The learned Additional Sessions Judge by accepting the
pursis (Exhibit 19) recorded the evidence of almost all the
witnesses in English language. The said pursis dated 15th January,
2014 reads thus;
"That, the above mentioned matter is on today's
board for hearing. Accused has no any objection if
recorded deposition in only English language.
Hence, this pursis"
The said pursis indicates that the accused had no objection
in recording the deposition in English language when, in fact, it
seems that the accused were illiterate rustic persons who are not
expected to know the procedural law. Secondly, the pursis was
signed by one Advocate Kokate. It was not a joint pursis given by
Counsel Mr. Kokate for accused No.1 and 2 and Additional Public
Prosecutor. Rather, Additional Public Prosecutor appears to have
put his signature beneath the signature of Advocate Kokate. The
learned Additional Sessions Judge had simply endorsed 'filed'.{Para 78}
79. As a matter of fact, the learned Additional Sessions Judge
appears to have fallen into grave error in not recording the
evidence of prosecution witnesses in Marathi which is the
language of the District Courts in the State of Maharashtra. In our considered view, due to such a lapse on the part of the learned Additional Sessions Judge, a failure of justice has been occasioned and the proceedings stand vitiated.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO.1 OF 2017
The State of Maharashtra Vs. Rahimuddin Mohfuz Shaikh @
John Anthony D'Souza @ Babu @ Baba
CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
PRONOUNCED ON : 25th November, 2021.
JUDGMENT: [Per Prithviraj K. Chavan, J.]
1. The learned Additional Sessions Judge, Thane had submitted
the proceedings in Sessions Case No.599 of 2012 under section
366 (1) of the Code of Criminal Procedure (for short 'Cr. P.C') for
confirmation of sentence of death passed under section 302 r/w 34
of the Indian Penal Code (for short 'I.P.C') in respect of accused
persons namely; Rahimuddin Mohfuz Shaikh @ John Anthony
D'souza @ Babu @ Baba and Sandip Samadhan Shirsat @ Raghu
Rokda.
2. Apart from sentence of death, both of them have also been
convicted of the offences punishable under sections 376 (2) (g),
326 r/w 34 I.PC and sentenced to suffer rigorous imprisonment for
life and rigorous imprisonment for 10 years on each count with
fine of Rs.5,000/- each.
3. The prosecution case, as emerged from the record, can be
stated as under.
4. This again is a sordid story of two poor, helpless and hapless
victims who had not only been raped but one of them had been
brutally murdered. (They shall be referred to as "Deceased-X" and
"Survivor-Y" for the sake of brevity).
5. There were two victims. They were friends and were rag
pickers. That was their only source of livelihood. Survivor-Y was
aged about 18 to 19 years. While deceased-X was about 28 years
and was married. Survivor-Y was roofless and hence, the railway
platform of Vashi station was her night abode.
6. On the fateful day of 9th May, 2012, deceased-X came to
meet survivor-Y from Ghatkopar. Since survivor-Y earlier used to
collect garbage at Ghatkopar and, therefore, both were acquainted
with each other.
7. Survivor-Y did not know the accused previously, however,
deceased-X knew accused No.1-Rahimuddin Shaikh. On that day,
around 12.00 noon, survivor-Y and deceased-X were standing near
Vashi garden in front of railway station. At that time, both the
accused came over there and said that they would arrange for
some job. Deceased-X and survivor-Y, therefore, decided to go
along with the accused. Both the accused took deceased-X and
Survivor-Y to Jui Nagar Bridge in a rickshaw. They offered
deceased-X and survivor-Y 'Pepsi' cold drink. Deceased-X and
survivor-Y had drunk the said cold drink. Thereafter, both of them
took deceased-X and survivor-Y to CBD Belapur by boarding
another rickshaw. The accused thereafter took deceased-X and
survivor-Y beneath a bridge and thereafter they offered them
liquor. Deceased-X and survivor-Y also consumed liquor offered by
both the accused. The accused then took both of them below the
tunnel of the bridge. Thereafter, the accused raped survivor-Y and
deceased-X. When deceased-X and survivor-Y resisted, both the
accused assaulted them with hacksaw blade and a knife.
Deceased-X and survivor-Y sustained multiple injuries on the vital
parts of their body. However, survivor-Y escaped from the clutches
of the accused and ran away from the spot. While running away,
she fell down below the bridge and sustained a head injury. She
became unconscious, however, deceased-X died on the spot due to
the multiple injuries.
8. On 9th May, 2012 itself around 4.30 p.m., one rickshaw
driver noticed injured survivor-Y lying in an injured condition and
was unconscious. He, therefore, informed C.B.D Belapur Police
Station. The Police arrived on the spot and lifted survivor-Y to the
Hospital. It is the case of the prosecution that survivor-Y was not
in a position to give her statement on that day as she was
unconscious.
9. On 10th May, 2012, in the morning a Watchman by name
Sawansingh Tolasingh Bhatera, who was staying below C.B.D overbridge,
saw, in a hollow portion (cavelet) of the over-bridge dead
body of a woman fully naked with injuries on her person. So, he
informed the Police. The Police came to the spot at about 10.00
a.m and removed the body from the tunnel with the help of Fire
Brigade Personnel. An inquest panchanama was drawn in the
presence of two panchas. The body was sent for postmortem. A
spot panchanama was also drawn in the presence of two pancha
witnesses. A torn red coloured punjabi dress stained with blood
and mud, a brassier, an odhani, a pair of black chappal, one bottle
of 100 m.l liquor, three yellow coloured bangles and five white
coloured bangles stained with blood came to be seized. The Police
had also collected blood stained mud and sample mud from the
spot. All these articles were seized from the spot.
10. The prosecution case further indicates that on the next day
morning, survivor-Y regained consciousness. On the basis of the
information given by her, an F.I.R came to be recorded at about
3.30 p.m. She gave description of those two assailants in her
report. She had stated in her report that those persons said "tumko
kaam pe lagate hai". Therefore, under that pretext took them
below the C.B.D Belapur over-bridge and subjected them to rape
and assault. Survivor-Y had sustained injuries on her face, chin,
ear, backside. Survivor-Y had also stated that both the assailants
had assaulted deceased-X with sharp weapon and committed her
murder.
11. A crime bearing No.73 of 2012 came to be registered under
section 302, 376 (2) (g) r/w section 34 of the Indian Penal Code
with C.B.D Belapur Police Station on 10th May, 2012 at 15.30
hours.
12. P.W.9- A.C.P Shekhar Tore held investigation into the crime.
He drew inquest panchanama, spot panchanama and also sent the
body of deceased-X for postmortem. The accused came to be
arrested on 14th May, 2012 at 12.20 hours. The Investigating
Officer had also recorded statements of watchman and the
relatives of survivor-Y and deceased-X. He recorded the statement
of one caterer who was working with both the accused under
section 164 of the Code of Criminal Procedure.
13. The Investigating Officer had forwarded the seized
muddemal articles to the Forensic Science Laboratory for chemical
analysis. After the investigation, a charge-sheet came to be filed
against the accused in the Court of J.MF.C, Vashi, Navi Mumbai.
14. Since the offences were exclusively triable by the Sessions
Court, the learned Magistrate committed the case to the Sessions
Court, Thane. The learned Additional Sessions Judge framed a
charge against both the accused below (Exhibit 3) under sections
376 (2) (g), 302 and 326 r/w 34 of the I.P.C. It was read over and
explained to the accused. They pleaded not guilty and claimed to
be tried. Their defence was of total denial and false implication in
the alleged offence. No defence witness has been examined.
15. To substantiate it's case, prosecution examined eleven
witnesses and tendered documentary evidence in the form of the
reports of chemical analyzer, inquest panchanama, spot
panchanama etc .
16. After considering the evidence of the prosecution witnesses
and hearing the prosecution as well as the defence on the point of
sentence, the learned Additional Sessions Judge, by the impugned
judgment found that the murder of deceased-X was committed by
the accused in such a brutal, grotesque and diabolical manner and
it being a cold blooded murder wherein deceased-X and survivor-Y
were helpless women, awarded sentence of death to both of them.
The learned Additional Sessions Judge, inter alia, awarded life
imprisonment i.e the remainder of their natural lives for having
committed the offence of gang rape, inter alia, imposing a fine of
Rs.5000/- each on both counts. They were also convicted and
sentenced of the offence punishable under section 326 r/w 34 and
were directed to undergo rigorous imprisonment for 10 years with
fine of Rs.5,000/-. The substantive sentences were directed to
run concurrently.
17. As already stated, the reference under section 366 (1) of the
Cr. P.C has been made by the learned Additional Sessions Judge for
confirmation of the death sentence.
18. Before adverting to the question of the confirmation of
sentence of death passed by the learned Additional Sessions Judge,
Thane qua both the accused, it would be essential to mention that
this Court by an oral judgment dated 22nd October, 2019 (Coram:
B.P. Dharmadhikari & Sandip Shinde, J.J.) discharged accused
No.2 Sandip Shirsat alias Raghu Rokda from Sessions Case No.599
of 2012 by quashing and setting aside the findings recorded
against him in the judgment dated 11th May, 2017, inter alia,
directing the respondent-State to produce the juvenile before the
Juvenile Justice board in accordance with the Juvenile Justice
(Care and Protection of Children) Act, 2015. The said judgment
came to be passed pursuant to an application taken out on behalf
of accused No.2 - juvenile-in-conflict-with-law, contending that on
the date of the incident i.e on 9th May, 2012, he was 16 years and
9 months old.
19. We have heard Ms. Deshmukh, learned A.P.P and Ms.
Gonsalvez, learned Counsel appearing for the accused.
20. At the outset, Ms. Gonsalvez would argue that the
prosecution has failed to establish identity of deceased-X in the
sense that there is neither oral nor documentary evidence to
conclusively establish her identity. She would argue that despite
giving an information by survivor-Y, no F.I.R came to be registered,
promptly. The F.I.R came to be registered only on the next date of
the incident at 3.30 p.m for which there is no explanation
tendered by the prosecution. As a matter of fact, survivor-Y was
very much conscious on 9th May, 2012 itself, however, an F.I.R
came to be recorded belatedly around 3.30 hours on 10th May,
2012 and, therefore, it was a fabricated document. Learned
Counsel took us through the medical papers qua survivor-Y
wherein the Psychiatrist, who had examined and described the
psychological aspect of survivor-Y which also renders her
testimony doubtful as regards commission of the alleged offence
by the accused.
21. So far as the testimony of P.W.8-Sameer Shaikh is concerned,
it is submitted that he had no occasion to see the accused during
the trial as they were not produced before the Court. Extra judicial
confession of the accused before this witness is only in respect of
the murder but there are no details as to how and whose murder
had been committed by the accused. There is no evidence of rape.
22. Ms. Gonsalvez has drawn out attention to the name of the
accused also which is Rahimuddin Mohfuz Shaikh @ John
Anthony D'Souza @ Babu @ Baba. She submits that it is difficult
to ascertain whether accused is Hindu, Muslim, Christian or
otherwise. Even identity of the accused, according to the learned
Counsel, has not been properly proved by the prosecution. There is
even no evidence that he had, in fact, was the person responsible
for committing murder of the deceased-X as well as causing
multiple wounds/injuries on the person of survivor-Y. The learned
Counsel has also questioned the evidence of other witnesses
including evidence of P.W.7- Deepali Dinkar Mahadik, who is said
to have conducted Test Identification Parade in respect of both the
accused.
23. It has been vehemently argued by the learned Counsel that
in fact, the trial has been vitiated for the reason that the learned
Additional Sessions Judge had recorded the evidence of the
prosecution witnesses only in English by accepting pursis (Exhibit
19) by showing as if the Additional Public Prosecutor and the
defence Counsel had no objection which is in total breach of the
provisions of the Criminal Manual and the Code of Criminal
Procedure. Even the accused were not produced before the Court
on certain occasions when evidence of important prosecution
witnesses came to be recorded. Learned Counsel has, therefore,
submitted that this is not the case of confirmation, rather, it is the
case of acquittal of the accused as the prosecution has miserably
failed to bring home guilt of the accused beyond all reasonable
doubts.
24. On the other hand, Ms. Deshmukh, the learned A.P.P
supported the impugned judgment by arguing that it is a case of
direct evidence of survivor-Y which has been corroborated by the
medical evidence on record. Ms. Deshmukh, would argue that
looking to the social background of survivor-Y, who is an illiterate
rag picker, it is not expected that she would give all the minute
details. However, she had duly identified both the accused during
the Test Identification Parade and also during the trial which is the
substantive evidence.
25. As regards the injuries on the person of survivor-Y, our
attention is drawn to the evidence of P.W.11-Dr. Vijay Waman
Dhakare who had opined that injuries were on the vital part of the
body and the patient could have gone into coma had there been no
immediate medical help. The learned A.P.P would argue that
defective investigation cannot result into giving some benefit to
the accused for the reason that the evidence on record, spot
panchanama, inquest panchanama and the medical evidence fully
established the complicity of the accused in the present case who
had committed brutal murder of deceased-X by inflicting blows of
a knife along with juvenile-in-conflict-with-law resulting into death
after having committed rape upon her. She would argue that even
survivor-Y had been subjected to rape by the accused and
thereafter she could have also been murdered, had she not
resisted and escaped from the clutches of both the accused. The
learned A.P.P would further argue that looking to the gravity,
nature and manner in which the offence had been committed by
the accused, the learned Additional Sessions Judge has rightly
awarded death sentence which needs to be confirmed. In support,
the learned A.P.P has placed reliance upon some authorities with
which we shall deal hereinafter.
26. To substantiate it's case, the prosecution examined as many
as eleven witnesses. The important evidence is that of survivor-Y.
In the month of May, 2012, she was staying at Vashi in a hut at the
relevant time and was collecting garbage. Her source of income
was selling garbage. However, she again testified that she does
not possess any house but stays at the platform of Vashi Railway
Station. On 9th May, 2012, her friend deceased-X came to meet
her from Ghatkopar. She also used to collect garbage at Ghatkopar.
They were old friends as both were collecting garbage at
Ghatkopar. Her evidence further reveals that she knew both the
accused, however, again she testified that she was not knowing
them previously.
27. On the day of the incident, according to survivor-Y, around
12.00 in the noon, both of them were standing near a garden in
front of Vashi Railway Station. At that time, both the accused
approached them and asked to accompany them as they would
arrange job for both of them. Both deceased-X and survivor-Y,
therefore, accompanied the accused in a rickshaw to Jui Nagar
bridge where deceased-X and survivor-Y were offered Pepsi (soft
drink). Both of them drank Pepsi. The accused thereafter took
both of them to C.B.D Belapur in another rickshaw. Thereafter, the
accused took both of them to a tunnel under the bridge. Here, both
the accused offered liquor to deceased-X and survivor-Y. They
consumed liquor and were under it's influence. Her evidence
further indicates that both of them (deceased-X and survivor-Y)
had slept over there. Thereafter, the accused again took both of
them to another bridge beneath which there was a hollow portion
(cavelet). Survivor-Y did not know as to how they were taken to
the last spot, since according to her both of them were not only
under the influence of liquor but also had slept.
28. Evidence of survivor-Y further reveals that after taking both
of them in the tunnel like place under the bridge, both the accused
had raped her and deceased-X. This witness was first raped by
accused Rahimuddin and then by the juvenile. Survivor-Y had
identified accused Rahimuddin in the Court. However, survivor-Y
again confused and testified that she did not know the name but it
was the second accused who had raped her first and then the first
accused.
29. After committing rape on both of them, both the accused
assaulted them. Accused Rahimuddin assaulted deceased-X as well
as survivor-Y by means of a knife. He had inflicted blows of knife
on her neck, stomach, legs and below her ear. She became
unconscious. The evidence further indicates that due to the assault
upon her friend in a similar manner, she too was grievously
injured, however, survivor-Y escaped from the clutches of the
accused. While running from the spot, she fell down from the
bridge and sustained head injury. Thereafter, survivor-Y did not
know as to what had happened to her friend.
30. According to her, she was taken to a Hospital at Kamothe by
the Police and, thereafter, to Sion Hospital where she was admitted
as an indoor patient. Initially, her statement was recorded in the
Hospital and subsequently another statement came to be recorded
on 22nd May, 2012 at the Police Station. On the basis of her
statement (Exhibit 21) an F.I.R came to be registered on 10th May,
2012 at 15.30 hours. It has been specifically testified by survivor-Y
that in her complaint recorded by the Police at the Hospital, she
did not name any of the accused but had given their description.
Subsequently, she was taken to Taloja Jail on 22nd May, 2012 for
identification of the accused. There were around 20 persons in the
row and she had been asked to identify if the accused were
amongst any of them. She had identified both the accused. This is
the examination-in-chief of survivor-Y.
31. From the examination-in-chief itself, it is quite apparent that
both deceased-X and survivor-Y were not coerced or forced by the
accused to accompany them in a rickshaw. It is also apparent that
both deceased-X and survivor-Y had consumed liquor at ease
without any hesitation. Rather, it is not the evidence of survivor-Y
that they were forced or compelled to consume liquor. The
evidence is also clear on the aspect that after consuming liquor,
both deceased-X and survivor-Y were under it's influence and had
slept. The fact that deceased-X and survivor-Y, who were friends,
were consuming liquor has been substantiated by P.W.9-Shridhar
Tore, Investigating Officer. According to this witness, one Shankar
Vishwanath Chavan during the interrogation had stated before him
that deceased-X and survivor-Y along with husband of deceased-X
went to Mankhurd for consuming liquor. The said Shankar
Vishwanath Chavan was working as a coolie as well as an agent for
booking railway tickets. Deceased-X used to work for him.
According to said Shankar Vishwanath Chavan when he had given
money to deceased-X for her work, she along with her husband
went to Mankhurd. The case papers of Sion Hospital of survivor-Y
also demonstrate the said fact that she had a history of
consumption of unknown drugs on the day of the incident before
the assault. No doubt, what had been stated by the said Shankar
Vishwanath Chavan to the Investigating Officer is of hearsay
nature, yet it is a relevant fact in the given set of circumstances.
32. During her cross-examination, survivor-Y admits and
buttressed the fact that that sometimes deceased-X along with her
used to consume liquor and sometimes, even husband of
deceased-X used to give them company for consuming liquor. It
was suggested in her cross that she also used to consume whitener
along with her friend, which she has denied. A suggestion that
survivor-Y along with deceased-X had indulged into prostitution
and, therefore, used to go with the customer/s on that count, has
also been denied by survivor-Y. But the suggestion cannot be said
to be without substance in view of the attending circumstances
which have been surfaced during the course of evidence of
survivor-Y. If they were earning their livelihood as rag picker, they
would not have readily accepted invitation and offer of the
accused who, according to them, were unknown and would
accompany them, consume liquor and go under the bridge in a
hollow(cavelet). Be that as it may.
33. In the cross-examination, survivor-Y admits that after her
complaint was recorded in the hospital, it's contents were not read
over to her. That being so, the complaint of survivor-Y has been
rendered otiose. She herself did not know what was written by
the Police. This goes to the very root of the persecution case. This
is a canard. The cross-examination further reveals that both
deceased-X and survivor-Y were not acquainted with the accused
before the incident. Survivor-Y had categorically admitted that the
Police had shown both the accused to her at the Police Chowky on
that day when she had identified them. It obviously means that
the identification of the accused by survivor-Y during the Test
Identification Parade conducted by P.W.7-Deepali Mahadik was
nothing but a farce. It is difficult to accept whether survivor-Y was
completely in her sense to understand as what had exactly
happened at the time of the alleged incident of rape and the
assault upon both of them in view of the fact that she was fully
under the influence of the liquor and both of them had slept. Her
clear admission as to how they were taken to the spot of the
incident itself renders her testimony quite suspicious and
unacceptable as to whether it were the accused and none other
who took them to the spot of the incident. It is not the case of the
prosecution that deceased-X and survivor-Y were not in an
inebriated state at the relevant time.
34. The most important question is as to whether the testimony
of survivor-Y who herself is an injured witness can be fully
accepted as a truthful version of the entire episode sans
corroboration, which is significant in light of the fact that it has
been held by catena of decisions that corroboration as a condition
for judicial reliance on the testimony of a prosecutrix is not a
matter of law but a guidance of prudence under given
circumstances. One should not be unmindful of the fact that from
place to place, from different life styles and behavioral complexes
as well as different set of facts, oral and circumstantial evidence
will have to be taken into account. There should not be a dead
uniformity but realistic diversity, otherwise rigidity in the form of
rule of law in this area would be introduced which could be a new
type of precedent.
35. Normally, evidence of an injured eye witness cannot be
discarded in toto, particularly when the evidence is tested in the
light of broad probabilities, it can be concluded that he or she was
a natural eye witness and had no reason to concoct a case against
the accused. Presence of injuries on the person of survivor-Y does
not guarantee of her truthfulness. Admittedly, there were several
injuries on the person of survivor-Y. The injuries on her person, at
the most, assured of her presence at the spot but they do not add
anything more. Her truthfulness has to be demonstrated
otherwise. There should not be any reason for the witness to
falsely implicate the accused persons. Merely because, she is an
injured eye witness, her evidence cannot be mechanically accepted
though her testimony holds more credence. We say so for the
reasons which are substantiated not only from the evidence of
survivor-Y herself as discussed hereinabove but also from the
medical evidence qua survivor-Y.
36. P.W.11-Dr. Vijay Waman Dhakare was attached to Sion
Hospital run by Bombay Municipal Corporation. On 9th May,
2012, he was on duty. Around 9.00 to 9.15 p.m, a Police Constable
Buckle No.2890 of C.BD Belapur Police Station brought survivor-Y
to Sion Hospital. She was conscious but sleeping. She was able to
talk little. She had given the history of sexual assault by 2 to 3
persons near Belapur and that she was given some drink before
sexual assault. This evidence of P.W.11-Dr. Vijay Dhakare and
history given by survivor-Y clearly contradicts the evidence of
P.W.9- Shekhar Tore, the Investigating Officer who had stated that
on 9th May, 2012 survivor-Y was found in an unconscious
condition by a rickshawala who informed the Police about the said
fact. The prosecution had not examined the said Rickshawala nor
Assistant Police Inspector namely Birari who is stated to have
made a station diary entry on that day and had admitted survivor-
Y in Vashi Hospital. According to P.W.9- Shridhar Tore, statement of
survivor-Y could not be recorded as she was unconscious which is
in sharp contradiction with the evidence of P.W.11-Dr. Vijay
Dhakare. It necessarily means that the Investigating Agency had
suppressed the real genesis of the crime, for, had there been a
prompt F.I.R on 9th May, 2012 itself, even deceased-X could have
been traced out who was lying underneath the bridge of C.B.D
Belapur. The prosecution could have unearthed the truth had
there been a prompt F.I.R on the basis of the statement of survivor-
Y by Assistant Police Inspector Birari and, perhaps, life of
deceased-X could have been saved by tracing her from underneath
C.B.D Belapur bridge where she was lying on 9th May, 2012 itself.
37. P.W.11-Dr. Vijay Dhakare examined survivor-Y and found
following external injuries;
"(a)Incised lacerated wound, 5 c.m at right angle on mouth
horizontal;
(b)Incised lacerated wound, 4 c.m over right upper lip;
(c)Incised lacerated wound, 4x2x2 c.m over left lower jaw;
(d)Incised lacerated wound 7x1x1 c.m over neck anterial
part;
(e)Linear abrassion 15 c.m over right and left side of
abdomen;
(f)Incised lacerated wound left upper midial thigh 2x1x0.5
c.m deep wound;
(g)Incised lacerated wound medial aspect of left thigh,
3x0.5x0.5 c.m. deep wound;
(h)Two linear abrassion over both labia majora;
(i)Incised lacerated wound over right thigh medial aspect
5x0.5x0.5 c.m
(j)Incised lacerated wound left side of mandible 3x1x1 c.m;
(k)Incised lacerated wound with linear abrasion over right
lateral aspect of thigh, 5x0.5x0.5 c.m;
(l)Incised lacerated wound over left forearm posterior
aspect;
(m)Friction abrassion over left arm;
(n)Friction abrasion over neck and manubrium sternum;
(o)Incised lacerated wound over left cheek zig-zag shape
5x0.5x0.5 c.m
(p)Friction abrassion over forehead, 2 x 2 c.m;"
38. P.W.11-Dr. Vijay Dhakare further deposed that all the injuries
were fresh. The incised lacerated wounds are probable by sharp
weapon. All the injuries collectively are sufficient to cause death.
Considering all the injuries, it was found that the patient was
assaulted and she had tried to protect herself. The injuries on
thigh and labia majora shows that she was forcibly sexually
assaulted against her will. The zig-zag injury on cheek shows that
there was forceful attack upon her and she tried to protect herself.
If the patient tries to escape from the assault, the friction abrassion
are possible. Her blood pressure was very low. It was opined by
P.W.11-Dr. Viay Dhakare that had there been no timely treatment,
she would have gone into vegetative state. He had also opined that
considering the injuries on her private part, rape by more than one
person cannot be totally ruled out. From the evidence, it can be
gathered that survivor-Y had strongly resisted the assailants and in
that process, several injuries on her person were inflicted by the
assailants.
39. Survivor-Y was an indoor patient from 9th May, 2012 to
22nd May, 2012. The treatment papers and the medical reports
are proved at Exhibit 141. Article- 8 and Article-11 i.e hacksaw
blade and a knife were shown to PW.11-Dr Vijay Dhakare. He
opined that incised lacerated wounds are possible by those
weapons. The evidence of this witness has not been shattered by
the defence in the cross-examination. However, it has been elicited
that had there been delay in bringing the patient by one or two
hours, she would have gone into coma.
40. There can be no dispute that survivor-Y had been brutally
assaulted with sharp edged weapons such as hacksaw blade and
knife. However, question is whether prosecution has brought forth
sufficient and believable evidence on record to connect the
accused with the injuries sustained by survivor-Y and also
responsible for causing homicidal death of deceased-X.
41. There is one more very vital aspect surfaced in this case.
Survivor-Y was also subjected to psychiatric examination. Ms.
Gonsalves has drawn our attention to the notes of the Psychiatrist.
Before the Psychiatrist also she was brought by Police Constable,
Buckle No.2890. The Police Constable Buckle No.2890 was a very
important witness as he was the Police Constable who had carried
survivor-Y all the way from Vashi to Sion Hospital without any
medical assistance. However, the prosecution has not examined
this important witness.
42. The reason for withholding the evidence of this witness is
best known to the prosecution. Despite such a precarious condition
of survivor-Y, without medical assistance, she was brought to Sion
Hospital by this Constable. It is not clear whether he was a male
or female constable. No evidence has been adduced that survivor-
Y was provided with an ambulance or any medical staff looking to
the seriousness of the injuries suffered by her. An adverse inference
is required to be drawn against the prosecution for not examining
Police Constable buckle No.2890.
43. After recording the history of the assault, survivor-Y gave her
history that she had depressive features along with sadness of
mood and occasional death wishes. She has also given history of
slashing her wrist multiple times in the past out of anger, but her
intention was not to end her life. The patient also claimed that
about one week back, she slashed her wrist as she had an
argument with a female over sleeping place and she wanted to
take revenge by lodging a Police complaint against her. No history
of any sleep disturbance. There is history of suicide attempt in the
past i.e about two to three years back when there was some
quarrel with her sister. Visible cuts over the neck. Grossly oriented
to time, place and person.
44. Looking to the report of the Psychiatrist coupled with the
fact that survivor-Y was under the influence of liquor at the time of
the incident, it would not be safe to accept her testimony as a
truthful version of the incident in respect of the alleged assault by
the accused.
45. P.W.2-Amir Ali Raja Bhatiya was working as a security guard
at the relevant time and was on duty from 8.00 p.m to 8.00 a.m.
According to him, on 9th May, 2012, after his duty hours, he came
home and then in the afternoon, he went to give meals to his
friend under the bridge of C.B.D Belapur. At that time, he noticed
two males and two females sitting under the bridge. One of them
was Baba (Accused-Rahimuddin) whom this witness already knew.
He was not aware of the name of the other person. Baba
(accused-Rahimuddin) had called him but he did not respond and
went for work. Thereafter, he went to his friend, gave him meals
and also told him that he had seen those four persons under the
bridge.
46. His evidence further reveals that on the next date, the Police
had been to him. They showed him photograph of a girl and also
of Babu (accused Rahimuddin). The Police asked him whether he
had seen them a day before, near the spot under the bridge. He
had, thus identified Baba (accused Rahimuddin) and the said girl
to whom he had seen under the bridge on the earlier day. He had
identified the accused Baba (Rahimuddin) in the Court to be the
same person. However, this witness could not identify the second
accused as a person along with accused Baba (Rahimuddin) on the
earlier day.
47. Interestingly, he testified that the girl to whom he had
identified was affected with polio and that she was alive while the
other girl was murdered whose photograph was not shown to this
witness. It is quite surprising as to whether this witness was really
a security guard since it has been surfaced in his cross that neither
he has been given any identity card nor there is any proof that he
was working with M.A.P Security Agency. There is neither any
muster roll nor register. Secondly, what was the reason for this
witness to go under the bridge of C.B.D Belapur in the hollow
(cavelet) portion as it is not the case that he was also residing
under the bridge. Third reason to discard his evidence is that when
the accused were arrested on 14th October, 2012 i.e five days
after the incident, how he could know that another girl was
murdered whose photograph was not shown to him. His
clairvoyance is surprising.
48. One more reason is that why the Police would directly
approach him and show him the photographs of the accused and
deceased-X and survivor-Y when it is nobody's case that this
witness had himself approached the Police? It is not clear which
friend of this witness was residing under the bridge. Had it been
the intention of the accused to commit murder of deceased-X or
injuring survivor-Y, why he would call this witness? It is surprising
as to how the Police came to know that he could be the witness on
the point of last seen together. He could not identify the second
accused in the Court. It is nobody's case that survivor-Y had polio
nor there is any medical evidence. It is doubtful whether he was
in hand in gloves with the accused, for, history given by survivor-Y
to P.W.11- Dr. Vijay Dhakare was that she was sexually assaulted by
two or three persons. The evidence of this witness, therefore,
needs to be discarded altogether as he is a got up witness by the
Investigating Officer.
49. P.W.3-Dr. Bhushan Vilasrao Jain (Exhibit 28) had conducted
autopsy on the dead body of the deceased-X on 11th May, 2012.
On external examination, he noticed following injuries;
"(a)Contusion over left forehead 5x5 c.m reddish;
(b)Aberated contusion over left maxillary region, 6x3 c.m
reddish;
(c)contused lacerated wound over chin inferior surface
2x0.5 c.m bone deep, reddish;
(d)A semicircular linear incised wound seen over left chest
below breast 14x0.2 c.m skin deep, reddish;
(e)A semicircular linear incised wound seen over right chest
medial to breast 24.0.2 c.m skin deep, reddish;
(f)A linear incised wound seen over left arm 5x0.2 c.m skin
deep, reddish;
(g)Two parallel linear incised wounds seen over left thigh
anteromedially of size 18.0.2 c.m and 15x0.2 c..m, skin
deep, reddish, situated one below another;
(h)Two parallel linear incised wounds seen over right thigh
upper past anteromedially of size 20x0.2 c.m and 16 x 0.2
c.m skin deep, reddish situated one below another;"
50. On internal examination, he noticed internal injury over
head-haemorrhage under scalp. External injury No.1 was corelated
to internal injury mentioned in column No.19. He had also
noticed other internal injury over occipital region on both sides.
Brain showed contusions over left frontal, occipital and right
occipital lobes of 2 x 2 c.m, 3 x 3 c.m and 3 x 2 c.m respectively,
reddish in colour.
51. All injuries were antemortem in nature and are sufficient to
cause death in ordinary course of nature. The probable weapon
used for head injury was hard and blunt object. He had preserved
viscera of the deceased and also obtained samples of blood and
nail clippings and various samples for relative examination.
According to him, the probable time of death was within 18 to 24
hours prior to keeping the body in cold storage. According to this
witness, the cause of death of deceased-X was head injury. The
postmortem notes are proved at Exhibit 29.
52. It is surprising to note that learned Counsel appearing for
the accused was absent when the evidence of P.W.3-Dr. Bhushan
Jain was recorded on 29th April, 2014. The learned Additional
Sessions Judge had asked accused No.1 and 2 to cross-examine the
Doctor. Obviously, they declined. The learned Additional Sessions
Judge ought to have given an opportunity to the learned Counsel
for the accused to cross-examine PW.3-Bhushan Jain whose
evidence is vital in nature qua postmortem of deceased-X. A note
is put by the Additional Sessions Judge on 29th April, 2014 viz:
"taken before me and signed by me in the
presence of the accused to whom the deposition
was explained and opportunity given to cross
examine the witness".
53. No opportunity was given by the learned Additional Sessions
Judge to the Counsel for the accused to cross-examine this witness.
No sane man would expect that such uneducated and rustic
accused would cross-examine a Doctor who had conducted
autopsy over the corpse of deceased-X. On this count itself, the
trial gets vitiated. This is ridiculous. However, from the evidence of
this witness, it has been established that the deceased-X was
subjected to brutal assault by the assailants which had resulted
into her death due to the head injury. However, there is no
evidence by the medical officer as regards rape upon the deceased-
X. No hard and blunt object - a probable weapon to cause head
injury has been recovered or produced by the prosecution. Since
the identity of the deceased-X has not been disputed during the
course of trial by the defence, it cannot be said, at this stage, that
the prosecution had not established her identity. No reason to
disbelieve the evidence of survivor-Y in that regard, as no
suggestion to that effect had been given to any of the witnesses.
54. On the aspect of identification of the accused, evidence of
P.W.7-Deepali Mahadik, who was Special Executive Officer,
indicates that she received a letter for conducting a Test
Identification Parade in respect of the accused in connection with
C.R.No.73 of 2012 registered with C.B.D Police Station. She was
asked to conduct Test Identification Parade in respect of the arrest
of John Anthony D'Souza and Sandeep Samadhan Shirsat. It has
not been mentioned in the correspondence that Test Identification
Parade was in respect of Baba (accused Rahimuddin) but in
respect of John Anthony D'Souza. She issued a letter to Taloja
Central Prison and a Test Identification Parade was conducted on
7th July, 2012 at Taloja Central Prison.
55. Survivor-Y was produced before her at 10.50 am. Her
evidence reveals that she asked survivor-Y whether photographs of
the accused were shown to her, to which she answered in the
negative. Thereafter, along with survivor-Y two panchas reached
Taloja prison at 11.55 a.m. The witness had instructed
Superintendent of Jail to arrange for six dummies for each of the
accused. Thereafter, Test Identification Parade was held. Two rows
including six dummies and the suspects were arranged. Survivor-Y
was asked to identify the suspect. According to this witness,
survivor-Y had identified both the accused.
56. However, the evidence of this witness is rebutted in the
cross when she admits that during the Test Identification Parade
accused by name Rahimuddin Shaikh was not present. This is a
vital blow to the case. She also admits that she did not ask
survivor-Y whether Police had described the accused before
conducting the Test Identification Parade. As already stated
hereinabove, survivor-Y had already admitted that the accused
were shown to her at the Police Station and, therefore, Test
Identification Parade conducted by this witness wherein even the
accused was not present, is of no consequence and was a futile
attempt on the part of the prosecution to confirm identity of the
accused-Rahimuddin Shaikh.
57. It creates a doubt whether John Anthony D'Souza and
Rahimudddin Shaikh are two different persons or one and the
same person. The prosecution has not clarified this anomaly at all
which gives rise to a reasonable doubt in the mind as regards the
identity of this accused. Survivor-Y had testified that there were 20
persons during the Test Identification Parade. However, according
to this witness, there were two rows of six persons each. Both are
at variance on this vital aspect.
58. So far as the evidence of P.W8-Sameer Shaikh is concerned,
he testified that on 9th May, 2012 he was sleeping in the staff
room at Sathe Nagar Zopadpatti when John Anthnoy D'Souza alias
Babu and juvenile-in-conflict-with-law came in the staff room at
1.00 a.m under the influence of liquor and were shouting. He,
therefore, got up and asked them as to why they were shouting.
He testified that both of them said that they had killed one girl.
They were under the influence of liquor. This witness did not pay
attention since they were under the influence of liquor. In the next
morning, John Anthony D'souza alias Babu and juvenile-inconflict-
with-law did not come for work. This witness was also
working at Triveni Caterers where these two accused were also
working. On the next day, he read in the newspaper that a girl
was raped and murdered. On 12th May, 2012, the Police had
inquired with him and, therefore, he narrated what he heard from
the accused on 9th May, 2012 at 1.00 a.m.
59. Interestingly, it cannot be said to be an extra judicial
confession, as observed by the learned trial Judge. The accused
did not confess before this witness as to whom, when and how
they had killed. There is nothing on record to show that they had
also confessed/said about the rape. Every utterance would not be
extra judicial confession. He also appears to be a got up witness,
as in the cross, he admits that he did not ask the accused as to
which girl they had killed and even did not ask them on the next
day as to why they did not attend the work. He even did not
remember the newspaper where he read the news about the
murder of a girl. Interestingly, during the evidence of this witness
accused were not produced from Jail on 1st July, 2016 and on 2nd
July, 2016 when the witness was cross-examined. It appears that
they were not produced even through video conferencing.
60. Evidence of P.W.9-Shekhar Tore, the Investigating Officer
indicates that on 10th May, 2012 beneath C.B.D Belapur Bridge, in
a hollow portion (cavelet) one watchman by name Savansingh
Taulsingh Bhatera was residing. When he arrived in the morning
after his night duty, he noticed a woman lying dead with injuries
and was in a naked condition. He informed the Police. P.W.9-
Shridhar Tore along with the staff members reached the spot.
With the help of fire brigade, dead body of the deceased-X was
taken out. It is surprising as to why the prosecution has not made
serious attempt to summon and examine Savansingh Bhatera who
could have been the best witness to depose about the fact of
noticing dead body of deceased-X? Several important aspects
could have been unearthed, had he been examined by the
prosecution. There is indeed something amiss.
61. It is quite probable that, perhaps, Savansingh Bhatera could
be acquainted either with the accused or with deceased-X for the
reason that as per the prosecution story, the accused had taken
survivor-Y and deceased-X in the said hollow portion (cavelet).
Entire incident of rape and murder occurred therein. If the said
hollow portion (cavelet) was the place of residence of Savansingh
Bhatera, then definitely there is something vital which appears to
have been suppressed by the prosecution, otherwise, the moment
survivor-Y was taken to the hospital, she could have also informed
about the deceased-X lying in the hollow portion (cavelet).
However, as already stated, she was in such an inebriated
condition and in view of the fact that she had stated before P.W.11-
Dr. Vijay Dhakare that they were assaulted by two or three
persons, the role of Savansingh Bhatera assumes significance as to
whether he could be the third person? Under such circumstances,
evidence of watchman Savansingh Bhatera could have been quite
important. Adverse inference is required to be drawn against the
prosecution again, for not procuring the presence of not only
watchman Savansingh Bhatera but also Shankar Chavan who had
on 9th May, 2012 said to have given money to deceased-X and her
husband and thereafter they went to consume liquor.
62. The Investigating Officer had also not produced the extract
of station diary to substantiate the fact that information of finding
the dead body of deceased-X was given by watchman Savansingh
Bhatera. Normally, in case of rape sometimes there is a delay in
lodging the report because of our social norms. The prosecutrix or
the parents of the prosecutrix apprehend a social stigma in
reporting the matter to the Police, immediately, which is not the
matter in the case at hand. P.W.9- Shridhar Tore, the Investigating
Officer admits that the F.I.R was recorded as per the information
given by survivor-Y, however, he could not assign any reason as to
why her signature was not obtained over the F.I.R. This also
creates a serious doubt about the authenticity and genuineness of
the prosecution case and it also goes to the root of the case. Even
he is unable to tell at what time the F.I.R came to be recorded. He
is unable to testify as to how many times survivor-Y was called at
the Police Station. The Investigating Officer had, in fact,
suppressed material facts and evidence from the Court for the
reasons best known to him. The investigation had been carried out
in a most casual and perfunctory manner.
63. In a criminal trial, the burden of proving the guilt of the
accused beyond all reasonable doubts always rests upon the
prosecution and on it's failure it cannot fall back upon the
evidence, if any, adduced by the accused in support of his defence.
It is always for the prosecution to bring home the guilt of the
accused. In an accusatory system, such as that prevailing in our
country, it is for the prosecution to prove beyond reasonable doubt
that the accused committed the offence; it is not for the Court to
speculate as to how the crime has been committed.
64. It is a well settled principle of law that corroboration is not a
sine qua non for a conviction in a rape case. In the Indian setting,
refusal to act on the testimony of a victim of sexual assault in the
absence of corroboration as a rule, is adding insult to injury.
However, in the given set of facts, circumstances and evidence,
complicity of the present accused itself is shrouded with several
doubts and suspicions that it would not be safe to rely upon the
sole testimony of survivor-Y.
65. P.W.4-Satyavan Dengale was the witness on memorandum
panchanama under section 27 of the Indian Evidence Act. The sum
and substance of his evidence is that he was called by the Police at
C.B.D Belapur Police Station on 16th May, 2012 along with other
pancha Yogesh. Accused Rahimuddin was there. It is again
doubtful whether Rahimuddin and John Anthony D'souza and
Babu alias Baba is one and the same person or some one else. Be
that as it may. Said Rahimuddin made a statement in the presence
of this witness that he would discover the clothes which were on
his person at the time of the incident and weapon used i.e knife.
His memorandum statement was recorded as per his say which is
at Exhibit 57. His evidence further indicates that in pursuance of
his memorandum, Police party along with this witness and the
accused proceeded in a private vehicle to Annabhau Sathe Nagar,
Ambedkar Chawl, in a room. There are no details as regards room
number or whether the said room belongs to the accused himself.
It is not his evidence that the accused led the Police team and they
followed him. According to this witness, accused took out clothes
i.e one full shirt of pink colour having stains of blood, chocolate
coloured full pant having stains of blood and one knife having
blood on it. The Police had seized those articles by drawing
panchanama under his signature which is at Exhibit 58. During
the course of trial, he identified the knife-Article-8, pink coloured
shirt-Article 9 and chocolate coloured full pant-Article 10.
66. In a similar manner, on the same day, in the evening
pursuant to the statement made by the juvenile-in-conflict-withlaw,
similar procedure was followed and even juvenile-in-conflictwith-
law too had taken out a black coloured full shirt stained with
blood and black coloured full pant having stains of blood and one
hacksaw blade from the drawer of the table. How can it be so
similar that both the accused would go to the same chawl and the
same room and took out similar articles, albeit, there is knife and
hacksaw blade from the drawer of the table?
67. In the cross-examination, P.W.4-Satyawan Dengale admits
that first the Police went to the house of one Naresh Hargovinddas
Parmar. The prosecution has not clarified as to who was this
person and why the Police had been to his house? Whether
accused Rahimuddin first led them to his house and the articles
were seized from the said house of Naresh Parmar or there is
something else. The witness expressed his inability to say whether
the Police had recorded the statement of Naresh Parmar, however,
he clarified that the Police did ask him about the clothes and
weapons but he refused to tell.
68. This also creates a strong suspicion as to how the Police had
asked said Naresh Parmar about the weapons and clothes alleged
to have been discovered in connection with this crime. This is also
an unsolved mystery. The object of section 27 is to admit evidence
which is relevant to the matter under inquiry, namely, the guilt of
the accused and not to admit the evidence which is not relevant to
that matter. The essential requirements for the application of
section 27 are (i)the person giving information must be an accused
and (ii)he must be also in Police custody. If the Police had first
went to the house of Naresh Parmar and asked about the articles
then it is unfathomable as to how the articles were discovered
from a room which was shown by accused Rahimuddin. It is not
clear whether it was the house of Naresh Parmar or Rahimudddin.
If the articles were in possession of Naresh Parmar, then what was
his connection with the crime in question.
69. The discovery of a material object is of no relevancy to the
question whether accused is guilty of the offence charged against
him, unless, it is connected with the offence. It is, therefore, the
connection of the thing discovered which renders its discovery a
relevant fact. The connection between the offence and the thing
discovered may be established by evidence other than the
statement leading to the discovery but that does not exclude proof
of the connection by the statement itself. Evidence of P.W.4-
Satyavan Dengle, therefore, would not be of any help to the
prosecution.
70. P.W.5-Smita Sawant was the witness on inquest panchanama
which was drawn on 10th May, 2012 under C.B.D Belapur overbridge
on Panvel-Mumbai High way by the Police. The sum and
substance of her evidence is that it was a naked body of woman
having injuries under left eye, cut injury below both breasts, and
also cut injuries upon thighs near private part. She also noticed
vomit spewed and a yellow substances spread over her face and
body. Panchanama is drawn which is at Exhibit 63.
71. P.W.6- Ramji Ramnarayan Yadav is the witness in whose
presence personal search of the accused was carried out on 14th
May, 2012 at 11.00 a.m at the crime branch of Police at Sector 19,
Nerul. Accused Rahimuddin and the juvenile-in-conflict-with-law
were present. After their search, they were arrested in the presence
of this witness. Why the Investigating Agency had not taken the
accused for their medical examination to ascertain whether there
were any bruises, injuries etc on their person in light of the fact
that survivor-Y had strongly resisted the assailants at the relevant
time. How the accused could escape from getting themselves
injured or hurt in such a fierce fight? This aspect also is of vital
importance. No evidence in that regard has been adduced.
Witnesses on spot panchanama have not been examined by the
prosecution, as, they were untraceable. So, no independent
witness has been examined to prove the spot panchanama?
72. It is pertinent to note that the chemical analyzer's reports do
not at all support the prosecution case. P.W.10-Rama S. Jadhav is
the Assistant Chemical Analyzer in Forensic Science Library, Kalina,
Santacruz, Mumbai. He had proved C.A report Exhibit 93. His
evidence reveals that C.A report in M.L.C No.2234 of 2012 dated
22nd November, 2012 (Exhibit 88) was signed by him. The
contents are correct. According to this witness, pubic hair of
survivor-Y were examined by him, however, no semen was
detected on it. In respect of second report in MLC No.2235 of
2012 (Exhibit 89) which was nail clipping of survivor-Y, no blood
was detected. In the vaginal swab of survivor-Y in MLC No.2336
of 2012, (Exhibit 90) wherein labial swab and high vaginal swab
was taken, no semen was detected. Blood group of survivor-Y
was "B". It would be apposite to extract the articles examined by
this witness and result of analysis given by him;
"(i)Kurta (cut)
(ii)Piece of clothes;
(iii)Brassiere wrapped in paper, together labelled as
A-3,
(iv)Odhani wrapped in paper labelled as A-4,
(v)Liquid in plastic bottle wrapped in paper labelled as
A-5,
(vi)Metal bangles wrapped in paper labelled as A-6,
(vii)Earth wrapped in paper labelled as A-7,
(viii)Earth wrapped in paper labelled as A-8,
(ix)Cotton swab wrapped in paper labelled as A-9,
(x)Suri wrapped in paper labelled as A-24,
(xi)Full shirt wrapped in paper labelled as A-25,
(xii)Full pant wrapped in paper labelled as A-26,
(xiii)Hacksaw blade wrapped in paper labelled as A-27;
(xiv)Full shirt wrapped in paper labelled as A-28,
(xv)Full pant wrapped in paper labelled as A-29.
Result of Analysis
(i)Exh 1 is stained with blood mostly on front portion,
(ii)Exh.2 is stained with blood mostly at one side,
(iii)Exh.3 is stained with blood at places,
(iv)Exh 8 is mixed with blood,
(v)Exh. 9 is stained with blood,
(vi)Exh. 10 and 13 are stained with blood on blade;
(vii)Exh.11 is stained with blood mostly on front lower
portion,
(viii)Exh. 12 is stained with blood mostly on front upper
portion,
(ix)Exh. 14 is stained with blood mostly on back side,
(x)Exh. 15 has one blood stain of about 1 c.m in diameter on
left leg middle portion,
No blood is detected on Exh. 4 to 7,
No semen is detected on Exh. 1 to 15 ,
Blood stains detected on Exhs. 1, 10 to 15 are referred to
DNA division for DNA analysis;
Species origin and blood grouping results are as follows-
Exh. No. Species Origin ABO grouping
2 Human Inconclusive
3 Human Inconclusive
4 Human Inconclusive
5 Human Inconclusive"
Thus, the C.A report also does not corroborate the
prosecution case and it's evidence.
73. Our attention has been drawn by Ms. Gonsalvez to certain
anomalies and irregularities committed by the learned Additional
Sessions Judge while conducting the trial of such a sensitive case.
It is a matter of record that after the prosecution closed it's
evidence, statement of the present accused as well as juvenile
came to be recorded under section 313 of of the Code of Criminal
Procedure by the learned Additional Sessions Judge on 24th
October, 2016. Subsequently, the prosecution sought to examine
P.W.11-Dr. Vijay Dhakare who had examined survivor-Y at Sion
Hospital on 9th May, 2012. We have already referred the evidence
of this witness in the preceding paras.
74. During the examination of P.W.11-Dr. Vijay Dhakare (on 9th
January, 2017), the accused as well as juvenile-in-conflict-with-law
were not produced before the Court and, therefore, when their
statements under section 313 of the Cr.P.C came to be recorded on
13th January, 2017 and very first question was asked whether they
heard and understood the evidence of P.W.11-Dr. Vijay Dhakare,
they answered that they were not produced at that time. Though
a Counsel namely Mr. Devghare appointed by the District Legal
Services Authority had represented the accused, there is no
material on record to ascertain whether the evidence of the
medical officer was explained to the accused by the Court. It
would be essential to extract paragraph 27 of chapter (iii) of the
Criminal Manual which reads thus;
Medical Witnesses
"27 (i) Section 291 of the Code of Criminal
Procedure 1973, requires that the deposition of
a medical witness should be not only taken, but
also attested in the presence of the accused by
the Magistrate, in order to render it admissible
in other proceedings. An attestation in the
following form should, therefore, always be
appended to such depositions, namely;
"Taken before me and singed by me in the
presence of the accused, to whom the
deposition was explained and opportunity
given to cross-examine"
Date: (Signature of Magistrate)
(2) Care should always be taken to record
medical evidence fully and intelligently on all
the salient points so that a second examination
by another Court may not be necessary. The
evidence should be fully interpreted to the
accused, if necessary, and he should be allowed
an opportunity to cross-examine the medical
witness".
75. The learned Additional Sessions Judge committed a grave
error in not fully interpreting evidence to the accused, though it
appears that the Counsel representing the accused had crossexamined
the witness. Paragraph 27 of Chapter III of the Criminal
Manual specifically contemplates that the evidence of the medical
witness should be recorded in the presence of the accused to
whom the deposition should be explained. The answer to the first
question asked to the accused as above would indicate that they
were unaware of what P.W.11-Dr. Vijay Dhakare had testified qua
survivor-Y as regards her injury. There is even no evidence that
Counsel representing the accused had explained the evidence of
P.W.11-Dr. Vijay Dhakare, later on.
76. Our attention has been drawn by Ms. Gonsalvez to a
representation dated 3rd September, 2016 (Exhibit 125) made by
the juvenile-in-conflict-with-law to the Sessions Court, Thane from
Taloja Central Jail prison, Kharghar, New Mumbai in Marathi. In
short, the juvenile-in-conflict-with-law had written in a very
sincere and humble manner requesting the Court that he had been
falsely implicated in the instant case. Evidence of the witnesses
had not been recorded in his presence. He was unaware as to what
had happened in the case. He, therefore, requested for furnishing
the translated copies of the depositions of survivor-Y, Doctor, other
witnesses and panchas in Marathi language.
77. Astonishingly, the learned Additional Sessions Judge who
was then dealing with this matter did not pass any order or issued
any directions for furnishing the copies, in clear violation of
section 277 (a) to (c) of the Code of Criminal Procedure. Section
277 reads thus;
"277. Language of record of evidence.
In every case where evidence is taken down under section
275 or section 276 ,-
(a) if the witness gives evidence in the language of the
Court, it shall be taken down in that language;
(b) if he gives evidence in any other language, it may, if
practicable, be taken down in that language, and if it is not
practicable to do so, a true translation of the evidence in the
language of the Court shall be prepared as the examination
of the witness proceeds, signed by the Magistrate or
presiding Judge, and shall form part of the record;
(c) where under clause (b) evidence is taken down in
language either than the language of the Court, a true
translation thereof in the language of the Court shall be
prepared as soon as practicable, signed by the Magistrate or
presiding Judge, and shall form part of the record:
Provided that when under clause (b) evidence is taken
down in English and a translation thereof in the language
of the Court is not required by any of the parties, the Court
may dispense with such translation".
78. The learned Additional Sessions Judge by accepting the
pursis (Exhibit 19) recorded the evidence of almost all the
witnesses in English language. The said pursis dated 15th January,
2014 reads thus;
"That, the above mentioned matter is on today's
board for hearing. Accused has no any objection if
recorded deposition in only English language.
Hence, this pursis"
The said pursis indicates that the accused had no objection
in recording the deposition in English language when, in fact, it
seems that the accused were illiterate rustic persons who are not
expected to know the procedural law. Secondly, the pursis was
signed by one Advocate Kokate. It was not a joint pursis given by
Counsel Mr. Kokate for accused No.1 and 2 and Additional Public
Prosecutor. Rather, Additional Public Prosecutor appears to have
put his signature beneath the signature of Advocate Kokate. The
learned Additional Sessions Judge had simply endorsed 'filed'.
79. As a matter of fact, the learned Additional Sessions Judge
appears to have fallen into grave error in not recording the
evidence of prosecution witnesses in Marathi which is the
language of the District Courts in the State of Maharashtra. In our
considered view, due to such a lapse on the part of the learned
Additional Sessions Judge, a failure of justice has been occasioned
and the proceedings stand vitiated.
80. In that regard, it would be apposite to make a mention of
Gazette Notification of Government of Maharashtra dated 21st
July, 1998 which reads thus;
"GENERAL ADMINISTRATION DEPARTMENT "
Mantralaaya, Mumbai 400 032, dated the 21st July, 1998
CODE OF CRIMINAL PROCEDURE, 1973.
No. OFL. 1098/CR-50/98/20-B--- In exercise of the powers
conferred by section 272 of the Code of Criminal Procedure,
1973 (II of 1974), in its application to the State of
Maharashtra; and supersession of all previous notifications
issued in this behalf, the Government of Maharashtra, hereby
with effect from the 21st day of July, 1998, determines
Marathi language to be the language of all Criminal Courts
in the State other than the High Court except for the
purposes specified in the Schedule hereto.
Schedule
"(1) Writs, warrants, summonses, notices and
other processes which are required to be sent
for service or execution to other States, and
correspondence connected therewith;
(2) Post mortem notes and evidence of
medical and expert witnesses;
(3) Paper Books in Appeals and Revisions to
the District Court and the High Court;
(4) Proceedings (both judicial and
administrative) that are required to be
submitted to the High Court;
(5) Periodical returns and statements to the
High Court or statistical burcaus;
(6) All account books and returns and
statements pertaining to accounts, budget
estimates and correspondence pertaining to
service matters;
(7) Departmental examinations;
(8) Matters relating to Departmental
enquiries including reports and correspondence
thereon with the High Court and Government;
(9) Correspondence with the High Court and
Government".
81. The Juvenile-in-conflict-with-law had again requested the
Sessions Court, Thane by his communication dated 24th October,
2016 (Exhibit 133) to furnish copies of notes of evidence in
Marathi language as the trial had not been conducted in his
presence and he did not know as to what had happened. Again,
no order came to be passed on this application also. Even though
juvenile-in-conflict-with-law is not before this Court, nevertheless,
the procedure adopted by the learned Additional Sessions Judge is
unknown to the settled principles as to how the evidence of
witness has to be recorded and the importance of the statement of
the accused under section 313 of the Criminal Procedure Code.
82. Ms. Gonsalvez vehemently argued that not recording the
evidence in the language of the Court is, in fact, a miscarriage of
justice. According to her, it was shocking that the learned
Additional Sessions Judge did not pass any order on two
representations made by the juvenile-in-conflict-with-law from the
Jail.
83. It would be apposite to refer a judgment of the Hon'ble
Court in case of Reena Hazarika Vs. State of Assam, AIR 2018
Supreme Court 5361 on the point of section 313 of the Cr. PC.
Paragraphs 16 and 17 of the judgment are extracted below;
"16. Section 313, Cr. PC, cannot be seen
simply as a part of audi alteram partem. It
confers a valuable right upon an accused to
establish his innocence and can well be
considered beyond a statutory right as a
constitutional right to a fair trial under Article 21
of the Constitution, even if it is not to be
considered as a piece of substantive evidence, not
being on oath under Section 313 (2), Cr. PC. The
importance of this right has been considered time
and again by this court, but it yet remains to be
applied in practice as we shall see presently in
the discussion to follow. If the accused takes a
defence after the prosecution evidence is closed,
under section 313 (1) (b) Cr P.C the Court is duty
bound under Section 313 (4) Cr. PC to consider
the same. The mere use of the word 'may' cannot
be held to confer a discretionary power on the
court to consider or not to consider such defence,
since it constitutes a valuable right of an accused
for access to justice, and the likelihood of the
prejudice that may be caused thereby. Whether
the defence is acceptable or not and whether it is
compatible or incompatible with the evidence
available is an entirely different matter. If there
has been no consideration at all of the defence
taken under Section 313 Cr. PC., in the given
facts of a case, the conviction may well stand
vitiated. To our mind, a solemn duty is cast on
the court in dispensation of justice to adequately
consider the defence of the accused taken under
Section 313 Cr. P.C and to either accept or reject
the same for reasons specified in writing".
17. Unfortunately neither Trial Court nor the
High Court considered it necessary to take notice
of, much less discuss or observe with regard to
the aforesaid defence by the appellant under
Section 313 Cr. P.C to either accept or reject it.
The defence taken cannot be said to be
irrelevant, illogical or fanciful in the entirety of
the facts and the nature of other evidence
available as discussed hereinabefore. The
complete non-consideration thereof has clearly
caused prejudice to the appellant. Unlike the
prosecution, the accused is not required to
establish the defence beyond all reasonable
doubt. The accused has only to raise doubts on a
preponderance of probability as observed in Hate
Singh Bhagat Singh v State of Madhya Bharat,
AIR 1953 SC 468 observing as follows:-
"26. We have examined the evidence at
length in this case, not because it is our
desire to depart from our usual practice
of declining to the assess, the evidence
in an appeal here, but because there has
been in this case a departure from the
rule that when an accused person but
for the word a reasonable defence
which is likely to be true,..... then the
burden on the other side becomes all
the heavier because a reasonable and
probable story likely to be true friend
pitted against AV and vacillating case is
bound to raise a reasonable doubts of
which the accused must get the
benefit...."
A similar view is expressed in M. Abbas
v State of Kerala, (2001) 10 SCC 103 as
follows:-
"10.... On the other hand, the
explanation given by the appellant both
during the cross-examination of
prosecution witnesses and in his own
statement recorded under Section 313
CrPC is quite plausible. Where an
accused sets up a defence or offers an
explanation, it is well-settled that he is
not required to prove his defence
beyond a reasonable doubt but only by
preponderance of probabilities...."
84. Taking into consideration the totality of the circumstances in
the case at hand as well as failure on the part of the trial Court in
not promptly furnishing translated copies of English deposition to
juvenile-in-conflict-with-law may vitiate the trial and it cannot be
said to be a fair and impartial trial, especially when capital
punishment is sought to be inflicted upon the accused.
85. Ms. Gonsalvez would argue that there was no real and
effective representation of the accused by competent lawyer in a
case where the death penalty has been inflicted upon the convicts.
Our attention has been drawn to the record of the trial Court by
which it appears that the Counsel have been changed from time to
time. It would be apposite to extract observations of the Hon'ble
Supreme Court in the case of Mohd. Hussain @ Zulfikar Ali V.
State (Govt of NCT of Delhi) 2012 (2) Supreme Court Cases 584
on the aspect of fair and impartial trial as well as right to crossexamine.
The judgment also speaks about the denial of right of
providing aid of a Counsel especially in case of conviction and
capital punishment under sections 302, 307, 121 and Section 121-
A of the Indian Penal Code. The observations read as under;
"Every person has a right to a fair trial in the spirit
of the right to life and personal liberty. The object
and purpose of providing competent legal aid to
undefended and unrepresented persons are to see
that accused gets free and fair, just and reasonable
trial of charges. The right of cross-examination is
included in the right of accused in a criminal case,
to confront the witness against him not only on
facts but also to discredit the witness by showing
that his testimony-in-chief was untrue and
unbiased (sic, may be biased). Herein, recording of
Order sheet of Trial Judge is not accurate. Initially,
during committal proceedings, accused Appellant
was represented by a Counsel provided by State.
Thereafter, one other Counsel employed by State
assisted Appellant before Sessions Judge for few
days but he stopped to attend proceedings, that
too, at fag end of trial, another Counsel was
appointed. For counsels' conduct, Court observed
that, 'less said the better'. The Trial was conducted
in a very casual manner in a capital punishment
case. The appellant did not have aid of counsel in
real sense, so to be represented in substantial and
meaningful manner".
More or less, similar was the situation in the instant case.
86. In the case of Ashish Batham Vs. State of Madhya Pradesh,
AIR 2002 Supreme Court, 3206 in paragraph 89 of the judgment,
it has been held by the Hon'ble Supreme Court which reads thus;
"Realities or Truth apart, the fundamental and
basic presumption in the administration of
criminal law and justice delivery system is the
innocence of the alleged accused and till the
charges are proved beyond reasonable doubt
on the basis of clear, cogent, credible or
unimpeachable evidence, the question of
indicting or punishing an accused does not
arise, merely carried away by heinous nature
of the crime or the gruesome manner in which
it was found to have been committed. Mere
suspicion, however, strong or probable it may
be is not effective substitute for the legal proof
required to substantiate the charge of
commission of a crime and grave the charge is
greater should be the standard of proof
required. Courts dealing with criminal cases at
least should constantly remember that there is
a long mental distance between 'may be true'
and 'must be true' and this basic and golden
rule only helps to maintain the vital distinction
between conjectures and sure conclusions to
be arrived at on the touch stone of a
dispassionate judicial scrutiny based upon a
complete and comprehensive appreciation of
all features of the case as well as quality and
credibility of the evidence brought on record".
More serious crime more strict proof would be
requisite."
87. This ratio is squarely applicable to the case in hand, as
having appreciated the entire evidence on record as well as
material discrepancies, lacunae and blatant illegalities would
definitely indicate that the prosecution has utterly failed in
connecting the dots and bringing home the guilt of the accused.
Merely because the crime is heinous and brutal, it would not be
just to get carried away sans any legal proof required to
substantiate the charge of murder and rape. The standard of proof
is not in consonance with the gravity of the offences. This can, at
the most, be a case of strong suspicious and no more. From the
evidence, it is also apparent that the murder was neither perplanned
nor premeditated. The evidence is neither clear, cogent
nor credible. There is absolutely no question of awarding death
sentence to the accused, rather, it is the case wherein the accused
must be given a benefit of doubt, nay, it would be a travesty of
justice.
88. Here also the trial was conducted in a casual manner
without ascertaining whether the legal aid provided to the accused
was competent and whether the trial was just and fair in a capital
punishment case. The quality and credibility of the evidence
adduced is not even upto the mark.
89. The learned A.P.P has placed reliance on several judgments
of the Hon'ble Supreme Court on death penalty. To name a few
are;
(a) Bachan Singh Vs State of Punjab, AIR 1980 Supreme
Court 898;
(b) Jaroop Singh Vs. State of Punjab, (2012) 11 Supreme
Court Cases 768;
(c) Bodhisatwa Woman Gautam Vs. Subara Chalraborty,
(1996) 1 Supreme Court Cases 490.
90. Since we are of the considered view that the prosecution has
miserably failed to bring home the guilt of the accused and,
therefore, there is no question of considering whether the case
falls under the rarest of rare category wherein the question of
award of capital punishment or otherwise would arise?
91. Ms. Deshmukh, the learned A.P.P has placed reliance upon
judgment of the Hon'ble Supreme Court in case of Sheikh Sintha
Madhar @ Jaffer @ Sintha Vs. State represented by Inspector of
Police with Shahjahan Vs. State represented by Inspector of Police,
(2016) 11 Supreme Court Cases 265 on the point of Test
Identification Parade. The law is no more res integra that the
whole purpose of Test Identification Parade is to ensure that
investigation is going on a right track and it is merely a
corroborative evidence. Actual identification must be done in the
court i.e the substantive evidence. Paragraph 16 of the said
judgment reads thus;
"16. The next question is whether the Test
Identification Parades were vitiated on
account of delay or for holding those TIPs
jointly, or on account of the identity of the
accused having been already revealed before
the TIP could be conducted. It is clear from
the evidence that there is no inordinate delay
in conducting the TIP. As and when the
accused were arrested, within reasonable
time they were produced for the TIP. Also,
there is no invariable rule that two accused
persons cannot be made part of the same TIP.
Joint TIP would thus, in no manner, affect the
validity of the TIP. The purpose of a TIP is to
ensure that the investigation is going on the
right track and it is merely a corroborative
evidence. The actual identification must be
done in the Court and that is the substantive
evidence. If the accused is already known to
the witness, the TIP does not hold much
value and it is the identification in the Court
which is of utmost importance. PW1
identified all the seven accused appellants in
the Court as well as in the TIP".
92. We have already discussed in the preceding paras as to
how the Test Identification Parade was nothing but a farce
since survivor-Y had already seen accused at the Police station
and even as per the evidence of P.W.7-Deepali Mahadik,
accused Rahimuddin was not present while conducting the Test
Identification Parade. This witness even did not ask any
question to the identifying witness whether Police had
described the accused before conducting the Test Identification
Parade. We are afraid, ratio laid down by the Hon'ble Supreme
Court in the case of Sheikh Sintha Madhar @ Jaffer @ Sintha
(supra) would not be of any help to the prosecution.
93. The impugned judgment of conviction and sentence of
death awarded by the learned Additional Sessions Judge is a
result of incorrect appreciation of evidence which is nothing but
reproduction of the evidence adduced by the prosecution
witnesses without application of mind. The judgment is full of
surmises and conjectures. There is no marshalling of the
evidence. The entire approach of the trial Court in dealing with
the evidence was patently illegal and the conclusions arrived at
by it are wholly untenable. The findings are palpably wrong and
manifestly erroneous in such a serious case wherein death
sentence has been awarded. It is needless to reiterate several
findings arrived at by the learned trial Court which are contrary
to the evidence on record. However, it would not be out of place
to refer to paragraphs 112 to 114 of the impugned judgment
wherein the learned trial Judge discussed the scope of section 106
of the Indian Evidence Act which are extracted as under:
"112. Section 106 of the Evidence Act reads as under:-
"When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him".
113. In the present case the accused have put in a
defence of denial. No evidence of whatsoever nature has
been led by the accused to point out that the deceased
victim and injured victim were not in their company on
the fateful day. They have not examined any witness to
establish that the victims were not in a company of the
accused and they were present elsewhere. The accused
have not given any explanation why P.W.2-Amir deposed
against accused 'Baba' that he was knowing him and on
the fateful day he had seen Baba and other three below
the CBD bridge at about 12.00 noon.
114. The accused have not given any explanation why
P.W.8-Samir Shaikh, deposed against them. Whether there
was any enmity with P.W.2 or P.W.8 is not explained by the
accused. They have not explained how their clothes and
weapons found in their possession stained with human
blood. No explanation also has been given by the accused
in their statement under section 313 of Cr. PC. The
accused, therefore, have miserably failed in discharging
the burden which was cast on them and that would be an
additional circumstance which will have to be taken into
consideration against the accused".
94. The law is no more res integra on the applicability of section
106 of the Indian Evidence Act. This section does not cast any
burden on an accused person to prove that no crime was committed
by proving facts especially within his knowledge; nor does it warrant
conclusion that if anything is unexplained which the Court thinks the
accused can explain, he ought, therefore, to be found guilty. The
initial burden is always upon the prosecution and is not shifted onto
the accused by reason of this section. The learned trial Court fell into
a grave error in misinterpreting the scope of section 106 of the
Indian Evidence Act.
95. Evidence of the prosecution witnesses is recorded by three
Additional Sessions Judges;
Sr.
No.
Prosecution Witnesses Date Exhibit No. Judge
1. P.W.1- Survivor-Y 15.01.2014 Exh.20 First
2. P.W.2- Amir Ali Raja
Bhatiya
26.03.2014 Exh.26 First
3. P.W.3-Dr. Bhushan
Vilasrao Jain
29.04.2014 Exh.28 First
4. P.W.4-Satyavan Maruti
Dengle
26.08.2015 Exh.56 First
5. P.W.5-Smita Ashok
Sawant
05.09.2015 Exh.62 First
6. P.W.6-Ramji
Ramnarayan Yadav
18.11.2015 Exh.69 Second
7. P.W.7-Deepali Dinkar
Mahadik
16.02.2016
02.03.2016
Exh.98 Second
8. P.W.8-Sameer Ismile
Shaikh
01.07.2016
and
02.07.2016
Exh.110 Third
9. P.W.9-Shekhar Asharam
Tore
13.07.2016
&
26.07.2016
Exh.112 Third
10. P.W.10-Rama Shripati
Jadhav
06.10.2016 Exh.129 Third
11. P.W.11-Dr. Vijay Waman
Dhakare
09.01.2017 Exh.140 Third
96. As such, recording of evidence is in blatant violation of
settled norms and rules as discussed hereinabove. Even at the time
of recording evidence of PW-8 Sameer Shaikh on 1st July, 2016 and
2nd July, 2016 and PW-11 Dr. Vijay Dhakare on 9th January, 2017,
the accused were not produced in Court.
97. Chapter XXIII deals with evidence in inquiries and trials and
mode of taking and recording evidence.
Section 272 and 273 of the Criminal Procedure Code read
thus;
"272. Language of Courts.
The State Government may determine what shall
be, for purposes of this Code, the language of each
Court within the State other than the High Court.
OBJECTS AND REASONS
(1) "Clauses 279 to 290 (Secs. 272 to 283) these
clauses correspond to Sections 353 to 364, 343 and 365
and deal with taking and recording of evidence.
Provision is being made that in sessions trial,
the evidence should ordinarily be recorded in the form
of questions and answers The special provision in the
case of Presidency Magistrates contained in Section 362
is being omitted."- SOR, Gaz of Ind.,10-12-1970, Pt. II,
Sec. 2, Extra P. 1309 (1322).
(2) Also see under Sec. 274 infra.
273. Evidence to be taken in presence of accused.
Except as otherwise expressly provided all evidence
taken in the course of the trial or other proceeding shall
be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence
of his pleader.
a[Provided that where the evidence of a woman
below the age of eighteen years who is alleged to have
been subjected to rape or any other sexual offence, is to
be recorded, the court may take appropriate measures to
ensure that such woman is not confronted by the
accused while at the same time ensuring the right of
cross-examination of the accused]
Explanation.- In this section, "accused" includes a
person in relation to whom any proceedings under
Chapter IIII has been commenced under this Code."
[a]Inserted by Criminal Law (Amendment) Act (13 of
2013), S20. (3-2-2014)"
98. It is not clear from the record as to whether the Counsel
representing the accused had sought exemption from personal
appearance of the accused at the time of recording the evidence of
prosecution witnesses and whether the learned Sessions Judge had
dispensed with the personal attendance.
99. A fortiori of the entire discussion of facts, circumstances
and evidence is that the prosecution has failed to bring home guilt
of the accused beyond all reasonable doubts. Consequently,
reference of confirmation made by the learned Additional Sessions
Judge needs to be answered in the negative.
100. Now, to the order.
:O R D E R:
[a] Reference of confirmation of the death sentence is hereby
dismissed;
[b] The judgment and order of conviction and sentence of
death awarded to the accused Rahimuddin Mohfuz Shaikh @
John Anthony D'Souza @ Babu @ Baba by the Additional
Sessions Judge, Thane on 11th May, 2017 in Sessions Case
No.599 of 2012 is quashed and set aside by extending him a
benefit of doubt.
[c] The accused is acquitted of the offences punishable
under section 376 (2) (g), 302 and 326 of the Indian Penal Code
in view of section 368 (c) of the Criminal Procedure Code;
[d] Fine amount, if paid, be refunded to the accused;
[e] The accused be released forthwith, if not required in any
other case.
[PRITHVIRAJ K. CHAVAN, J.] [SMT. SADHANA S. JADHAV, J.]
No comments:
Post a Comment