# DATTATRAYA @ DATTA AMBO ROKADE v. THE STATE OF MAHARASHTRA

- **Citation:** [2019] 11 S.C.R. 295
- **Court:** Supreme Court of India
- **Decided:** 2019-02-21
- **Case number:** Criminal Appeal Nos. 1110-1111 of 2015
- **Bench:** N. V. Ramana, Deepak Gupta, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dattatraya-datta-ambo-rokade-v-the-state-of-maharashtra-33043
- **Pages:** 46

## Headnote

Penal Code, 1860: ss. 302, 376(2)(f), 377, 363, 364, 367
and 201 r/w ss. 3,4,5 (i) (l) and (m) of the Protection of Children
from Sexual Offences Act, 2012 - Rape and murder of minor child
- Conviction by trial court - Death sentence - High Court confirmed
the conviction and sentence - Appeal to Supreme Court - Held:
In view of the forensic reports along with extra-judicial confession
made by the accused, conviction upheld - However, there is no
material to show that the intention of the accused was to kill the
victim - There is also no evidence to show any diabolic planning
by the accused to commit the crime or that the murder was premeditated - Therefore, the case does not fall in the category of
rarest of rare cases - The accused was also not defended effectively
before the courts below - The accused neither sought nor was given
the opportunity to place on record mitigating circumstances - Trial
court imposed the extreme penalty of death sentence without
considering as to whether there was no alternative to death sentence
or that in absence of death sentence, the accused would be threat
to society or whether the accused could be reformed - The accused
has been denied an effective and meaningful hearing on the question
of sentence u/s. 235(2) Cr.P.C.- Therefore death sentence is
commuted to sentence of life imprisonment - Considering the
heinous, revolting, abhorrent and despicable nature of the crime,
accused is directed to undergo imprisonment for life, till his natural
death without any remission of sentence - Sentence/Sentencing -
Death sentence - Code of Criminal Procedure, 1973 - s. 235(2).
 [2019] 11 S.C.R. 295
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Code of Criminal Procedure, 1973:
s. 235(2) - Scope of - Held: Provision u/s. 235(2) is not a
mere formality and should be obeyed in letter and spirit - It is
obligatory on the part of the trial Judge to hear the accused on the
question of sentence and deal with it - For effective hearing u/s.
235(2) the suggestion that the court intends to impose death penalty
should specifically be made to the accused, so as to enable the
accused to make effective representation against death sentence,
by placing mitigating circumstances before the Court - Even if such
issues are not raised on behalf of accused, the court is obliged on
its own to elicit facts relevant to the question of existence of
miltigating circumstances - Sentence/Sentencing.
Sentence/Sentencing:
Life imprisonment - Length of incarceration - Determination
of - Held: It is open to the Court to prescribe the length of
incarceration, especially in cases where death sentence has been
replaced by life imprisonment.
Life imprisonment - Length of incarceration - Held: Life
imprisonment means imprisonment for entire life.
Allowing the appeals, the Court
HELD : 1. Even though, there is nothing in the evidence
of any of the witnesses, except the evidence of PW-12 and PW18 and the weak evidence of the PW Nos. 4 and 5 purported to
be corroborated by PW-10, to prove the accused-appellant guilty
of the offences alleged, the forensic reports along with the extrajudicial confession made by the accused-appellant to his wife PW18, clearly establishes the guilt of the accused-appellant. The
examination of the reports of the Directorate of Forensic
Laboratories, being Ex. No. 22 to 25 and in particular the
examination report in Ex.25 indicates that DNA profile of the
blood detected on the plastic bag and the clothes and those
obtained from the nails of the victim are identical and are from
one and the same source of female origin. The DNA profile of
semen detected on the underwear (Bermudas), the bedsheet,
vaginal swab and anal swab of the victim are identical and from
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DATTATRAYA @ DATTA AMBO ROKADE v. THE STATE OF
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one and the same source of male origin. The DNA analysis
establishes beyond reasonable doubt that the victim was raped
by the accused-app

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DATTATRAYA @ DATTA AMBO ROKADE
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1110-1111 of 2015)
FEBRUARY 21, 2019
[N. V. RAMANA, DEEPAK GUPTA AND
INDIRA BANERJEE, JJ.]
Penal Code, 1860: ss. 302, 376(2)(f), 377, 363, 364, 367
and 201 r/w ss. 3,4,5 (i) (l) and (m) of the Protection of Children
from Sexual Offences Act, 2012 - Rape and murder of minor child
- Conviction by trial court - Death sentence - High Court confirmed
the conviction and sentence - Appeal to Supreme Court - Held:
In view of the forensic reports along with extra-judicial confession
made by the accused, conviction upheld - However, there is no
material to show that the intention of the accused was to kill the
victim - There is also no evidence to show any diabolic planning
by the accused to commit the crime or that the murder was premeditated - Therefore, the case does not fall in the category of
rarest of rare cases - The accused was also not defended effectively
before the courts below - The accused neither sought nor was given
the opportunity to place on record mitigating circumstances - Trial
court imposed the extreme penalty of death sentence without
considering as to whether there was no alternative to death sentence
or that in absence of death sentence, the accused would be threat
to society or whether the accused could be reformed - The accused
has been denied an effective and meaningful hearing on the question
of sentence u/s. 235(2) Cr.P.C.- Therefore death sentence is
commuted to sentence of life imprisonment - Considering the
heinous, revolting, abhorrent and despicable nature of the crime,
accused is directed to undergo imprisonment for life, till his natural
death without any remission of sentence - Sentence/Sentencing -
Death sentence - Code of Criminal Procedure, 1973 - s. 235(2).
 [2019] 11 S.C.R. 295
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Code of Criminal Procedure, 1973:
s. 235(2) - Scope of - Held: Provision u/s. 235(2) is not a
mere formality and should be obeyed in letter and spirit - It is
obligatory on the part of the trial Judge to hear the accused on the
question of sentence and deal with it - For effective hearing u/s.
235(2) the suggestion that the court intends to impose death penalty
should specifically be made to the accused, so as to enable the
accused to make effective representation against death sentence,
by placing mitigating circumstances before the Court - Even if such
issues are not raised on behalf of accused, the court is obliged on
its own to elicit facts relevant to the question of existence of
miltigating circumstances - Sentence/Sentencing.
Sentence/Sentencing:
Life imprisonment - Length of incarceration - Determination
of - Held: It is open to the Court to prescribe the length of
incarceration, especially in cases where death sentence has been
replaced by life imprisonment.
Life imprisonment - Length of incarceration - Held: Life
imprisonment means imprisonment for entire life.
Allowing the appeals, the Court
HELD : 1. Even though, there is nothing in the evidence
of any of the witnesses, except the evidence of PW-12 and PW18 and the weak evidence of the PW Nos. 4 and 5 purported to
be corroborated by PW-10, to prove the accused-appellant guilty
of the offences alleged, the forensic reports along with the extrajudicial confession made by the accused-appellant to his wife PW18, clearly establishes the guilt of the accused-appellant. The
examination of the reports of the Directorate of Forensic
Laboratories, being Ex. No. 22 to 25 and in particular the
examination report in Ex.25 indicates that DNA profile of the
blood detected on the plastic bag and the clothes and those
obtained from the nails of the victim are identical and are from
one and the same source of female origin. The DNA profile of
semen detected on the underwear (Bermudas), the bedsheet,
vaginal swab and anal swab of the victim are identical and from
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DATTATRAYA @ DATTA AMBO ROKADE v. THE STATE OF
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one and the same source of male origin. The DNA analysis
establishes beyond reasonable doubt that the victim was raped
by the accused-appellant. Therefore, the conviction of the
accused-appellant for the offences under Sections 302, 376(2)(f),
377 of the IPC read with Sections 3, 4 and 5 of the POCSO is
confirmed. [Paras 85, 86 and 96] [322-B-E; 324-G]
2.1 In the present case, there is no evidence at all of any
diabolic planning to commit the crime though the crime was
undoubtedly cruel and heinous. The circumstances in which the
victim entered the tenement of the accused-appellant are not
known. There is no evidence to show that the accused-appellant
took the victim to his tenement. Though unlikely, she might
even have gone to his tenement on her own. [Para 122] [336-E]
2.2 As a mature man, over fifty years of age, the accusedappellant should have known that the rape of a five year old child
by an adult was dangerous and could lead to such injuries, as was
in all probability likely to cause death. The death of the deceased
victim was not caused under any provocation, not to speak of
sudden provocation. No such defence has been taken by the
accused-appellant. Nor is it anybody's case that the death was
caused in legitimate exercise in good faith of any right of the
accused-appellant, whether of private defence or otherwise. The
totality of the injuries support the finding of the Trial Court and
the First Appellate Court that the accused-appellant murdered
the deceased victim. Though the act of the accused squarely
amounts to rape and murder, there is not a scrap of material to
show that the intention of the accused-appellant was to kill the
minor child. [Paras 125, 126 and 127] [337-B-D]
2.3 The doctor who had prepared the post mortem report
opined that the cause of death was asphyxia due to smothering,
associated with head injuries and sexual assault. He deposed
that all the 5 injuries were possible by repeated sexual acts and
forceful penetration. He opined that all the injuries were sufficient
to cause instant death in the ordinary course. However, in view
of the evidence of the post mortem report it would be appropriate
to modify the sentence by reducing the same to imprisonment
for life. [Paras 128 and 130] [337-E, H]
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2.4 There can be no doubt that rape and murder of a 5 years
old girl shocks the conscience. It is barbaric. There is, however,
no evidence to support the finding that the murder was premeditated. The petitioner did not carry any weapon. The possibility
that the accused-appellant might not have realized that his act
could lead to death cannot altogether be ruled out. Moreover,
the Trial Court has apparently not considered the question of
whether the crime is the rarest of rare crimes. [Para 131]
[338-A-B]
2.5 The present case does not fall in the category of the
rarest of rare cases. Moreover, the accused-appellant was not
defended effectively. The lawyer representing the accusedappellant only pleaded not guilty, emphasizing that there was no
eye witness to the incident and sought leniency only on the ground
of the age of the accused-appellant which was 53 years. The
accused-appellant neither sought nor was given the opportunity
to file any affidavit placing on record relevant mitigating
circumstances. The legal assistance availed by the accusedappellant was patently not satisfactory and he was not accompanied
by a social worker. No attempt was made to place on record
mitigating circumstances. No argument was advanced to the effect
that there was no similar case against the accused-appellant.
[Paras 136 and 137] [338-G-H; 339-A-B]
2.6 Considering the nature of the crime against a five year
old child, the Trial Court imposed the extreme penalty of death
without deciding the question of whether there was no alternative
to imposing death sentence on the accused-appellant. There is
no finding that in the absence of death sentence, the accusedappellant would continue to be a threat to the society. The
question of whether the accused-appellant could be reformed,
had not at all been considered. [Para 138] [339-C]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 -
followed.
Rajesh Kumar v. State (through Govt. of NCT of Delhi)
(2011) 13 SCC 706 Machhi Singh & Others v. State of
Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413 ;
Santosh Kumar Satishbhushan Bariyar v. State of
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Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ;
Ajay Pandit and Another v. State of Maharashtra (2012)
8 SCC 43 : [2012] 10 SCR 70 ; Mohinder Singh v.
State of Punjab (2013) 3 SCC 294 : [2013] 3 SCR 90 ;
Panchhi and Others v. State of U.P. (1998) 7 SCC
177 : [1998] 1 Suppl. SCR 40 ; Bantu v. State of M.P.
(2001) 9 SCC 615 ; Amit v. State of Maharashtra (2003)
8 SCC 93 : [2003] 2 Suppl. SCR 285 ; Rahul v. State of
Maharashtra (2005) 10 SCC 322 ; Surendra Pal
Shivbalakpal v. State of Gujarat (2005) 3 SCC 127 :
[2004] 4 Suppl. SCR 464 ; Mukesh and Another v. State
(NCT of Delhi) and Others (2017) 3 SCC 717 ; Mohd.
Manan @ Abdul Mannan v. State of Bihar
2019 AIR 2934 Haru Ghosh v. State of West Bengal
(2009) 15 SCC 551 : [2009] 13 SCR 847 ; Lehna v.
State of Haryana (2002) 3 SCC 76 : [2002] 1 SCR
377 ; Rajendra Prahladrao Wasnik v. State of
Maharashtra Review Petition (Crl.) No. 306-307 of
2013 - relied on.
3.1 Section 235(2) CrPC is not a mere formality. It is
obligatory on the part of the trial Judge to hear the accused on
the question of sentence and deal with it. The mandate of Section
235(2) CrPC had to be obeyed in letter and spirit. [Paras 103
and 105] [327-E; 329-D]
Santa Singh v. State of Punjab (1976) 4 SCC 190 :
[1977] 1 SCR 229 ; Dagdu and Others v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636
- relied on.
3.2 Irrespective of whether these issues were raised on
behalf of the accused, the Court is obliged on its own to elicit
facts relevant to the question of existence of mitigating
circumstances. The Court made no attempt to elicit any facts
relevant to the sentence. For effective hearing under Section
235(2) Cr.P.C., the suggestion that the court intends to impose
death penalty should specifically be made to the accused, to enable
the accused to make an effective representation against death
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sentence, by placing mitigating circumstances before the Court.
This has not been done in the present case. The Trial Court
made no attempt to elicit relevant facts, nor did the Trial Court
give any opportunity to the petitioner to file an affidavit placing
on record mitigating factors. As such the petitioner has been
denied an effective and meaningful hearing on the question of
sentence under Section 235(2) of the Cr.P.C. The death sentence
imposed on the petitioner is liable to be commuted to
life imprisonment on this ground. [Paras 139, 140 and 141]
[339-D-G]
4. It is open to the Court to prescribe the length of
incarceration. This is especially true in cases where death
sentence has been replaced by the life imprisonment. Even
though life imprisonment means imprisonment for entire life,
convicts are often granted reprieve and/or remission of sentence
after imprisonment of not less than 14 years. Considering the
heinous, revolting, abhorrent and despicable nature of the crime
committed by the appellant, the appellant should undergo
imprisonment for life, till his natural death and no remission of
sentence be granted to him. [Paras 143 and 144] [340-A-C]
Mulla and Another v. State of U.P. (2010) 3 SCC 508 :
[2010] 2 SCR 633 - relied on.
Case Law Reference
(1980) 2 SCC 684
followed.
Para 99
(2011) 13 SCC 706
relied on.
Para 100
[1977] 1 SCR 229
relied on.
Para 103
[1977] 3 SCR 636
relied on.
Para 104
[1983] 3 SCR 413
relied on.
Para 106
[2009] 9 SCR 90
relied on.
Para 107
[2012] 10 SCR 70
relied on.
Para 108
[2013] 3 SCR 90
relied on.
Para 109
[1998] 1 Suppl. SCR 40
relied on.
Para 110
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(2001) 9 SCC 615
relied on.
Para 111
[2003] 2 Suppl. SCR 285
relied on.
Para 112
(2005) 10 SCC 322
relied on.
Para 113
[2004] 4 Suppl. SCR 464
relied on.
Para 114
(2017) 3 SCC 717
relied on.
Para 115
R.P. (Crl) No.306-307 of 2013 relied on.
Para 118
2019 AIR 2934
relied on.
Para 118
[2009] 13 SCR 847
relied on.
Para 119
[2002] 1 SCR 377
relied on.
Para 121
[2010] 2 SCR 633
relied on.
Para 143
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1110-1111 of 2015.
From the Judgment and Order dated 21/24/25.03.2015 of the High
Court of Judicature at Bombay in Criminal Appeal No. 1202 of 2013 and
Criminal Confirmation Case No. 6 of 2013.
Gaurav Aggarwal, Anshu Raj Singh, Himanshu Agarwal,
Ms. Pyoli, Advs. for the Appellant.
Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. for
the Respondent.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. These appeals are against the final judgment and order dated
21/24/25-3-2014 of the High Court of Judicature at Bombay in Criminal
Appeal No. 1202 of 2013/Criminal Confirmation Case No.6 of 2013
whereby the High Court has confirmed the conviction of the appellant
under Sections 302, 376(2)(f), 377, 363, 364, 367 and 201 of the Indian
Penal Code, as also under Sections 3, 4, 5(i) (l) and (m) of the Protection
of Children from Sexual Offences Act, 2012 (hereinafter referred to as
'POCSO') and, inter alia, affirmed the sentence of death imposed on
the appellant.
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2. The facts giving rise to these appeals are abhorrent. The
Complainant and his wife being the second Prosecution Witness (PW)
resided at Room No.3 in the ground floor of Om Sai building, near the
Shivsena Office in Koparigaon, with their son aged 10 years and two
daughters aged 7 years and 5 years respectively.
3. It is the case of the complainant that he and his wife (PW 2),
used to go to work, leaving the three children at home. On 22.1.2013,
PW 2 had to go to her paternal home to visit her father. When PW 2
returned home around 2.00 p.m. she found that her youngest daughter,
being the victim, was not at home. Assuming that the victim might be
playing somewhere nearby, PW 2 left for work at around 2.15 p.m. At
around 4.30 to 5.00 p.m. PW 2 received a call on her mobile phone from
one Avaghade Mama, informing her that the victim was not at home.
PW 2 thereafter returned home, and started searching for the victim.
She contacted the complainant as also her own parents on mobile.
4. Thereafter the complainant, PW 2, her mother and brother all
started looking for the victim in Koparigaon, Vashi and Sanpada areas.
As the victim could not be found, a missing report was lodged with the
APMC Police Station.
5. When the complainant and his wife (PW 2) reached home at
around 2.30 a.m. after frantic efforts to trace the victim, they found the
victim lying nude and still in front of the door of their tenement, with no
movement.
6. The complainant contacted the police from his mobile and told
the police that his daughter (the victim) had been found lying still, without
any movement. The complainant and PW 2 took the victim to the Navi
Mumbai Municipal Corporation Hospital, where the Medical Officer
examined the victim and declared her 'brought dead'.
7. In the hospital the complainant noticed injuries on the body of
victim. There was redness on both shoulders and both thighs of the
victim, and laceration in the vagina and anus of the victim. Accompanied
by the Inspector of APMC Police Station, who had come to the hospital
for investigation, the complainant went to the APMC Police Station and
lodged a First Information Report, on the basis of which Crime No.120/
2013 was registered by the APMC Police Station.
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8. An inquest of the body of the victim was conducted and
photographs of the body were taken. There were injuries. The vagina
and the anus of the deceased victim was lacerated and blood was oozing
out. On 23.1.2013, Dr. Bhushan Jain, assisted by Dr. Prerna Thakur,
conducted post mortem examination of the deceased victim. Dr. Bhushan
Jain also noticed injuries on the private part, anus, below the eye lid and
above the upper lip. He collected the blood of the deceased victim for
DNA mapping and grouping and also collected her vaginal and anal
swab for detection of sperms. The samples were kept for chemical
analysis.
9. Dr. Bhushan Jain who prepared the post mortem report (Exhibit
48) opined that the cause of death of the victim was asphyxia due to
smothering, associated with head injuries and sexual assault. Dr. Bhusan
Jain deposed that all the five injuries were possible by repeated sexual
acts and forceful penetration. He opined that all these injuries were
sufficient to cause instant death in the ordinary course.
10. In the meanwhile, on 23.1.2013 investigation commenced. PW
26 was the Investigating Officer. on 23.1.2013 at about 7.15 p.m.,
Panchnama (Ex.30) of the place where the deceased victim was found,
was recorded in the presence of one Parashuram Mahadu Thakur, who
deposed as the tenth prosecution witness (PW 10). A plastic bag of
Surf Excel with plastic and two pieces of CDs were found on the spot.
These were separately seized and packed and sealed under Panchnama
(Ex.30).
11. The accused-appellant along with his wife Asha (PW 18) two
sons Rupesh and Mahendra (PW 19), two daughters, Manisha and Nisha
(PW 20) and a grandson Omkar used to reside in Room No. 8 of the
same building, adjacent to the tenement of the complainant.
12. The accused-appellant had been unemployed for four years,
and sat idle at home. Omkar the grandson of the accused-appellant used
to be at school from 12.00 noon to 6.00 p.m. All other family members
of the accused-appellant used to leave for work during the day. The
accused-appellant used to stay at home alone.
13. It is the case of the prosecution that on 22.01.2013, in the
afternoon, the accused-appellant took the victim to his house, raped her,
had unnatural sexual intercourse with her causing her head injury and
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smothering her, as a result of which she died. On the same night at
around 2.00 a.m., the accused-appellant had gone outside the house and
on 23.01.2013, the accused-appellant went to the house of his brother at
Kamothe without informing his wife, Asha (PW 18). On 24.01.2013 at
about 07.30 p.m., PW 18 i.e., wife of the accused-appellant found the
accused-appellant was in tension and asked him to go to their family
doctor.
14. On 24.01.2013 at about 7.30/8.00 p.m., PW 7 being the Family
Doctor, examined the accused-appellant and found that the accusedappellant was tensed and his blood pressure was high. The Head
Constable, Gejage, (PW 15) who had been making inquiries from the
residents of Om Sai Building, had left his mobile number with the residents
of the building including Mahendra (PW 19), the son of the accusedappellant so that they could contact him if they got any information with
regard to the incident.
15. It was the case of the prosecution that the accused-appellant
used to force himself on his wife and have sexual intercourse with her
without her consent two to four times a week. Furthermore, in 2004,
when the accused-appellant and his family members were residing at
Village Dudhanoli, the accused-appellant had outraged the modesty of a
lady, Suvarna (PW 6) while she was attending to the call of nature. It
is alleged that the accused-appellant was assaulted by villagers because
of the aforesaid incident. The accused-appellant and his entire family,
therefore, had to leave Village Dudhanoli forever.
16. The prosecution has alleged that considering the antecedents
of the accused-appellant and his conduct after the incident, PW 19
suspected that the accused-appellant might be the culprit who had
committed the ghastly crime.
17. On 24.01.2013, PW 19 contacted the Head Constable, Gejage
(PW 15) and told him that he suspected the accused-appellant of being
guilty. Thereafter, on the night of 24.01.2013, the said Head Constable,
Gejage, (PW 15) and Senior Police Inspector, Kambale took the accusedappellant to the office of Crime Branch for inquiry. On 25.01.2013, the
accused-appellant was arrested and the clothes on his person, i.e, blue
coloured full pants, Bermuda pants and a yellow shirt were seized under
panchnama, which is marked Ex. (Exhibit) 28. On 25.01.2013, the
Investigating Officer, Police Inspector, Bhong, being the 26th Prosecution
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Witness (PW 26), went to the house of the accused-appellant along
with a team from Forensic Science Laboratory and searched the house
in the presence of panchas, the Forensic Laboratory team and daughter
of the accused-appellant, Nisha (PW 20).
18. Three cushion covers from the Sofa, a cloth for cleaning the
floor and a sari used as a bed-sheet, all stained with blood, were seized.
On 25.01.2013 itself, the accused-appellant was examined by Dr. Tambe
(PW 8), who found that the accused-appellant was in sound physical
and mental condition. On 26.01.2013, the accused-appellant made a
statement in the presence of Panchas on the basis of which which blood
stained white coloured plastic gunny bag, blood stained orange coloured
shirt and black pants of the deceased were recovered from the debris
near Om Sai Building.
19. The complainant and his wife being the parents of the victim,
identified her clothes. It is alleged that on 27.01.2013, Vinod and Sanjay
being the 4th and 5th Prosecution Witnesses approached the Investigating
Officer, Bhong (PW 26) and told him that on 22.01.2013, they had a
meeting in the office of 10th Prosecution Witness (PW 10), Parshuram,
which was situated in a building about 15 feet away from Om Sai Building.
These witnesses told the police that after they came out of the office at
about 4.30 p.m they were standing under a parking shed and talking. At
that time, they saw a short old man carrying a white bag coming from
the side of the staircase and going into a lane. The man kept the bag in
the lane which was in front of the parking shed.
20. PW 4 and PW 5 identified the accused-appellant, as the
same person, who had kept the bag in the lane, in a test identification
parade conducted by the Executive Magistrate, Ratnanjali (PW 21).
This very bag was recovered at the instance of the accused-appellant
under Panchnama and packed in a packet (Ex.35 and Ex.36). Both PW
4 and PW 5 identified the bag as the same bag which had been carried
by the accused-appellant and dumped in the lane.
21. It is stated that on 29.01.2013, the accused-appellant was
produced before Dr. Thakur, the Casualty Medical Officer in Navi
Mumbai Municipal Corporation Hospital (PW 16). Dr. Thakur collected
blood of the accused-appellant in two plastic containers provided by the
Forensic Science Laboratory, sealed the packet containing the plastic
containers, filled in the identification form, attested the photograph of
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the accused-appellant and obtained thumb impression of the accusedappellant on identification form
22. The clothes of the accused-appellant, the white plastic bag,
the clothes of the deceased, sealed bottle containing blood of the accusedappellant and his semen, hair and nail were sent to the Forensic Science
Laboratory. The blood, hair, nail, vaginal swab and anal swab of the
victim were also sent to the Forensic Science Laboratory. The reports
received by the Investigating Officer, Bhong (PW 26) from the Forensic
Science Laboratory showed that D.N.A. profile of blood detected on
the plastic bag, orange shirt of the deceased and sari cum bed-sheet
seized from the house of the accused-appellant was identical with D.N.A.
profile of the deceased victim. The reports also showed that D.N.A.
profile test of semen conducted on underwear (Bermuda pants) of the
accused-appellant, and the vaginal swab and anal swab of the victim
matched the D.N.A. profile of the accused-appellant.
23. Charges were framed against the accused-appellant under
Sections 363, 364, 367, 377, 302, 201 and 376 or alternatively 376(2)(f)
of the Indian Penal Code. Charges were also framed under Sections 3,
4 and 5 of the Prevention of Children from Sexual Offences Act
(hereinafter referred to as 'POCSO). The accused-appellant pleaded
not guilty and claimed to be tried. His defence was of denial and false
implication.
24. The prosecution examined 27 witnesses. No witnesses were
examined on behalf of the accused-appellant. Shorn of unnecessary
details, the first prosecution witness, being the complainant (PW 1),
deposed that when he returned home at around 3.20 a.m. on 23.1.2013,
after frantically searching for his daughter, he found his daughter lying
naked in front of the door of his house. She was still and there was no
movement. He informed the police. The victim was taken to Navi
Mumbai Corporation Hospital where she was declared dead. PW 1
described the injuries on the victim i.e. redness on both shoulders and
both thighs. He said there was blood in the private part of the victim and
there was a laceration in the vagina. The anus was swollen. He identified
the complaint and stated that its contents were correct. PW-1 identified
the following articles: -
a.
A sealed packet which contained a black thread worn by the
victim (Marked as Articles 1 and 1A).
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b.
A sealed packet containing a plastic bag of surf excel powder
of 1.5 kg (Marked as Article 2 and 2A).
c.
A packet containing two pieces of CD (Marked as Articles 3
and 3A.
d.
One sealed packet containing an orange coloured shirt, which
he identified as shirt of the victim. (Marked as Articles 25 and
25A)
e.
Another sealed packet containing black half pants which the
witness identified as pants of the victim. (Marked as Articles 24
and 24A)
25. PW-1 deposed that his daughter, the victim, had been raped
and murdered. In his cross-examination, he admitted that he had in
course of his examination expressed suspicion against one Arun Pawar.
Records reveal that the said Arun Pawar, a worker of the Shiv Sena
Party had been arrested, but later released and charges against him
dropped after investigation.
26. The 2nd Prosecution Witness (PW 2), being the wife of the
complainant, and mother of the victim, in essence, reiterated what her
husband had said. She also identified the black thread and the clothes
worn by the victim. She also reiterated that initially she and her husband
being the complainant had suspected that Arun Pawar was the culprit.
She, however, denied that there had been any compromise between the
complainant and his wife (PW 2) and the said Arun Pawar.
27. The 3rd Prosecution Witness (PW 3) is a pancha, who
signed on a panchnama at the hospital. She only put her signature on the
packets containing the thread and the clothes of the victim. She also
described the injuries on the victim. None of the first three witnesses
have said anything to even suggest who could be the culprit.
28. The 4th Prosecution Witness (PW 4) who claims to run a
construction business, stated that he had business dealings with persons
residing at Koprigaon. On 22.1.2013 he had gone to meet Parshuram
Thakur at the Shiv Sena Office at Koprigaon. His friends Sanjay Govari
and Devidas Dalavi, a resident of Airoli were also there at the office.
This witness deposed that after coming out of the Shiv Sena Office, he,
Sanjay Govari and Devidas Dalavi were standing below a shed in front
of a building near the said Office. While they were standing below the
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shed, they saw an old man come from the side of the staircase, holding
a white bag, which he kept in the lane which was in front of the parking
shed. The old man was short and except for Bermuda pants that he had
been wearing, he was bare bodied. According to this witness, he along
with Devidas Dalavi and Sanjay Govari once again went to the office of
Parshuram Thakur after a few days, when Parshuram Thakur told them
about the rape and murder of a girl in a building in front of his office,
which had taken place on 22.1.2013.
29. This witness stated that on hearing of the incident, he told
Parshuram Thakur that on 22.1.2013 that he had seen an old man going
into the lane in front of the shed under which they were standing, with a
bag. Parshuram Thakur then told this witness to inform this to the police.
On 27.1.2013, this witness along with Sanjay Govari who has also deposed
as the fifth witness, went to the police station, met the police officer and
disclosed what he had seen, which was recorded by the police.
30. Thereafter on 7.2.2013, this witness received a letter informing
him that he should meet the Tehsildar. On 8.2.2013, this witness along
with Sanjay Govari and Devidas Dalavi went to the Tehsildar, and
thereafter, along with another lady, went to Taloja jail where he identified
the accused-appellant as the person who had kept the bag in the lane.
31. This witness identified a white colour plastic bag taken out
from a bag, marked Articles 23 A and 23. He also identified the Bermuda
pants as the same pants worn by the accused-appellant. In crossexamination, he said that the old man with the bag did not arouse his
suspicion. If his suspicion had been aroused, he would have gone to the
police station the same day.
32. The 5th Prosecution Witness Sanjay Kamlakar Govari
(PW 5) reiterated what had been stated by PW 4. He also identified the
plastic bag as the same one which had been dumped in the lane by the
accused-appellant. He read out the description printed in the inner side
of the plastic bag "crystal white sugar sulphiton Jawahar sugar hupari
Kolhapur (Maharashtra State) India S-30 sucrose 50 kgs. 2009-2010
best before 3 years". In cross examination this witness stated that he
had not seen any identification mark on the white bag on that day and he
also stated that when he saw the white bag, he did not have any suspicion.
He reiterated that he had seen the old man dropping the white plastic
bag in the lane.
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33. The 6th Prosecution Witness (PW 6), a teacher and a
resident of Dudhanoli, Taluka Murbad, District Thane deposed that the
accused-appellant had tried to outrage her modesty when she had gone
to relieve herself in the open field in the year 1998 i.e. about 15 years
before the present incident. She said that she and her husband had
beaten up the accused-appellant and that night, the accused-appellant
left the village permanently. The aforesaid incident has no connection
with the rape and murder of the victim. In cross examination she admitted
that she had not lodged any complaint against the accused-appellant.
34. The 7th Prosecution Witness (PW 7), a Homeopathic Doctor,
deposed that on 24.1.2013 at about 7 p.m. the accused-appellant had
visited her complaining of uneasiness. She said she noticed that the
accused-appellant was suffering from tension and his blood pressure
was slightly high. She thought that the accused-appellant might be
suffering from acidity and accordingly prescribed medicines. The
evidence of this witness does not by any stretch of imagination, establish
the guilt of the accused-appellant for the offence alleged.
35. The 8th Prosecution Witness (PW 8) an Associate Professor
in Terana Medical College, Surgery Department deposed that on 25th
January, 2013 he was on call duty at Navi Mumbai Municipal Corporation
General Hospital. On that day he examined the accused-appellant who
had been brought by the police. On examination, the accused-appellant
appeared to be in sound physical and mental condition. On examination
of private part that is genital, no external injury was found but "bilateral
scrotal enlargement was seen". Apart from that there was no external
injury. Genital size was normal. There was no external deformity in
genital. Testicular reflex was normal. Penis was uncircumcised, Smegma
was absent. There were no signs of sexually transmitted disease. There
were no Injuries on glans penis.
36. This witness deposed that glance and sulcus was washed and
washed material was collected in a glass bulb for examination. Blood
was collected for blood grouping and examination. Samples of pubic
hair and scalp hair were also collected. There was nothing to suggest
that the patient was impotent. However, the witness volunteered that on
physical examination it was not possible to draw 100% conclusion about
potency. The evidence of this witness also does not contain anything
material, that points to the guilt of the accused-appellant , for the offence
alleged.
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37. The 9th Prosecution Witness (PW 9), a driver by occupation,
is the Panch for the yellow shirt, blue pants and blue Bermudas under
the pants of the accused-appellant which had been seized by the police.
His evidence reveals that these clothes were found on the body of the
accused-appellant on 25th January, 2013 at about 1.45 P.M., that is,
almost 48 hours after the incident.
38. The 10th Prosecution Witness (PW 10), Parshuram Mahadu
Thakur, a Builder in the business of construction, owned an apartment in
a building in the ground floor of which there was a Shivsena office. He
said that on 23rd January, 2013 at about 7.15 a.m., police officer Dighe
called him near Om Sai Niwas. PW 10 stated that he had shown the
police officer the spot where the dead body of the victim had been found.
By that time, the dead body had been removed. He also deposed that at
the spot, a bag of Surf Excel and two pieces of CDs were found. On
the bag of Surf Excel there were some blood stains. The bag of surf
excel and pieces of CDs were separately packed by the police. The
police recorded spot panchnama. PW-10 identified his signature in the
panchnama and deposed its contents were correct.
39. This witness deposed that PW Nos. 4, 5 and an agent Dalavi,
used to come to his office during the period between 19th January, 2013
and 22nd January, 2013. On 22nd January, 2013, they had come to
his office at around 2/2.30 P.M. and they were there in his office till
4.30 p.m.
40. This witness said that on 26th January, 2013 the aforesaid
persons again came to his office for discussion in relation to a plot.
While talking to them, this witness told them that on 22nd January, 2013
there had been rape and murder of a five year old girl. The police were
inspecting a bag. On hearing this, PWs 4 and 5 and Dalavi mentioned
that they had seen a man who seemed frightened, drop a bag. This
witness deposed that he had advised the aforesaid persons to go and
inform the police. Thereafter, the three persons left.
41. This witness stated that, on 27th January, 2013 he was called
by A.P.M.C. police station and his statement was recorded. This witness
also deposed that he knew the accused-appellant, who had been residing
in Room No.8 of Om Sai Niwas building as a tenant. The family members
of the victim were residing in Room No. 3 in the same building. The
tenement of the accused-appellant and as well as the deceased victim
are in the ground floor of Om Sai Niwas building.
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42. Significantly there are inconsistencies between the statement
of this witness and the statements made by PW 4 and PW 5, who did
not say that the man dropping the bag seemed frightened. On the other
hand they said that the man did not arouse their suspicion.
43. The 11th Prosecution Witness (PW 11), Arvind Madhavji
Gajara is the Panch in whose presence, the tenement of the accusedappellant was searched. He deposed that on 25th January, 2013 he had
gone to Koparigaon in connection with his business. He saw that many
persons had gathered near the Om Sai building. It was about 5.00 p.m.
The police constable Rane called this witness. At that time the accusedappellant, a photographer and a panch by the name of Patil were was
also present. At the request of the police he agreed to act and acted as
Panch. The police took him to room No.8 of Om Sai apartment. A
police officer rang the bell at the door. It was opened by a lady, who said
that her name was Nisha. The police officer told Nisha that they wanted
to search the house and asked whether she had any objection. Nisha
replied that she had no objection.
44. This witness said there was one room which was partitioned
and there was a kitchen. There was a sofa on which a bed sheet was
lying. They noticed blood stains on the bedsheet. There were also
blood stains below the sofa set.
45. This witness deposed that one of the persons in the search
team scratched the blood stains to collect the dried blood. In the presence
of this witness, the blood stained sheet on the sofa set, a cloth for cleaning
the floor tiles lying on the window, a saree used on the bed as a bed
sheet were also packed. In all six articles were seized and six labels
were prepared. A bag in which the articles were packed was separately
marked. The evidence of this witness only establishes that the tenement
of the accused-appellant was searched with the consent of the accusedappellant's daughter and some articles seized. During the search blood
stains were noticed, which were scraped for examination.
46. The 12th Prosecution Witness (PW 12), named Mustaqali
Asgarali Ansari, a Carpenter by profession stated that on 26th January,
2013, he went to fill petrol in his motor-cycle at a petrol pump near
APMC police station at about 3.00 p.m. At that time, a police constable,
by name Mandole, called him and told him to come to APMC Police
Station. He went to the APMC police station along with the constable.
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In the police station, one police officer by name Bhong and another
panch More, one lady police and three police constables were present.
The accused-appellant, whom this witness identified in Court, was also
present in the police station.
47. According to PW 12, in the police station, the accused appellant
made a statement that he had kept the dead body of the girl in a bag and
kept the said bag behind the staircase.
48. PW 12 deposed that the accused-appellant was taken to the
building and from inside he took out clothes from the white bag, the
capacity of which might be 50 to 60 kgs. He identified the clothes
namely the black half pants and an orange shirt. PW 12 deposed that
the clothes were taken out from the bag.
49. Significantly even though this witness (PW12) was a panch to
the seizure of the white bag, the printing inside the bag which the PW
claims to have seen, were not noticed by him.
50. The 13th Prosecution Witness Dr. Bhushan Vilasrao Jain
(PW 13) conducted the post mortem examination on the body of the
victim. He noticed the following injuries:
"(1) Lacerated wound seen over posterior vaginal wall with width
0.5 c.m. muscle deem hymen torn at 6 O' clock position reddish
blood oozes out.
(2) Lacerated wound over right lateral vaginal wall 1 x 0.2 c.m.
muscle deep reddish, blood oozes out.
(3) Two lacerated wounds seen over anal region at 12 O'clock
and 3 O'clock position of size 2 x 1 c.m. mucosa deep and 1 x 0.5
c.m.