary evidence
holding that if an electronic record is used as primary evidence under
Section 62 of the Evidence Act, it may be admissible in evidence
without any compliance of conditions under S. 65B. Arjun Panditrao
Khotkar (supra) held this position to be good law when read without
the words, “under Section 62 of the Evidence Act”, while placing its
derivation in S.65B(1). The Hon’ble Apex Court held that the
certificate under S. 65B(4) is unnecessary if the “original document”
itself is produced, since it is being used as primary evidence of the
information contained in the electronic record. This can be done by
the owner of the device (on which the original electronic record is
first stored) by proving that it is owned and/or operated by him.
124. Commonly, the original electronic record of a CCTV
footage is stored on a memory chip/CD/DVD/hard drive or any
similar device on a computer, DVR or NVR wherein the footage is
recorded. The original electronic record stored on a memory
chip/CD/DVD/hard drive, being the place where the electronic
record is first stored, is said to be the original document, qualifying it
as primary evidence. Such information can be led as evidence by
producing the hard drive, wherein the original document is first
stored, before the Court. In order to prove the information contained
in such electronic record, the memory chip/CD/DVD/hard drive on
which the electronic record was first stored can be produced before
the Court. Similarly, in cases where the device happens to be a part
of a “computer system” or “computer network”, such system or
network or server can be produced before the Court, if it is possible.
In case where the device happens to be a part of a “computer system”
or “computer network” and it becomes impossible to physically bring
such system or network to the Court, then the only means of proving
information contained therein can be, as specified above is, “in
accordance with Section 65B(1), together with the requisite
certificate under Section 65B(4).”
125. The prosecution has relied upon the CCTV footage from
camera no. 2 covering the area of the main gate of the office of
APMC Market, Chikhli. The prosecution has examined PI Gulabrao
Wagh (PW14) and Dy.S.P. Baburao Mahamuni (PW15) in order to
prove the said CCTV footage. From the evidence of Dy.S.P. Mahamuni
(PW15), it appears that the prosecution has brought on record the
CCTV footage copied in pendrive (Article-M). It is stated by Dy.S.P.
Mahamuni (PW15), that its Hash value was taken by NPC Sharad
Giri and accordingly certificate under Section 65B of the Evidence
Act (Exhibit 112) was taken. Though evidence of PI Wagh (PW14)
and Dy.S.P. Mahamuni (PW15) has been corroborated by panch
witness Subhash Bhalerao (PW2) regarding CCTV footage, it appears
that the prosecution has failed to adduce evidence of a person
occupying responsible official position in relation to the operation or
the management of the activities in relation to CCTV in the APMC
Market, Chikhli. Since the prosecution has failed to bring on record
the primary evidence in relation to CCTV footage in the form of hard
disc of the said CCTV footage wherein the footage was stored, it was
necessary for the prosecution to satisfy the ingredients of Sub-Section
(4) of Section 65B of the Evidence Act. Merely because the CCTV
footage has been exhibited by the trial Court and no objection was
raised on behalf of the accused, the CCTV footage cannot be read in
evidence. The said issue is no longer res-integra in view of the
judgment of the Hon’ble Apex Court in Arjun Panditrao Khotkar
(supra). We are, therefore, of the considered opinion that in absence
of compliance of Sub-Section (4) of Section 65B of the Evidence Act,
the CCTV footage from camera no.2 covering the area of main gate
of the office of APMC Market, Chikhli cannot be relied upon as
admissible evidence of the prosecution.
126. In addition to the evidence of CCTV footage, the
prosecution sought to rely upon SDR, CDR and tower location of the
accused. Mahamuni (PW15) has stated in his evidence that as per his
letter issued to Superintendent of Police, Buldhana, he received four
papers which were marked as Exh. 125. He stated in his evidence
that from CDR and SDR, he came to know about the location of the
accused at the time of incident. He identified the contents of the said
letter which were marked as Exhs. 126 and 127. Learned trial Court
refused to place reliance upon SDR, CDR and tower location of the
accused as the said electronic evidence were not supported by
certificate under Section 65B (4) of the Evidence Act. In our opinion,
the learned trial Court has rightly refused to rely upon the electronic
evidence placed on record by the prosecution in the form of CCTV
footage, CDR, SDR and tower location of the accused for noncompliance
of Section 65B (4) of the Evidence Act.
H] FINDINGS :-
127. In the preceding paragraphs in the body of this
judgment, we have elaborately not only discussed the prosecution
case, but also evaluated the same. We have also considered various
defences raised by the learned counsel for both the accused not only
during trial but also before us.
128. On re-appreciation of entire prosecution case, we
reached to the conclusion independently that the learned Judge
before whom trial was conducted has rightly convicted both the
accused under Section 363 read with Section 34 of the Indian Penal
Code inasmuch as both the accused persons had removed the victim,
a minor girl from the lawful guardianship of her parents and without
their consent, one of whom i.e. “father” was examined during trial.
We have elaborately discussed the evidence of four
Doctors, who examined the victim at three different places i.e. Rural
Hospital, Chikhli, Civil Hospital, Buldhana and Government Medical
College, Aurangabad which is also known as Ghati Hospital
commonly. Under head “Medical Evidence”, we have discussed in
detail the evidence of each of the Doctors, who unequivocally stated
that the minor girl (victim) suffered as many as six injuries on her
private part. Not only that, she was required to be removed from
Chikhli to Buldhana and from Buldhana to Aurangabad for her
proper health management. Evidence also shows that at private part
stitches were applied at Buldhana and ultimately she was required to
be operated upon at Aurangabad.
129. Evidence of the “victim” according to us is trustworthy.
It inspires confidence in our mind about the sexual atrocities
committed on her. We have no hesitation in our mind to record our
finding that both the accused persons are responsible for committing
rape on her. We firmly accept and believe the testimony of the victim
in view of she identifying accused no.2 Nikhil during the course of
investigation i.e. test identification parade. We also fully accept the
evidence of the victim as trustworthy regarding she identifying both
the accused from the witness box during her substantive evidence.
Therefore, there is no iota of doubt in our mind that both the
accused have committed offence punishable under Section 376(2)
(m) read with Section 34 of the Indian Penal Code.
130. The victim had given her date of birth when she was
examined in the Court as 27.01.2009. The prosecution has also
independently proved the said date of birth through PW9 Raju
Deshmukh, who proved birth certificate (Exh.55) of the “victim” to
show that her date of birth is 27.01.2009. The incident in question is
dated 27.04.2019. Thus, on the date of the incident, her age was 10
years and 3 months. Section 376-DB deals with the punishment for
gang rape on a woman under 12 years of age. Since, it is proved that
at the time of occurrence, age of the victim was below 12 years,
surely the accused persons who were two in numbers will be liable
for punishment under Section 376-DB and the learned Special Judge
has rightly convicted them and we affirm their conviction. We also
affirm the conviction recorded by the learned Special Judge for the
offence punisahble under Sec. 506 read with Section 34 of the Indian
Penal Code considering the evidence of the victim that threats were
extended to her by both the accused after committing rape on her.
131. Only accused No.2 Nikhil was convicted for the penal
provisions under the Atrocities Act i.e. Section 3(1)(w)(1) and 3(1)
(w)(ii). A plain reading of said penal provisions show that accused
must know that the woman belong to the Scheduled Caste or
Scheduled Tribe. He is also convicted for the offence punishable
under Section 3(2)(v) of the Atrocities Act.
These two penal provisions show that at the time of
commission of the offence, the accused must have knowledge that
the victim belongs to either Scheduled Caste or Scheduled Tribe and
in spite of the knowledge, he commits the acts which are punishable.
132. As per the Caste Certificate (Exh.21) of the victim, she
belong to the caste which is a Scheduled Caste. Similarly, it is proved
on record that accused no.2 is not belonging to Scheduled Caste.
Accused no.1 was belonging to Scheduled Caste.
133. After a careful scrutiny of the evidence of the “victim” as
well as “father”, there is noting on record to show that accused no.2
was knowing and/or having knowledge that family of the victim
belong to Scheduled Caste. Even learned Additional Public
Prosecutor for the State could not point out to us that aspect. If that
be so, we are of the view that the learned Special Judge ought not to
have convicted accused no.2 Nikhil for the penal provisions under
the Atrocities Act.
I] PUNISHMENT :-
134. The learned Judge of the trial Court imposed various
punishments. Though, the learned Judge has convicted both the
accused for the offence punishable under Section 6 of the POCSO
Act, both the accused were sentenced under Section 376-DB read
with Section 34 of the Indian Penal Code and imposed death
punishment. In view of imposition of death penalty, the learned
Judge made a reference to this Court for its confirmation.
135. Section 376-DB of the IPC reads as under :
“376-DB – Punishment for gang rape on woman
under twelve years of age :-
Where a woman under twelve years of age is
raped by one or more persons constituting a group
or acting in furtherance of a common intention,
each of those persons shall be deemed to have
committed the offence of rape and shall be punished
with imprisonment for life, which shall mean
imprisonment for the remainder of that person's
natural life, and with fine, or with death:
Provided that such fine shall be just and reasonable
to meet the medical expenses and rehabilitation of
the victim:
Provided further that any fine imposed under this
section shall be paid to the victim.”
136. Plain reading of this Section would show that after being
found guilty for committing gang rape on a woman under twelve
years of age, the punishment is provided i.e. imprisonment for life
which shall mean imprisonment for remainder of that person’s
natural life and with fine or with death.
Thus, it is clear that death sentence is not the only
punishment provided for the offence punishable under Section 376-
DB of IPC.
137. The Constitution Bench of the Hon’ble Apex Court in
Bachan Singh .vs. State of Punjab, reported in (1980) 2 SCC 684 in
paragraph 202 has ruled as under :
“202. Drawing upon the penal statutes of the
States in U.S.A. framed after Furman v, Georgia, in
general, and Clauses 2(a), (b), (c), and (d) of the
Indian Penal Code (Amendment) Bill passed in
:
1978 by the Rajya Sabha, in particular, Dr. Chitale
has suggested these "aggravating circumstances":
Aggravating circumstances : A Court may, however,
in the following cases impose the penalty of death
in its discretion:
(a) if the murder has been committed after previous
planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the
armed forces of the Union or of a member of any
police force or of any public servant and was
committed -
(i) while such member or public servant was on
duty; or
(ii) in consequence of anything done or attempted
to be done by such member or public servant in the
lawful discharge of his duty as such member or
public servant whether at the time of murder he
was such member or public servant, as the case may
be, or had ceased to be such member or public
servant; or
(d) if the murder is of a person who had acted in
the lawful discharge of his duty under Section 43 of
the CrPC, 1973, or who had rendered assistance to
a Magistrate or a police officer demanding his aid or
requiring his assistance under Section 37 and
Section 129 of the said Code.”
Similarly, paragraph 206 of the said report reads as under :
“206. Dr. Chitaley has suggested these mitigating
factors:
Mitigating circumstances:- In the exercise of its
discretion in the above cases, the Court shall take
into account the following circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is young
or old, he shall not be sentenced to death.
(3) The probability that the accused would not
commit criminal acts of violence as would
constitute a continuing threat to society.
(4) The probability that the accused can be
reformed and rehabilitated.
The State shall by evidence prove that the
accused does not satisfy the conditions 3 and 4
above.
(5) That in the facts and circumstances of the case
the accused believed that he was morally justified
in committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that
he was mentally defective and that the said defect
unpaired his capacity to appreciate the criminality
of his conduct.”
138. In this case, from the Roznama it is clear that on
11.08.2020. the learned Special Judge found both the accused guilty
of serious offences and therefore, the Court found it necessary to
hear learned Prosecutor and the learned Advocate for the accused in
view of the mandate of Section 235 of the Code of Criminal
Procedure and therefore, the judgment was suspended to hear the
accused persons on the point of sentence. Roznama of the said trial
would show that the case was then posted on 13.08.2020. In
paragraph 132 of the judgment delivered by the learned Special
Judge, it is mentioned that accused no.1 said nothing on the point of
sentence, whereas accused no.2 prayed for minimum sentence.
Learned Advocate for accused no.1 made a submission before trial
Court that accused no.1 is married having small daughter as well as
his sick mother.
139. The learned Special Judge, after considering the plea of
both the accused and considering the submission of the learned
learned Prosecutor, imposed the extreme penalty of death, of course,
by giving reasons.
140. In paragraph 206 of Bachan Singh’s case (supra), the
Hon’ble Apex Court has laid down that it is for the State to adduce
evidence to prove that the case does not satisfy condition nos.3 and
4. In the present case, no such evidence was adduced on behalf of
the State.
141. In one of the recent decisions of the Hon’ble Apex Court
in Dattatray @ Datta Ambo Rokade .vs. State of Maharashtra,
reported in 2020 All M.R. (Cri.) 36 (SC), the Hon’ble Apex Court has
taken survey of this issue by considering various decisions including
Bachan Singh .vs. State of Punjab (supra) ; Macchi Singh and
others .vs. State of Punjab [(1983) 3 SCC 470] etc. It would be
useful to reproduce herein below relevant paragraph of the
Judgment in Dattatraya’s case (supra).
“100. In Rajesh Kumar vs. State (through Govt. of NCT
of Delhi), (2011) 13 SCC 706 : [2011 ALL SCR 2670]
this Court observed:-
“83. The ratio in Bachan Singh has received
approval by the international legal community and
has been very favourably referred to by David
Pannick in Judicial Review of the Death Penalty:
Duckworth (see pp. 104-05). Roger Hood and
Carolyn Hoyle in their treatise on The Death
Penalty, 4th Edn. (Oxford) have also very much
appreciated the Bachan Singh ratio (see p. 285).
The concept of “rarest of rare” which has been
evolved in Bachan Singh by this Court is also the
internationally accepted standard in cases of death
penalty.
84. Reference in this connection may also be made
to the right based approach in exercising discretion
in death penalty as suggested by Edward
Fitzgerald, the British Barrister. [Edward
Fitzgerald: The Mitigating Exercise in Capital
Cases in Death Penalty Conference (3-5 June),
Barbados: Conference Papers and
Recommendations.] It has been suggested therein
that right approach towards exercising discretion
in capital cases is to start from a strong
presumption against the death penalty. It is argued
that “the presence of any significant mitigating
factor justifies exemption from the death penalty
even in the most gruesome cases” and Fitzgerald
argues:
“Such a restrictive approach can be summarised as
follows: The normal sentence should be life
imprisonment. The death sentence should only be
imposed instead of the life sentence in the ‘rarest
of rare’ cases where the crime or crimes are of
exceptional heinousness and the individual has no
significant mitigation and is considered beyond
reformation.”
(Quoted in The Death Penalty, Roger Hood and
Hoyle, 4th Edna., Oxford, p. 285.)
86. Taking an overall view of the facts in these
appeals and for the reasons discussed above, we
hold that death sentence cannot be inflicted on the
appellant since the dictum of the Constitution
Bench in Bachan Singh is that the legislative policy
in Section 354 (3) of the 1973 Code is that for a
person convicted of murder, life imprisonment is the
rule and death sentence, an exception, and the
mitigating circumstances must be given due
consideration. Bachan Singh further mandates that
in considering the question of sentence the court
must show a real and abiding concern for the
dignity of human life which must postulate
resistance to taking life through law’s
instrumentality. Except in the “rarest of rare cases”
and for “special reasons” death sentence cannot be
imposed as an alternative option to the imposition
of life sentence”.
142. On going through this, Hon’ble Apex Court has ruled
that Bachan Singh (supra) mandates that in considering the question
of sentence the court must show a real and abiding concern for the
dignity of human life which must postulate resistance to taking life
through law’s instrumentality. (emphasis supplied).
143. We are of the opinion that in view of the aforesaid law
laid down by the Hon’ble Apex Court death sentence is not the only
penalty for the offence under Section 376(DB) of IPC. The law as
laid down by the Hon’ble Apex Court states that on previous occasion
also the accused must be convicted for the heinous offence, which is
not the present case. Further, as we have already noted that no
evidence is recorded by the State to show that the accused persons
are menace to the society, we find ourselves disagreeing with the said
punishment imposed by the learned Special Judge. The conspectus
of all the discussion in this judgment, allows us to pass the following
order :
ORDER
1. Reference made by the learned Special Judge,
Buldhana for confirmation of death sentence of
accused No.1 – Sagar Vishwanath Borkar and
accused no.2 Nikhil Shivaji Golait for the offence
punishable under Section 376DB read with Section
34 of the Indian Penal Code, as awarded to them in
Special POCSO Case No. 27 of 2019, decided on
13.08.2020, is answered in negative.
2. Instead, accused no.1 Sagar Borkar and accused
no.2 Nikhil Golait are sentenced to suffer rigorous
imprisonment for life, which shall mean
imprisonment for the remainder of their natural life
and without any remission.
3. Criminal Appeal No. 423/2020 filed by accused
no.1 Sagar Vishwanath Borkar is dismissed.
4. Criminal Appeal No. 370/2020 filed by accused
no.2 Nikhil Shivaji Golait is partly allowed.
5. Accused no.2 Nikhil Golait is acquitted of the
offence punishable under Sections 3(1)(w)(i), 3(1)
(w)(ii) and 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act,
1989. Rest of the conviction and punishment is
confirmed.
6. All proceedings are disposed of as such.
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