- (1.) Death sentence awarded by learned Sessions Judge, Satara having been affirmed in appeal and in the reference made under Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Code') by a Division Bench of the Bombay High Court this appeal has been filed. Appellant was convicted for offences punishable under Sections 363, 376, 302 and 201 of the Indian Penal Code, 1860 (in short the 'IPC').
(2.) Two young girls who had not even seen ten summers in life were the victims of the sexual assault and animal lust of the accused appellant. They were not only raped but were murdered by the accused appellant. This is not the first occasion when the appellant has been convicted for rape of minor girls. Earlier in Sessions Case No.145 of 1990, the appellant was convicted by Learned IIIrd Additional Sessions Judge, Thane by judgment dated 12th June, 1989 for kidnapping a minor girl and committing rape on her. Strangely in that case the trial court had sentenced him to imprisonment for two years in each count. Thereafter accused was again convicted in Sessions Case No.162 of 1989 for having raped a minor girl of less than nine years on 28.7.1989. He was convicted by learned IIIrd Additional Sessions Judge, Satara and sentenced to ten years rigorous imprisonment. He was released after completion of said sentence and thereafter continued his degraded acts. Two girls; one was aged about five years and the other about ten years were raped which formed the subject matter of consideration in this appeal.
(3.) Prosecution version as unfolded during trial is as follows: The family of the complainant Jaysing Dinkar Jadhav (P.W.10) lived at Gulamb in the locality of homeless people. He is the brother of the grandfather of deceased Neelam and Gauri. The complainant has one brother named Vinayak. Ramdas Vinayak Jadhav (P.W.13) is the son of Vinayak. He and his family members lived jointly at Gulumb at the time of the incident. Deceased Gauri was the daughter of Ramdas Jadhav. At the relevant time, the complainant and other son of Vinayak i.e. Chandrakant were living at Khandala. Neelam is the daughter of Chandrakant but she was staying at Gulumb for the purpose of education. She was studying in Ist standard, whereas, Gauri was studying in 4th standard. They were all residing in Beghar Vasti i.e. area of homeless people at Gulumb. Accused Mohan Anna Chavan was also residing alongwith his wife Manda Chavan (P.W.7) and daughter Reshma (P.W.8) in the said locality of homeless people at Gulumb. His house was next to the house of Ramdas Jadhav and Tanaji Jadhav. Tanaji Jadhav (P.W.5} was the cousin brother of both Neelam and Gauri. He was also residing in Beghar vasti. On the night intervening in between 12.12.1999 to 13.12.1999 at about 2.a.m. Tanaji (P.W.5) had accompanied his wife for answering nature's call. At that time, the accused arrived at Gulumb from Bombay. He asked Tanaji to go home and told Tanaji that he will wait there. Thereupon, there was a quarrel between the two. Then accused left from there. On the next day i.e. on 14.12.1999 at about 1.30 p.m. there was quarrel between the accused and his wife Manda (P.W. 7). At that time Tahaji had peeped into the house and thereafter there was a quarrel between the accused and Tanaji. There was a scuffle between the two. At that time, the accused told Tanaji that he would settle the matter in the evening. On the same day in the evening at about 6.00 p.m. Reshma (P.W.8) and accused had gone to the grocery shop of Sunil (P.W. 6) for purchase of grocery articles, Reshma as noted above is the daughter of the accused. Similarly, at the same time Neelam and Gauri were also sent to the grocery shop for purchase of dry coconut, by their family members. The girls met the accused and Reshma and Gauri asked him to give sweets (Khau) to them. The accused said that he did not have change and the accused asked Gauri and Neelam to accompany him. So saying, he took both the girls with him. He thereafter committed rape on both the girls and murdered them. He threw the dead body of Neelam in the well which is situated in the field of the father of Sakhrarn Bhiku Yadav (PW11). He concealed the dead body of Gauri in a 'Kalkache Bet' after strangulating her. The accused thereafter arrived at village Gulumb on 14.12.1999 in the morning and at that time, the villagers including the prosecution witness Ramdas Jadhav (P.W. 13), Tanaji Jadhav (P.W. 5) Sakharam Yadav (PW11) and Rajendra Sakhpal (PW12) had caught hold of the accused and tied him to a pillar of a water-tank in the locality of Homeless people, as they suspected that he would run away, because on interrogation, the accused told them to search in the hilly area of Chandak. The said information was given to police on telephone. Some of the villagers had gone in search of both the girls in the hilly area but the girls could not be found and ultimately, the accused made an extra judicial confession that he had murdered Neelam and thrown the dead body of Neelam into a well. Meanwhile, the police had arrived. The accused led the police to the well and the dead-body of Neelam was found floating in the water of the well and it was taken out. Thereafter, the inquest panchnama (Exhibit-15) was prepared in presence of panchas by PSI Deshpande (PW.15). He had also prepared the panchnama of the well (Exhibit-34). The dead-body of Neelam was forwarded to the Medical Officer, for the purpose of post-mortem examination. The accused was taken to the police station as panchnama of his arrest and seizure of blood stained clothes which were on his person at the time of arrest was prepared. He was interrogated in the presence of' panch witnesses including panch witness (PW1), Mohammed Rafik Sayyed Mulla. At about 2.00 p.m accused stated that he had concealed the dead body of Gauri near Kalkache-Bet near Chauyndi stream and he was ready to point out the same and he also stated that he would show the spots where he had molested the two girls. Accordingly this information was reduced into writing in the form of memorandum (Exh.31) and then the accused led the police party and panch witnesses and the accused had showed the places where he had committed rape on Neelam and Gauri. At the spot where he committed rape on Neelam, the earth was found disturbed and the earth was found bloodstained, pieces of green bangles and half burnt Bidis, were also found on the spot, which were duly seized by the Police. At the spot where he committed rape on Gauri, the earth and some leaves of hybrid plant were found stained with blood. Thereafter, the accused led them to one Kalkache-Bet and showed the dead body of Gauri which was concealed in the "Kalkache-bet" i.e. a place where bamboo trees and bushes had grown thickly together. Accordingly the discovery panchnama (Exh.32) was prepared and inquest panchnama of the dead body of Gauri was prepared as per panchnama (Exhibit-16). Ligature marks were seen on the neck of Gauri which were noted in the inquest panchnama. Thereafter, the dead body of Gauri was forwarded to the medical officer for the purpose of post mortem examination. After the arrest the accused was sent for medical examination. And his nail clippings and blood sample was obtained and that was sent to the Chemical Analyser. On 25.12.1999, the accused was again interrogated in presence of the panch witnesses including Shivaji Nalawada (P.W.3) and the accused had furnished information that he had concealed the frocks of both the girls in the bushes near Chaundi stream and he was ready to point out the same. This information was reduced into writing in the form of memorandum (Exh. 37). Pursuant to the said information, two frocks came to be recovered at the instance of the accused. After the investigation was over the charge sheet came to be filed. 15 witnesses were examined to further the prosecution version. This was a case based on circumstantial evidence. Prosecution relied on the following circumstances to fasten the guilt on the accused appellant: "1. Last seen. 2. Motive 3. Seizure of blood stained clothes which were on the person of the accused at the time of arrest. 4. C.A. report which shows that shirt and pant of the accused were stained with blood Group A which is blood group of both the deceased. 5. Blood in the nail clippings of the accused was of 'A' group which is the blood group of both the deceased. 6. Recovery of dead body of Gauri at the instance of the accused. 7. Accused pointing out the places where rape was committed on Neelam and Gauri where the earth was found stained with blood of "A" group and other incriminating articles were seized. 8. Extra-judicial confession to PW 11. 9. Recovery of frock of both the deceased girls at the instance of the accused. 10. Accused pointing out the well wherein he had thrown Neelam. 11. False explanation by accused." Trial court considered all the circumstances to be a complete chain to unerringly pointing at the guilt of the accused appellant. Accordingly, the conviction was recorded. Appellant was awarded death sentence for the offence punishable under Section 302 IPC while custodial sentences were imposed for the offences punishable under Sections 363, 376 and 201 IPC. Appellant questioned correctness of the judgment before the High Court and as noted above a reference was made by the trial court in view of the death sentence imposed. The High Court found that all the circumstances except the alleged confession to have been established. After analyzing the evidence the High Court found the evidence to be cogent and credible and affirmed the death sentence looking into the ghastly acts committed by the appellant. In support of the appeal learned counsel for the appellant submitted that the case being one which rest on circumstantial evidence, a case for conviction is not made out. Alternatively it is submitted that death sentence was not the proper sentence. Learned counsel for the respondent on the other hand supported the judgment of the trial court and the High Court and submitted that this was a case belonging to the rarest of rare category and death sentence was the appropriate sentence.;