Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 2071 (BOM)

Prabhudayal v. State of Maharashtra

2014-09-26

B.R.GAVAI, V.M.DESHPANDE

body2014
JUDGMENT V.M. Deshpande, J. 1. Sagar, a boy studying in IV standard in the Primary School was done to death by his assailant, after the assailant satisfying his carnal lust against the order of nature, is the sordid tale of the present Appeal. The present Appeal is directed against the judgment and order of conviction passed by learned Additional Sessions Judge-2, Wardha in Sessions Trial No. 96 of 2010, by which the learned Court below convicted the appellant on the following counts: (i) For the offence punishable u/s. 364 I.P.C. the appellant was sentenced to undergo R.I. for three years and to pay a fine of Rs. 1,000/- and in default, to undergo S.I. for one month. (ii) For the offence punishable u/s. 377 I.P.C. he was sentenced to undergo R.I. for five years and to pay a fine of Rs. 1500/- and, in default, to undergo simple imprisonment for one and a half months. (iii) For the offence punishable u/s. 302 I.P.C. he was sentenced to suffer R.I. for life and to pay a fine of Rs. 2,000/- and in default, to undergo S.I. for two months. The learned Judge of the Court below has directed that the sentences for the offence punishable u/ss. 364 and 377 of the I.P.C. shall run concurrently, however, the sentence for the offence punishable u/s. 302 IPC, will run after completion for the offence punishable u/s. 364 and 377I.P.C. and the total effect of imprisonment shall not be less than 18 years. The prosecution case as it unfolded during the course of trial, shorn of unnecessary details, can be narrated as under: Asaram Chormale (PW 13) was discharging his duties as Police Station Officer at Police Station, Girad on 28.3.2010. On the said day, he got information that dead body of a boy was found at the foot of Faridbaba Tekdi, Girad, near Kabristan (burial ground). He along with his staff, therefore, went there to note a dead body of boy was at that place, besides the nullah. People gathered there. Chayyabai (PW 1) identified that dead body to be of her son Sagar Pise. She was sent to Police Station to lodge the report. Chhayabai lodged her oral report before the NPC Pendam, the said is available at Exh. 26 On the basis of the same, a crime was registered vide Crime No. 23/2010. People gathered there. Chayyabai (PW 1) identified that dead body to be of her son Sagar Pise. She was sent to Police Station to lodge the report. Chhayabai lodged her oral report before the NPC Pendam, the said is available at Exh. 26 On the basis of the same, a crime was registered vide Crime No. 23/2010. Pendam then sent the Case Diary to Chormale at the spot of the incident. Exh. 26 is the oral report of Chhayabai Pise (PW 1). Her report discloses that she is having two sons one Sagar and another Akash. Sagar was elder and was taking education at Primary School, Girad in IV standard. On 26.03.2010 at 7 o' clock, she left her two sons in the School. At 11 o' clock, younger son Akash came to the house; however Sagar did not. Therefore, Chhayabai started searching him. In that search, she had been to the fair that was going on near Ram Mandir. She searched Sagar at the place where zhoola/swing was there. However, she could not notice him. At 6 o'clock in the evening, her nephew Praful came and disclosed her that during the recess of the school at 9.30 a.m., Sagar went towards the Bus Stop along with Zhoolewala. On getting this information, the first informant and Praful went towards the Bus Stop; however in vain and, therefore, she went to Zhoolewala whose name is Prabhudayal Rathod (appellant). The first informant enquired with Zhoolewala about the whereabouts of her son. However he replied that he had no knowledge. On 26.3.2010 therefore, she could not find her son. Therefore, on 27.3.2010 a missing report was lodged and in meanwhile, she searched for her son with her relatives. On 28.03.2010 in the morning, she got information that one boy in dead condition is laying near Girad hillock. Therefore, she rushed to the spot and found to her utter dismay and fear, the dead body to be of her son. The printed F.I.R. is at Exh. 27. 2. After the criminal law was set into motion, PW 13 Asaram Chormale, prepared the spot Panchnama in presence of Panchas. He found injuries on the dead body. The clothes of the dead body were also stained. The dead body was having white shirt, blue full pant, a tie and belt i.e. of a school uniform. 27. 2. After the criminal law was set into motion, PW 13 Asaram Chormale, prepared the spot Panchnama in presence of Panchas. He found injuries on the dead body. The clothes of the dead body were also stained. The dead body was having white shirt, blue full pant, a tie and belt i.e. of a school uniform. He also noticed that one chappal was on the leg of the dead body and another chappal was laying there. After removing the clothes on the dead body, he found that anus portion was having reddish swelling which was little turned into white. He also found a pair of chappals and sky blue colour nicker of a full grown man laying at the spot of incident and noticed stains of stool, blood and semen in the nicker. Accordingly, he prepared the spot Panchnama. It is at Exh. 33. The inquest was done over the dead body in presence of Panchas (Exh. 34). Without wasting any time, he called the Dog Squad at the spot of the incident. He handed over the two chappals and the underwear to the Dog Handler who gave its smell to the dog. He also seized the bloodstained stone, chappals of the victim, bloodstained soil and ordinary soil by recording the Seizure Panchanama (Exh. 36). Photographer was also called who got photographs of the place of incident. Those are placed on record. The Dog Handler gave a smell of chappals and knicker to the trained dog who made way and went near the rolling swing where the appellant was residing. The Dog Handler gave a report of the same (Exh. 66). He called then the appellant on suspicion. The parade through dog was also made. In the said parade, the Dog Handler gave smell of the chappals to the dog. The dog went near the appellant/accused and barked at him and put his front legs on the chest of the appellant. That time, the appellant was standing at fourth position in the row of six persons. Thereafter the Investigating Officer asked the persons to change their position and accordingly, it was done. Thereafter the Dog Handler gave a smell of knicker. The Dog went near the appellant/accused and barked at him and put his legs on his chest. That time, the appellant was at sixth position in that row. The Dog Handler prepared one joint report about these events. Thereafter the Dog Handler gave a smell of knicker. The Dog went near the appellant/accused and barked at him and put his legs on his chest. That time, the appellant was at sixth position in that row. The Dog Handler prepared one joint report about these events. It is at record at Exh. 37. That pair of chappal and knicker were also seized by recording seizure Panchnama (Exh. 35). Those articles were sealed. He, therefore, arrested the appellant on the same day. The Police Officer then sent the dead body of Sagar for postmortem through a constable. Dr. Madhav Vibhute (PW 4) conducted autopsy over the dead body. The Investigating Officer also recorded the statement of witnesses. After completion of the entire investigation, the Investigating Officer sent chargesheet to the court of law. The learned Magistrate found that the case is exclusively triable by the Court of Sessions Hence he passed the order of committal. 3. Learned Sessions Judge, Wardha on 3rd August, 2010 framed a charge against the appellant for offence punishable u/ss. 363, 364, 377 & 302 of the IPC. The appellant denied the charge and claimed for his trial. In order to bring home the guilt, the prosecuting agency examined in all 13 witnesses and also relied upon various documents duly proved during the course of the trial. After a full dressed trial, the learned Judge of the Court below recorded the finding of guilt against the appellant and sentenced him, as mentioned in the preceding paragraph. It is against the said judgment and order of conviction, the present Appeal is filed. 4. We have heard Shri D.V. Chauvan, learned counsel (appointed) appearing for the appellant and Mr. R.S. Nayak learned Addl. Public Prosecutor for the State. Both the learned counsel submitted their case in detail by elaborating various aspects of the prosecution case. They took us through the entire record, in order to enable us to reappreciate the evidence brought on record by the prosecution during the trial. According to learned counsel for appellant, the conviction against the appellant cannot be sustained. He supplemented such arguments by giving reasoning that there is no ocular evidence in the prosecution case. He submitted that the entire case of the prosecution is based on theory of "last seen together". According to learned counsel for appellant, the conviction against the appellant cannot be sustained. He supplemented such arguments by giving reasoning that there is no ocular evidence in the prosecution case. He submitted that the entire case of the prosecution is based on theory of "last seen together". He submitted that the chain of circumstances as sought to be proved by the prosecution, is not complete and, therefore, the benefit of doubt must be given in favour of the appellant. Hence he prayed for setting aside the conviction. Per contra, Mr. R.S. Nayak, learned Addl. Public Prosecutor, with vehemence has submitted that the prosecution has established its case beyond reasonable doubt. The chain of events in the present case, points out finger towards the appellant and the appellant only. Hence, he submitted that the Appeal be dismissed. 5. Firstly, in order to ascertain the nature of death of Sagar, let us scrutinize the evidence in that behalf. Exh. 34 is the inquest Panchnama. The inquest was done over the dead body in the presence of Panchas. On examination of anus it was found as under: 6. The prosecution witness PW 4 Dr. Madhav Vibhute conducted the postmortem over the dead body of Sagar when the dead body was referred to him. The postmortem was conducted by Dr. Madhav along with Dr. Archana Dahake. The Doctor noticed that the deceased was 12 year old boy. They found injury on the external genitals and deceased was a passive agent. His anal orifice was swollen, dilated, tender, bruising seen around anal fissures of mucous membrane was seen. They found the following surface injuries: (1) Multiple abrasion and contusion all over the body. (2) Lacerated wound on the skull on temporal region 8 x 4 c.m. (3) Fracture of right femur swelling and tenderness. (4) Swelling and tenderness on the right forearm and suspected fracture and radius and ulna. (5) Swelling over the left chest region. (6) Abrasions and contusion of neck region. (7) There were fractures of 4th, 5th and 6th rib of chest. The Doctor noticed that all those injuries were ante mortem. During the internal examination, they found that there was lacerated wound on scalp with subdural haemorrhage of skin and brain. The thorax examination revealed lyringes troika and bronchi were congested, right lung was congested. (7) There were fractures of 4th, 5th and 6th rib of chest. The Doctor noticed that all those injuries were ante mortem. During the internal examination, they found that there was lacerated wound on scalp with subdural haemorrhage of skin and brain. The thorax examination revealed lyringes troika and bronchi were congested, right lung was congested. According to the opinion of the Doctor, the deceased died due to injuries on vital organ brain due to forceful injury by hard object leading to massive hemorrhage. They also noticed signs of sodomy occurred before death. The postmortem report is at Exh. 46. From the postmortem report (Exh. 46) the evidence of PW 4 Dr. Madhav and inquest Panchnama (Exh. 34) it is amply proved and clear that Sagar died homicidal death. Before his death, sodomy was committed on him. 7. Once we reached to the aforesaid conclusion, then next question that has to be answered by this Court is, as to whether the appellant is responsible for such a heinous act as found by the learned Court below on he being such charged by the prosecution. 8. In the present case, there is no account of eye witness nor the act of sodomy will be done in presence of any one. The entire case of the prosecution is based on circumstantial evidence. In Hanumant Nargundkar vs. State of Madhya Pradesh, AIR 1952 SC 343 the Apex Court has ruled as to how the circumstantial evidence should be appreciated, which runs as under: "10. Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the Courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Ex. P3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. P3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. vs. Hodge, (1838) 2 Lewin 227 where he said: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them incomplete." It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex. In spite of the forceful arguments addressed to us by the learned Advocate General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex. P3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which, warning was uttered by Baron Alderson in the above mentioned case." Further, in a landmark case Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 : 2009 ALL SCR (O.C.C.) 281, the Hon'ble Apex Court ruled the following five golden principles which the Hon'ble Court has said as Panchsheel on proof of a case based on circumstantial evidence; those are: (1) The circumstances from which the conclusion of the guilt is to be drawn should be fully established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Now let us test the case of the prosecution and the circumstances as appearing against the appellant on the touchstone of above Panchsheels. 9. As observed above, the deceased was taking education in IV standard at Primary School, Girad. PW 10 Archana Mahajan was working as a teacher at Zilla Parishad Primary School, Girad. On 26.3.2010 the charge of Headmistress was with her. At 6.45 a.m. she came to the School. Sagar, the deceased, was a student of Class IV Section (A). On the said day, regular class teacher of Class IVA was on training and, therefore, the charge of that class was with Ku. Archana as a Class Teacher. That was the reason for this prosecution witness to attend Standard IV(A) on the said day. In order to prove her presence in the School, extract of Attendance Register is there at Exh. 78. When attendance was taken deceased Sagar was present. Archana as a Class Teacher. That was the reason for this prosecution witness to attend Standard IV(A) on the said day. In order to prove her presence in the School, extract of Attendance Register is there at Exh. 78. When attendance was taken deceased Sagar was present. His presence was taken on the Attendance Register which is at Sr. No. 3 of the said Register. The said Attendance Register on 26th March 2010 is in the handwriting of this prosecution witness. In order to prove the presence of Sagar in the school, the Attendance Register duly maintained by the school is placed on record. The xerox copy is placed at Exh. 79 which shows presence of Sagar in the school. The school recess was between 9.00 a.m. and 9.30 a.m. After the recess were over, Ku. Archana (PW 10) could not notice Sagar in the Class and even though he was absent from this class, his schoolbag was found there. The school closed at 10.30 am. That time also, Sagar did not return and his school bag remained there. The evidence of this prosecution witness has remained to be challenged by the defence on vital aspects. From her evidence, it is amply clear that Sagar attended the school on 26.3.2010, his attendance was marked. He was in School till 9.00 o' clock and after the recess, on resumption, he was not found to be in class. 10. Praful Satpute (PW 2) was the classmate of deceased Sagar. During the recess on the day of the incident, Sagar went towards the temple. He also followed him. Sagar then went towards Zhoolewala. Sagar then brought water in two pots for said Zhoolewala. Both of them then left towards the Bus Stand followed by Praful. However Zhoolewala (appellant) told him not to follow them and go out. Thereafter he came back to the School. At the time, Sagar was wearing school uniform, is the version of this boy Praful from the witness box. His evidence is not at all shattered. 11. Thus, it is clear from the evidence of these aforesaid two witnesses that on 26.03.2010 Sagar had been to his School and he attended the School till recess and during the recess he left the school and went towards Bus Stand along with Zhoolewala i.e. the appellant. 12. His evidence is not at all shattered. 11. Thus, it is clear from the evidence of these aforesaid two witnesses that on 26.03.2010 Sagar had been to his School and he attended the School till recess and during the recess he left the school and went towards Bus Stand along with Zhoolewala i.e. the appellant. 12. There are other three witnesses in the prosecution case to show that the appellant was in company of deceased Sagar. They are (i) PW 6 Manda Jambhole; (ii) PW 5 Shanikumar Shambharkar and, (iii) PW 9 Kalavati Dandekar. Shanikumar Shambharkar was serving as a Helper in the hospital of Dr. Ravindra Dhare. His evidence would reveal that prior to ten months of recording of his evidence, one male person came to the hospital with 2/3 boys having school uniforms. The said person claimed injury to his finger. Two boys left him and one boy remained with him. The said male and boy jointly left towards the Bus Stand. Dr. Dhare prescribed him some medicine on a chit whose handwriting Shanikumar has identified and the said chit is at Exh. 54 and the name of that patient is shown as Prabhu and the date of examination is shown as 26.3.2010. It is to be noted that since this prosecution witness was working with Dr. Dhare, it cannot be unnatural if he identifies his master's handwriting. Exh. 54 bears a rubber stamp of Dr. Ravindra Dhare. The date is 26.03.2010 i.e. the date when Sagar lastly attended the school. The name of the patient is shown as Prabhu. The name of the present appellant is Prabhudayal Rathod. Therefore, merely the abbreviated name of the appellant is found place on Exh. 54 that, by itself, will not lose its evidentiary value. 13. Another witness is PW 6 Manda Jambhole. When she was standing in her courtyard, she saw one school boy along with one man and both of them were going towards the hill of Faridbaba. The boy was having school uniform. Her evidence also reveals that at about 11.00 a.m. the man was returning all alone. Her evidence is criticized on the count that she read over her statement prior to her evidence. The boy was having school uniform. Her evidence also reveals that at about 11.00 a.m. the man was returning all alone. Her evidence is criticized on the count that she read over her statement prior to her evidence. No doubt true, stealthily reading the statement has to be deprecated, but at the same time if there is nothing in the evidence to shatter the truthfulness of her version merely because the statement was referred that by itself, her evidence would not render worthless especially when the evidence is having corroboration from other witnesses. 14. PW 9 Kalavati Dandekar also noticed a boy and a man proceeding towards Kabristan, that time she was washing her clothes in the courtyard. The boy was wearing school uniform and the man was wearing an orange colour T-shirt, as claimed by PW 6 Manda Jambhole. After two days when many persons were going towards the Kabristan she also went there just to saw the boy laying in a dead condition. The same clothes were on the person of the dead body. 15. In the present case during the course of investigation, the Investigating Officer has conducted the test identification parade by making a request to Naib Tahsildar Ashok Devlikar (PW 7). On 23.4.2010 the Tahsildar gave a letter to PSO Girad for holding identification parade of the accused. That time the accused was in Wardha jail. He called two panchas and proceeded to Wardha jail on the same day. With the help of the Jailor, he arranged the identification in a hall. He called six persons who were of the same age group of the appellant and also called the appellant. He then asked him to stand in a row. He gave choice to the appellant to stand at any position of the row. Thereafter the appellant stood at position No. 6. All those six dummies and appellant were in simple dresses. All other six persons were from the jail. Thereafter he called PW 2 Praful inside the jail and then at identification hall. He asked Praful to identify the offender, if any, from that row by putting hand on that person. Thereafter Praful (PW 2) went to the persons stood in the row and identified the appellant who was standing at the position No. 6 by putting his hands on his person. He asked Praful to identify the offender, if any, from that row by putting hand on that person. Thereafter Praful (PW 2) went to the persons stood in the row and identified the appellant who was standing at the position No. 6 by putting his hands on his person. Thereafter, the Naib Tahsildar asked the appellant to change his clothes and his position if he required. The appellant changed his clothes and stood at position No. 2 in the row. Thereafter he called PW 5 Shanikumar Shambharkar. He also identified the appellant. If the evidence of Shanikumar is seen, it is noticed that he has also corroborated the said fact that he was called in a District Prison, Wardha and he has identified the appellant. The identification parade Panchnamas are duly proved by PW 7 Ashok Devlikar. PW 12 Dr. Harish Wankhede to whom the stone was referred found that the injuries found in the postmortem report could be caused by the stone examined by him. 16. Exh. 109 is the Chemical Analyser's report. The muddemal articles were sent to C.A. in a sealed condition. Exh. 109 the CA report shows that when it was taken up for its examination the seals were intact. Blood was detected on the full pant of the appellant and pair of chappal belonging to the appellant were also stained with human blood. The stone was also stained with the human blood. Merely because the blood group of the blood stains found on those articles is not determined, the CA report will not lose its importance. Many a times, due to disintegration, it is quite possible that the blood group is not determined. What is important is that on the clothes of the appellant, chappals of the appellant were found to be stained with human blood. The appellant has not given any explanation for the same. 17. Thus, the following are the circumstances as appearing in the prosecution case: (1) On 26.3.2010 Sagar was left for his school in the morning. (2) Sagar attended his class of IV standard till 9 o' clock. (3) During recess Sagar left the school and went towards the appellant and was followed by PW 2 Praful. (4) Praful was directed by appellant not to follow them and then proceeded towards Bus stand. (5) The appellant and Sagar went to hospital of Dr. Ravindra Dhare. (6) From hospital of Dr. (3) During recess Sagar left the school and went towards the appellant and was followed by PW 2 Praful. (4) Praful was directed by appellant not to follow them and then proceeded towards Bus stand. (5) The appellant and Sagar went to hospital of Dr. Ravindra Dhare. (6) From hospital of Dr. Dhare both of them left towards Bus Stand. (7) Both were proceeding towards Kabristan. (8) When the deceased was in the company of the appellant the deceased was wearing his school uniform. (9) At 11.00 a.m. only the appellant returned back to the village. (10) On 28.2.2010 the dead body in a decomposed condition was found near Kabristan. (11) Chappal and underwear of the appellant were found at the spot of the incident. (12) The trained dog took smell of the aforesaid articles and identified the appellant as its owner. (13) During the identification parade held by Naib Tahsildar the prosecution witnesses identified the appellant as a person in whose company deceased Sagar was. (14) The postmortem report shows that sodomy was done on the deceased and in order to see that the said heinous act should not be disclosed, the appellant has committed the murder of the small boy. (15) CA report (Exh. 109) shows the existence of human blood on the articles belonging to the appellant and for which there is no explanation. (16) There is no explanation from the appellant as to when he has parted with the company of the deceased as to where and when he has parted his company with the deceased. (17) The time lag between the last seen of the deceased in the living condition in the company of the appellant that is on 26.03.2010 and recovery of dead body of Sagar in a decomposed condition on 28.3.2010 clearly shows that within a short span the deceased was seen to be live in the company of the appellant, Sagar was done to death. On the touchstone of Panchsheels principles as laid down by the Hon'ble Apex Court in Sharad Sarda vs. State of Maharashtra (supra) the aforesaid circumstance clearly show that the chain is complete and there is no reason to interfere with the judgment delivered by the learned Judge of the Court below. We concur with the finding of guilt and sentence recorded by the learned Court below. Consequently, we pass the following order: ORDER The Appeal is dismissed. We concur with the finding of guilt and sentence recorded by the learned Court below. Consequently, we pass the following order: ORDER The Appeal is dismissed. We place on record our deep appreciation for the valuable assistance rendered by Mr. D.V. Chauhan, Advocate who in a very short time has prepared himself in assisting the Court in a very able manner. The fees payable to the learned counsel appointed for the appellant are quantified at Rs. 7,500/-. However, the learned counsel graciously states that he does not desire to have the fees and same may be paid to the High Court Bar Library as a donation on his behalf. The Registry to do the needful in the matter. We also place a word of appreciation in respect of urgency and efficiency shown by PW 13 Asaram Chormale, the Investigating Officer. Appeal dismissed.